Music-Vend Distributing Co.

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Music-Vend Distributing Company and John M. Salkin. Case 19-CA-5925 April 16, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO ) On January 30, 1973, Administrative Law Judge George H. O'Brien issued the attached Decision in this, proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. 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. The Board has considered the record and the attached 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: On October 25, 1972, a hearing was held in the above-entitled matter in Seattle, Washington. The complaint, issued August 18, 1972, is based on a charge filed July 6, 1972, by John M. Salkin and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act by Music- Vend Distributing Company, herein called Respondent. The complaint alleges in material substance that Respon- dent discharged John Salkin on March 7, 1972, because he demanded backpay from Respondent pursuant to a collective-bargaining' agreement then in effect between Respondent and Teamsters Union Local 353. Respon- dent's answer admits that Salkin was discharged and denies that any unfair labor practice was committed. Upon the entire record in this proceeding, including my observation of the witnesses, and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT Respondent is a Washington corporation engaged in the sale, distribution, maintenance, and repair of coin-operat- ed amusement and music equipment for the Pacific 202 NLRB No. 170 Northwest and Alaska. It handles amusement devices, novelty equipment, food, and various other types of vending equipment, juke boxes, and pool tables. It also handles Seeburg Muzac background music in the Greater Seattle and Western Washington area. Its direct sales outside the State of Washington have an annual value in excess of $50,000. Its shop mechanics are, and have been for more than 10 years, represented by Wholesale and Retail Delivery Drivers and Salesmen, Local Union No. 353, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The collective-bargaimng agreement between Respondent and the Union requires that employees covered thereby become members of the Union after 30 days and remain members as a condition of employment. It contains a broad grievance clause ending in binding arbitration. Its wage scale for apprentice mechanics contemplates an appren- ticeship period of 2 years. Respondent's president and general manager, Raymond M. Galante, has held his present position for over 10 years. His practice has been to hire trained journeymen mechan- ics because the difference in pay was too small to justify the expense of training. Prior to February 1972, Respon- dent had hired only one apprentice mechanic. He complet- ed his apprenticeship and is working as a journeyman for Respondent. Sol Esfeld, president of American Discount Corporation, has been in the general financing business in Seattle for over 50 years. His company finances most of Respondent's credit sales. John Salkin is the grandson of Esfeld' s sister. In February 1971, he received a head injury and, on Esfeld's advice, voluntarily entered Northern State Hospital, a mental hospital. He remained there about 6 weeks and it was a "homfying experience." Upon his release, Esfeld obtained employment for him with one of Esfeld's customers, Amusement Sales Company. When the opera- tor of Amusement Sales told Esfeld that "with problems arising from time to time" he would not keep Salkin any more, Esfeld went to his old friend, Galante. Esfeld testified: I told him of the situation and that this boy was desperately in need of work and we had to do something to keep him employed, to get him straight- ened out so that he would become a responsible person in the community and get away from the problems which he had been involved with. I felt the only way to do that would be for me to get him a permanent job. So I went to Mr. Galante and I told him this thing. He told me he didn't need anyone at the time. I said, "You put him on anyway. Even if I have to pay his wages I want you to employ the man so he will be working and keep out of trouble that way. I don't care what kind of work it is, or what you pay him, just so that he will have a job." So finally he said, "All right, you send him down to me and I will see what I can do." Salkin presented himself to Galante in June 1971. Galante told Salkin that he had talked to Salkin' s great- uncle and while he did not have an opening, he would hire Salkin as a cleanup man and general handyman if he MUSIC-VEND DISTRIBUTING CO. 1125 would do as he was told under the direction of Respon- dent's service manager, Don Sears. The jobs assigned to Salkin by Sears were assisting the warehouseman in moving, crating, and cleaning equipment. Within a short period of time , Sears told Galante that he didn't want to use Salkin any more. Sears reported that Salkin was not doing his work, that when directed to clean a juke box he would "just swish over it," that at lunchtime he would go out on the grass and oversleep , at one time napping on a pool table, that he frequently left the premises without Sears' knowledge or permission , and that he antagonized the mechanics by taking equipment apart, without permis- sion, and making more work for them. Galante's reply was: I have a problem . I am trying to do a favor. We are trying to straighten out Mr . Salkin . Would you please let me handle it and try to do your level best in the back. Galante reported to Esfeld that "it wasn't working out," and Galante would have to let Salkin go. Esfeld "protested and virtually insisted that [Galante ] keep him on," and Galante capitulated. Galante did call Salkin - to his office and tell him his wages were being reduced from $2.00 per hour to $1.65 per hour. Salkin told his grandmother . She told her brother. Esfeld told Galante "that was not right" and Galante raised Salkm's pay to $2.50 per hour. There was no improvement in Salkin's work or conduct and complaints continued to flow from Sears. In February 1972, after Galante's niece, who worked in Respondent's office, complained that she was being bothered by Salkin, Galante called Esfeld, told him that the situation was becoming intolerable and that he did not think Esfeld was being fair in asking him to keep Salkin, and asked Esfeld to find him ajob somewhere else. Esfeld replied that if Galante would start Salkin on an apprenticeship program , which was partly subsidized by Federal funds, and keep him for a few months more, Esfeld would be able to place Salkin with a different employer. Galante agreed. Galante told Salkin that he was sending him to the union office to apply to become an apprentice mechanic and that this would be a marvelous opportunity . Salkin would be able to spend all of his time getting direction from the journeymen mechanics , would be able to get gainful employment, settle down, be a man, and contribute to society. Salkin was "overjoyed" that he was going to the Union and was going to make "union wage" because he had found out what the union wage was. Galante made an appointment for Salkin to see the union business agent, Russell Olson. On Friday, February 25 , 1972, in Olson's office, Salkin filled out an application for membership . On the line for "Occupation" he wrote, "App . Mechanic," and on the line for "Date Employed" he wrote, "July 15, 1971." Olson asked why Salkin had not applied for membership after 30 days. Salkin replied that he had been told to "stay low" and to "hide out" whenever Olson visited Respondent's shop.' Olson described the wages and benefits to which apprentice mechanics were entitled under the union contract . Salkin told Olson what he had been making and asked how much money he would have coming in back wages. Olson did some figuring and told Salkin that Respondent owed him about $2,600 in back wages. Salkin asked when Olson would be seeing Galante , and Olson answered that it would be sometime during the following week. During the following week , Salkin continued to work as a handyman . When he received his paycheck on Friday, March 4, he asked Galante why he was not receiving umon wages. Galante answered that his new wage would start the next week, and Salkin said, "Well, o.k., thank you.", On Tuesday, March 7, Olson called on Galante. Olson told Galante that he would have to pay Salkin contract wages and benefits from July 1971. Galante answered that Salkin was not covered under the wages and conditions of the union contract, that he was trying to help him and doing him a favor by giving him a job, and that he was not going to give him any backpay. Salkin testified that Galante called him to the office as Olson was leaving and: Mr. Galante said, "I hear you are trying to collect back wages." I said, "Yes." He said, "You can't collect back wages because you don't have back wages coming to you. If you would like to work here and continue working here it would be best for you to go back up to the union and tell them that you began work just last month, if you would like to continue working here and if you do not wish so then you won 't be working after today." He proceeded to ask me would I do that. I said, "Well I would need some time to think about this." I asked him if I could take some time to go talk to an advisor of my family. . . . He said , "Sure, you can have time." [Fifteen minutes later] I went into Mr. Galante's office and I said, "I decided I am going to try to collect back wages and the reason is that the umon said I had them coming to me. I feel that I have been worked around quite a bit." He said, "Well, you just can't work here any more then, if you are going to try to collect back wages. I will have my secretary write out your check... . Galante testified that when he discharged Salkin, He came into my office . . . after he had gone up to the union . . . the first part of March sometime . I am not sure exactly when it was. He had been up to the union and filled out the papers. He had found that he interpreted that to mean that he was hired as an apprentice when I first hired him . Therefore he was due this back pay that we are discussing. I told John that he had never been hired as an apprentice , that I had never hired him under the bargaining agreement and that I only hired him out of doing his great-uncle a favor and that he had been hired as a handyman and a general helper around the place . The reason I sent him to the union to join the union was because from that point I hoped to make a man out of him , to get a job as an apprentice. . . . When he told me-when he had this pay coming I couldn't believe it. It was the culmination of all this aggravation that I had which stayed with him from the very first day that'I hired him through Sol. There is , no evidence that the discharge was protested I This is a palpable fabrication 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either by Salkin or by the Union. The Union did prosecute Salkin's backpay claim under the grievance and arbitration section of the contract. On July 5, 1972, an award was handed down by Willard G. Olson, state labor mediator, holding: Mr. John Salkin was not subject to the terms and conditions of the labor agreement until he was hired as an apprentice on February 25, 1972. The employer, Mr. Ray Galante shall pay Mr. Salkin the difference between what he received and the apprentice wage rate of the contract for 'all time worked after February 25, 1972. The employer shall also pay Health and Welfare and all other fringe benefit contributions which are due from February 25, 1972, until Mr. Salkin's termination. On July 6, 1972, Salkin filed the charge giving rise to the instant proceeding. Conclusionary Finding John Salkin was discharged because he falsely represent- ed to Olson that he had been employed by Respondent in a bargaining unit position, i.e., apprentice mechanic, contin- uously since July 15, 1971, and because he refused, when given the opportunity by Galante, to correct this false 2 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 representation by telling Olson the truth. Giving false information to a Union to persuade it to extort money from an employer for work not performed is an activity outside of the protection of the National Labor Relations Act. CONCLUSIONS OF LAW 1. Music-Vend Distributing Company is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not, on this record, engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) or (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER The complaint is dismissed in its entirety. 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