Automotive Employees, Laundry Drivers, Local 88

AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS, LOCAL 88 Automotive Employees, Laundry Drivers & Helpers, Local No. 89., International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and West Coast Cycle Supply Co. Case 21-CP-310 January 24, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 18, 1973, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed cross- exceptions, a supporting brief, and an answering brief, and the C-iarging Party filed a brief in answer to the Respondent's exceptions. Pursuant to tl-e 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 as clarified below and to adopt his recommended Order. The facts are undisputed and fully set forth in the attached Decision. Briefly, Respondent, by letter dated May 22, 1973,1 informed the Employer that, "It has come to our attention that you are not paying your employees prevailing wages and working conditions." In addition, this letter expressed Res- pondent's intention to picket the Employer's prem- ises for the purpose of making the Employer pay its employees the "prevailing wages and working condi- tions." The Employer's response in its letter of May 29 asserted that it was paying its employees prevail- ing wages, benefits, and working conditions and requested that Respondent notify it of "any specific information to the contrary" possessed by Respon- dent. Thereafter, on June 18 Respondent directed another letter to the Employer requesting that within 5 days the Employer furnish it with 15 items of i Unless otherwise noted, all dates hereinafter refer to 1973. s The attached Decision madvertently refers to this stipulation as being that the picketing commenced on June 17 The record herein clearly shows that the parties stipulated that the picketing started on July 17 3 Except for attacking the finding that its objective was one proscribed by Sec 8(b)(7), Respondent has not excepted to or directly challenged the validity of the August 1 election either in this proceeding or, apparently, of the aforementioned representation case. i Members Jenkins and Penello deem it unnecessary to pass on General Counsel's cross-exceptions which concern the Administrative Law Judge's failure to find that Respondent 's picketing for a proscribed recognitional object automatically encompassed a proscribed organizational object. notwithstanding the absence of independent evidence thereof , of "forcing or 679 information relating to the wages, benefits, and working conditions of its employees, including such matters as seniority and layoff policies. The Employer's reply by letter of June 21 refused to supply the requested information to Respondent, again challenged Respondent's earlier claim to having information that the Employer was not paying prevailing area standards, and asserted that Respondent was obviously trying to coerce the Employer into recognizing it. It appears there has been no other communication between the parties and none, with the exception of the picketing, between Respondent and any of the Employer's employees. The parties stipulated that Respondent peacefully picketed the Employer's premises from July 17 2 to September 6, when the picketing was enjoined by a Federal district court order. On July 18 the Employer filed an RM petition, and on August 1 an expedited election was conducted in which a majority of the votes was cast by eligible voters against representa- tion by a labor organization. The election results were certified by the Regional Director for Region 21 on August 13. Thereafter, the instant charge was filed on August 21. Respondent now contends that its picketing was for a lawful maintenance of area standards purpose and that General Counsel has not shown this picketing was for an unlawful object.3 On the record before us, we are satisfied, for the reasons set forth hereinafter that Respondent's picketing was not lawful area standards picketing but rather was at all times for a proscribed recognitional object.4 The gist of Respondent's principal argument is that its unfulfilled request that the Employer furnish it with the details of its labor costs precludes a finding that it was not engaged in area standards picketing but was picketing for an unlawful object. We do not agree. The Board recently stated: 5 Unions exist for organizational and recognitional purposes, and always have an ultimate goal of representing all employees functioning in a particular industry. They do not lightly forego it, and pursuit of an ostensible area standards object must not be viewed as an easy way to circumvent requiring" the employees of the Employer "to accept or select" Respondent as their collective-bargaining representative . since such an additional finding would not materially affect the scope of the remedy. Member Kennedy would find merit in General Counsel's cross -excep- tions and grant the additional remedy requested by the General Counsel. See San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers. AFL-CIO (APB Enterprises, Inc, d/b/a Perry's), 207 NLRB No 38: United Brotherhood of Carpenters and Joiners, Local 906, AFL-CIO (Blankenship Builders, Inc ), 204 NLRB No. 16. 5 Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California, et al (Alpha Beta Acme Markets, Inc), 205 NLRB No. 81. 208 NLRB No. 97 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statutory proscriptions against recognitional picketing. Thus we must always carefully scruti- nize the circumstances surrounding alleged area standards picketing to determine if the union in pursuing this course of action has accepted the required limitations, and may reasonably be said to be seeking no more than an equalization of competitive advantage rather than the attainment of a bargaining relationship .65 that it was picketing for recognition. This conduct, together with its demand for irrelevant informa- tion,ll compels an inference that maintenance of area standards was merely a device to evade the provisions of this Act, and not its true object at all. For the reasons set forth above, we find that Respondent's picketing was for a recognitional object and that by engaging in such conduct within 12 months after a valid election under Section 9(c) of the Act has been conducted, Respondent violated Section 8(b)(7)(B) of the Act. Area standards picketing can only be justified where, in fact, the picketed employer's mode of operation can be shown to be substandard in comparison with the negotiated area standards. This necessarily means that there must have been an investigation and an evaluation of comparative standards carried out with as great a degree of thoroughness as the circumstances will permit.? In the instant case, those requirements have clearly not been met. Respondent initially wrote the Em- ployer that it had information that the Employer was not paying its employees "prevailing wages and working conditions." In reply the Employer asserted that it was meeting prevailing standards and request- ed that Respondent furnish it with any contrary information in Respondent's possession. However, rather than presenting such information, Respondent sought to place the entire onus on the Employer by requesting that the latter furnish it with the 15 detailed items, which included such noncost matters as its seniority and layoff policies.8 In rejecting this request, the Employer again asserted that its labor costs met area standards. Respondent again ignored this challenge to the contrary information it allegedly possessed and commenced picketing without any further evidence or indication that it either possessed or had evaluated any data relating to the Employer's asserted substandard labor costs. The foregoing can hardly be characterized as a bona fide attempt by Respondent to determine that, in fact, the Employer's labor costs were substandard, which is the duty of a union that seeks to engage in lawful area standards picketing .9 Clearly, if Respon- dent, under the circumstances herein, had been seeking such a lawful object, it should have and would have met the Employer's assertion that it was paying area standards by presenting to the Employer the contrary information it allegedly possessed and proceeded from there to determine whether, in actuality, the Employer's labor costs were substan- dard.1° Respondent's failure to do so belies both its claim of possession of information regarding the Employer's substandard labor costs and its denial 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 Respondent, Automotive Employ- ees, Laundry Drivers & Helpers, Local No. 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Long Beach, California, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. 6 Id, last three sentences of sec Ill. DI, of ALJD. 7 Id., third par. of sec Ill. D3. of AUD R The seeking of information that is irrelevant to the question of comparative labor costs is inconsistent with a standards goal and may suggest that the true object is recognitional. Cf. Retail Clerks International Association. Local Union No 899, AFL-CIO (State Mart, Inc, d/b/a Giant Food), 166 NLRB 818, 824 9 Cf Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa Clara and San Benito Counties, California, supra. International Union of Operating Engineers, Local 4, AFL-CIO (Seaward Construction Company, Inc), 193 NLRB 632, United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO (James W Glover, Lid), 178 NLRB 684; San Francisco Joint Board International Ladies Garment Workers Union, AFL-CIO (Romay of California). 171 NLRB 761. Local Joint Executive Board, Bartenders and Culinary Workers of Las Vegas and Vicinity (Hohda), Inns of America, inc, d/b/a Holiday Inn of Las Vegas), 169 NLRB 683; and Construction, Shipyard and General Laborers Local 1207, AFL-CIO; and Building and Construction Trades Council of Tampa, Florida (Alfred S Austin Construction Company, Inc), 141 NLRB 283. iii We agree with the Administrative Law Judge that Respondent's bare assertion that it has information concerning the Employer's substandard labor costs cannot serve to place the burden on the Employer of furnishing Respondent with the intimate details of its labor costs . Furthermore, contrary to Respondent's assertion that the Administrative Law Judge has placed the burden on Respondent of proving its picketing was lawful, it is quite clear that General Counsel presented a prima facie case of Respondent's having engaged in conduct proscribed by Sec 8(b)(7)(B) of the Act and that the burden of going forward had shifted to Respondent. i i See fn 8, supra DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This case was heard by me on October 2, 1973,' at Los Angeles, California, with all parties represented . The complaint, i Hereafter all dates refer to 1973 unless otherwise specified. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS, LOCAL 88 681 issued on August 27 pursuant to a charge filed on August 212 by West Coast Cycle Supply Co., herein called the Company or Charging Party, against Automotive Employ- ees, Laundry Drivers & Helpers, Local No. 88, Internation- al Brotherhood of Teamsters , Chauffeurs,. Warehousemen & Helpers of America, herein called the Respondent Union or Respondent, alleged that Respondent violated Section 8(bX7)(B) of the Act in that it demanded that the Company recognize and bargain with it as the representa- tive of the Company's production and maintenance employees and that in furtherance of this objective Respondent picketed the Company's premises from June 17 until September 6; and the picketing described above continued after a valid election in an appropriate unit was conducted on August 1 by the Regional Director for Region 21 of the National Labor Relations Board, herein called the Board, which resulted in a certification of results showing that Respondent had not secured a majority of the valid ballots cast. Respondent in its answer while admitting certain allegations of the complaint denied that it had engaged in any unfair labor practices. Upon careful consideration of the briefs filed by each of the parties and the entire record in the case, I make the following: pleadings and the testimony of Howard Cohen, president of the Company, constitute the entire evidentiary material before me. Cohen testified that the Company purchases bicycles from companies located in various countries in the world; it carries various brands of bicycles including Washeeze, Azuki, Windsor, and Mandor; and during the period while the premises were .,,picketed he observed on numerous occasions delivery trucks approach the picket line on the way to the plant, come to a stop at the picket line and, in excess of 15 occasions, the trucks would then turn around and drive away.3 The documents entered into evidence by the General Counsel are summarized below in the time sequence of their occurrence. General Counsel's Exhibit 2 is a letter from the Respondent Union to the Company dated May 22 and reads as follows: It has come to our attention that you are not paying your employees prevailing wages and working condi- tions. Accordingly, we intend to picket your premises for the purpose of requiring you to pay your employees. prevailing wages and working conditions. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY The Company is a corporation engaged in the wholesale distribution and sales of bicycles, bicycle parts, and accessories with its principal plant located at Carson, California, where it annually receives goods and materials valued in excess of $50,000 from. suppliers located outside the State of California. The answer, as amended at the hearing, admits and I find that the Company is an employer within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the policies of the Act to assert jurisdiction herein. U. THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer admitted, and I find that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The sole issue in this case is whether the Respondent Union's picketing had as an object to force or require the Company to recognize or bargain with the Respondent Union as the representative of the Company's employees. B. The Evidence At the hearing, General Counsel entered into evidence certain documents. These documents together with the Z Served on. Respondent on the same day. 7 I make no findings of a violation in this regard as there was no allegation in the complaint to this effect and I do not regard the matter as This is not a request for recognition or a contract. General Counsel's Exhibit 3 is a letter to the Union dated May 29 from Donald D. Rea and Company in behalf of the Company. It notified the Union that it represented the Company, and the Company was paying prevailing wages or better. It requested the specific information the Union had to the contrary and stated that in the event picketing was undertaken appropriate legal action would be taken. General Counsel's Exhibit 4 is a letter dated June 18 from the Union to the Company with a copy to Rea. This letter requested information from the Company with regard to 15 items which, apparently in the Union's opinion, would enable the Union to determine whether or not the Company's wage policies met the prevailing standards. General Counsel's Exhibit 5 is a letter from Rea to the Union which denied the Union's request for information. The letter also asserted that the Union 's statement that it had information concerning the Company's lower wage rates was not based on facts. General Counsel's Exhibit I shows that on July 25, pursuant to a petition filed on July 18, by, the Company,4 the Regional Director for Region 21 of the Board notified the Union and the Company that he would conduct a secret ballot election among the Company 's employees to determine whether they wished to be represented by the Union. The Regional Director found the appropriate unit to be: All production and maintenance employees, including fully litigated. 4 Case 21-RM-1611. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping and receiving employees, order fillers, ware- housemen, truckdrivers and leadmen employed by the Employer at its facility located at 1241 East Watson- center Road, Carson, California. Excluded: All office and clerical employees, profes- sional employees, watchmen, guards and supervisors as defined in the Act. On August 1,5 the Regional Director issued a tally of ballots showing that all 13 eligible employers who cast ballots voted against representation by the Respondent Union. On August 13, the Regional Director issued a certification of the results of election. At the hearing it was stipulated by the parties that the picketing was peaceful and was conducted from June 17 to September 6 with picket signs carrying the following legend: West Coast Cycle Not Paying Prevailing Wages and Benefits Unfair to. Teamsters Local 88 C. Analysis and Conclusions From the uncontested facts as recited above it is clear that a valid election was conducted on August 1 in which the Union failed to secure a majority of votes in the unit and therefore was not the certified representative of the Company's employees. Accordingly it remains to be determined whether the picketing after August 1 had a recognitional object or whether, as the Union contends, the picketing was protected activity designed to protest the Company's failure to pay the prevailing wages and benefits. Recently, the Board overruled me in Blankenship Builders, Inc.,6 citing previous decisions in which it held that a union's failure to attempt to determine whether an employer's wages and benefits met area standards is itself evidence that the union is not concerned with area standards and that its true objective is organization or recognition.7 In the instant case, I find that the Respondent Union made no genuine attempt to determine whether the Company's wage scale met area standards. Surely the request directed by the Respondent Union to the Company on June 18 asking for complete details of the Company's wage scale and benefits8 cannot serve or be interpreted as a bona fide attempt to secure information within the meaning of the cases cited above. To hold otherwise would, in effect, place the burden on the Company to supply the most intimate information concerning the Company's dealings with its employees in the hands of a union which may seek to organize or represent such employees. I believe S It was stipulated that the election was conducted on August 1. 6 United Brotherhood of Carpenters and Joiners, Local 906, AFL-CIO, (Blankenship Builders, Inc.), 204 NLRB No. 16. r Citing: Construction, Shipyard and General Laborers Local 1207; AFL-CIO; and Building and Construction Trades Council of Tampa, Florida (Alfred S. Austin Construction Company, Inc.), 141 NLRB 283, 284; Local Joint Executive Board Bartenders and Culinary Workers of Las Vegas and it was incumbent upon the Union to demonstrate by other means that it sincerely attempted to secure information concerning the wage scale of the Company . Moreover, the Union failed to demonstrate in any manner in what respect the Company failed to meet the prevailing wage rates and failed to show what were the prevailing wage rates. In addition, the self-serving statement that it did not seek to represent the Company's employees cannot serve to insulate the Union from a contrary conclusion based upon all the facts. Finally, the Union demands were so vague that only bargaining with the Company could specifically fix the areas where the Company may or may not have been deficient. In the absence of any specific evidence that the Respondent Union knew and informed the Company what were the area standards; and in the absence of any evidence that the Union made a bonafide attempt to secure information as to the Company's wage scale, I am constrained to find that Respondent Union's picketing was designed to secure recognition and bargaining rights in behalf of the Company's employees in the appropriate unit .9 It is manifest that by picketing for this objective after August 1 , the Union violated 8(b)(7)(B) in that it was picketing to force or require the Company to recognize or bargain with the Union notwithstanding the fact that Respondent Union was not the currently certified repre- sentative of the Company's employees and a valid election had been conducted within the preceding 12 months. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. West Coast Cycle Supply Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union, by picketing the premises of the Company after August 1, 1973 to September 6, 1973 engaged in conduct violative of Section 8(b)(7)(B) of the Act in that such picketing had as an object to force or require the Company to recognize or bargain collectively with the Respondent Union as the representative of the Company's employees notwithstanding the fact that Respondent Union was not the certified representative of such employees and a valid election under Section 9(c) of the Act had been conducted within the preceding 12 months. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union has engaged Vicinity (Holiday Inns of America, Inc., d/b/a Holiday Inn of Las Vegas), 169 NLRB 683, 684. 8 G.C. Exh. 4. B Cr. Sales Delivery Drivers, Warehousemen d Helpers Local 296 of San Benito Counties, California (Alpha Beta Acme Markets Inc.), 205 NLRB No. 81. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS, LOCAL 88 683 in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, I hereby issue the following recommended: ORDER 10 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 11 In the event that the Bo rd'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 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." The Respondent Union. Automotive Employees, Laun- dry Drivers & Helpers, Local No. 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from picketing or causing to be picketed West Coast Cycle Supply Co., where an object thereof is forcing or requiring it to recognize or bargain with Respondent Union as the representative of its employees in violation of Section 8(b)(7)(B). 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."" Copies of the notice on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to Regional Director for Region 21 copies of said notice for posting at West Coast Cycle Supply Co.'s office, the Company willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 10 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 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOI picket or cause to be picketed West Coast Cycle Supply Co., where an object thereof is to force or require said Company to recognize or bargain with us as the representative of its employees in violation of Section 8(b)(7) (B) of the National Labor Relations Act. AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS & HELPERS, LOCAL No. 88, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Eastern Columbia Bldg., Los Angeles, California 90014, Telephone 213-688-5200.