Joe's Auto Parks

JOE'S AUTO PARKS L & R Auto Parks, Inc., d/b/a Joe's Auto Parks, Car Wash and Service Station; Wilshire Car Wash, Inc.; and Ambassador Car Wash, Inc. and Miscel- laneous Warehousemen, Drivers & Helpers Local No. 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Cases 21 -CA- 15759 and 21 -RC- 15028 January 9, 1978 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On October 4, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's ex- ceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. IT IS FURTHER ORDERED that the objections in Case 21-RC-15028 be, and they hereby are, overruled. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for Miscellaneous Ware- housemen, Drivers & Helpers Local No. 986, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that said labor organization is not the exclusive represen- tative of all the employees, in the unit herein in- volved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to 234 NLRB No. 13 overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This con- solidated matter was heard before me in Los Angeles, Cali- fornia, on August 10, 1977. The charge in Case 21-CA-15759 was filed May 26 and amended June 17, 1977, by Miscellaneous Warehousemen, Drivers & Helpers Local No. 986, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America (herein Union). The complaint issued June 22, alleging violations by L & R Auto Parks, Inc., d/b/a Joe's Auto Parks, Car Wash and Service Station; Wilshire Car Wash, Inc.; and Ambassador Car Wash, Inc., as a single employer (collectively, Respondent), of Section 8(a)(1) of the National Labor Relations Act, as amended, herein the Act. An election in Case 21-RC-15028 was held May 26, 1977, among the parking lot, service station, and car wash employees at Respondent's one service station and three car washes in Los Angeles. The election derived from a petition filed by the Union on March 9, 1977, and a Deci- sion and Direction of Election issued by the Regional Di- rector for Region 21 on April 28. The election tally was 31 for and 44 against the Union, with 6 challenged and 2 void ballots. The Union filed objections to the conduct of the election on June I and, on August 10, the Acting Regional Director issued a Supplemental Decision and Order Directing Hear- ing and order consolidating cases and notice of hearing in which, after observing that the allegations of the complaint herein "involve similar and related issues raised by the objections," he ordered that the two matters be "consoli- dated for the purposes of hearing, ruling, and decision by an Administrative Law Judge." The parties were permitted during the hearing to intro- duce relevant evidence, to examine and cross-examine wit- nesses, and to argue orally. Posttrial briefs were waived. 11. JURISDICTION Respondent consists of three California corporations en- gaged as a single, integrated entity in the operation of a gasoline service station, three car washes, and several park- ing lots in Los Angeles. Its annual gross income exceeds $500,000 and it annually purchases goods and materials of a value exceeding $5,000 from outside California. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I Apparently through oversight. the Supplemental Decision did not issue, and was not served on Respondent, until dunng the hearing herein. Respon- dent waived any possible procedural infirmity on the record. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. IV. ISSUES The complaint alleges that Respondent violated Section 8(a)(l) of the Act in four instances in April and May 1977-once promising improved benefits to its employees and once threatening them with discharge or other reprisals to discourage their supporting the Union, and twice im- parting to them the impression that their union activities were under surveillance. The answer denies any wrongdoing. The objections matter raises the further question whether the same alleged misconduct interfered with free voter choice, requiring that the election be rerun. V. THE ALLEGED UNFAIR LABOR PRACTICES A. Paragraphs 8 and 12 Paragraphs 8 and 12 of the complaint allege that, on or about May 25, 1977, at Respondent's parking lot at 529 South Los Angeles Street, Jack Lumer, a vice president of one of the corporations, "promised employees economic and other benefits in order to induce them to abandon their support of, and activities on behalf of, the Union," thereby violating Section 8(a)(1). The testimony: Enrique Flores Moreno and Ignacio Fuentes were parking lot attendants for Respondent at the time of this alleged misconduct. They have been in the United States about 4 years each and have only a limited understanding of English, Spanish being their primary lan- guage. They testified through an interpreter. Moreno testified that during the afternoon of May 25- i.e., the day before the election-he and Fuentes were working together at the lot at 529 South Los Angeles Street when Jack Lumer drove in. Lumer first drove alongside Fuentes, according to Moreno, engaging him in conversa- tion outside Moreno's hearing. That conversation over, Moreno continued, Lumer got out of his car to check the tickets on some of the cars using the lot, then returned to his car and drove alongside Moreno, who was near the lot's exit. At that point, according to Moreno, Lumer removed two $50 bills from his shirt pocket and said to Moreno in English: "You vote for the company and I give it to you $100." Moreno assertedly replied, "Keep it," after which Lumer replaced the money in his pocket and drove out of the lot. Fuentes was standing nearby, Moreno added. Fuentes testified that, upon arriving at the lot, Lumer got out of his car to check parking tickets before talking to either him or Moreno. Then, according to Fuentes, Lumer returned to his car and drove alongside Moreno, where- upon Moreno said something to him about insurance and other benefits of union representation. Fuentes went on that Lumer presently removed some money from his shirt pocket-Fuentes could not tell how much-and said to Moreno: "If you don't want to vote for union, just take $100." Moreno replied, as Fuentes related, "Keep it; I don't want it," after which Fuentes said to Lumer: "Why don't you give me $100, and I don't vote for union." Lumer made no response, according to Fuentes, promptly driving out of the lot. Fuentes testified that Lumer did not speak to him at all that day. Lumer testified that he is the supervisor of the lot in question and visits it three or four times daily. He denied the $100 incident in toro, and that he had ever discussed the Union or the election with Moreno. He also denied that Fuentes ever offered to vote against the Union in return for $100. Credibility resolutions and conclusion: Lumer is credited that this incident did not occur. While certain discrepan- cies can insinuate themselves into the testimony of the most trustworthy of witnesses, particularly when transla- tion is involved, the discrepancies between Moreno and Fuentes were so pervasive as to indicate that they were reciting not what they had seen and heard, but rather from a script that covered only the central event, leaving the surrounding details to chance. Moreover, Lumer's demea- nor was persuasive. The testimonial base for this allegation having been dis- credited, it is without merit. B. Paragraphs 9, 10, and 12 Paragraphs 9 and 12 of the complaint allege that, in April or May 1977, at one of Respondent's parking lots, the same Jack Lumer "created the impression among employees that Respondent was engaging in surveillance of its employees' union or protected concerted activities," thereby violating Section 8(a)(XI). Paragraphs 10 and 12 allege that Harry Lumer, also a vice president, did likewise. The testimony: The aforementioned Ignacio Fuentes tes- tified that he attended two union organizational meetings before the election and that, before each, Jack and Harry Lumer separately said to him, "You are going to have a meeting tonight," or words to that effect. Fuentes further testified that the two Lumers made similar remarks to him before union meetings that he did not attend. Fuentes was unable to fix even an approximate date for the incidents, finally guessing that they occurred sometime in 1977. The parties stipulated that there were about 10 union meetings between October 1976 and the election, 5 of which were after the March 9, 1977, filing of the election petition. Jack and Harry Lumer both denied making the com- ments ascribed to them. Credibility resolutions and conclusions: The Lumers are credited that these incidents did not occur. Not only was Fuentes' testimony lamentably vague, but the Lumers' wit- ness-stand demeanor was more impressive than his. Be- yond that, Fuentes' veracity was found wanting, previously herein, in connection with the alleged $100 incident. The evidentiary underpinning for these allegations fail- ing, they are without merit. C. Paragraphs 11 and 12 Paragraphs 11 and 12 of the complaint allege that, on or about May 25, 1977, at Respondent's parking lot at 212 West Seventh Street, Gabriel Ruben, corporate secretary of one of the corporations, "threatened employees with dis- charge and other reprisals because they engaged in union 128 JOE'S AUTO PARKS or other protected concerted activities," thereby violating Section 8(a)(1). The testimony: Filiberto Birrueto Moreno was a parking lot attendant for Respondent at the time of this alleged misconduct. He, like Enrique Flores Moreno and Fuentes, has a limited knowledge of English and testified through an interpreter. This Moreno was the Union's election observer. He testi- fied that, between 4 and 5 p.m. on May 26, election day, Ruben came to the lot where he was working and said to him, in English: "Filiberto, you have to be after 5:30 o'clock in Third and Los Angeles [the election site] repre- senting the union elections. Anyway, you are going to have laid off tonight, you and your brothers." The election be- gan at 5:30. Moreno was one of three brothers working for Respondent. Ruben testified that, at the preelection conference, on May 25, the Union announced that Moreno was to be its observer; and so, later the same day, he went to Moreno's lot and told him that he had been chosen as the Union's observer and to be at the election site by 5:30 the next day. Moreno acted surprised and reluctant, according to Ruben, prompting Ruben to say that he had to do it and that relief would be arranged for him at work. Ruben denied saying anything about anyone being laid off. Ruben also denied seeing Moreno on May 26. Bernie Celaya, a business representative for the Union, admitted on rebuttal that, during the preelection confer- ence, someone from Respondent offered to tell Moreno that he was to be the Union's observer. Moreno affirmed, on rebuttal, that he told Ruben he did not want to be an observer. 2 In addition to allegations paralleling those in the complaint, the objec- tions allege that "company observers were asking employees whether or not they voted for the Union." and that "the Employer had a supervisor surveill- ing the pre-election meeting at the Union Hall the night before the election." No evidence was offered in support of either of these allegations. 3 Errors in the transcript have been noted and corrected. 4 All outstanding motions inconsistent with this recommended Order There is no evidence that the Moreno brothers or anyone else was laid off around the time of the election. Credibility resolution and conclusion: Ruben is credited that he said nothing to Moreno about anyone being laid off. Not only was his demeanor more convincing than Moreno's, but his rendition was richer in corroborating detail and seemed more plausible as well. Additionally, certain of the details provided by Ruben were verified by Celaya and Moreno on rebuttal, and there is the possibility that Moreno, because of an unfamiliarity with idiomatic English, may have taken something that Ruben said totally out of context. This allegation fails for want of credible evidentiary sup- port. V1. OBJECTIONS TO THE ELECTION Respondent having engaged in no misconduct during the pendency of the election, none of the objections can be sustained.2 CONCLUSION OF LAW Respondent did not violate the Act as alleged. Upon the foregoing findings of fact, conclusion of law, and the entire record,3 I hereby issue the following recom- mended: ORDER 4 The complaint is dismissed in its entirety. IT IS FURTHER RECOMMENDED that the objections be over- ruled in their entirety, and that a certification of election result issue. hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 129