Airport Motors, Inc.

AIRPORT MOTORS, INC. Airport Motors, Inc. and District Lodge 15, Local 447, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 29-CA-5676 February 8. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.IO On February 8, 1979, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in support of the Admin- istrative Law Judge's Decision. 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 Or- der of the Administrative Law Judge and hereby or ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STArEMENI OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed on May 27, 1977. by District Lodge 15, Local 477, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called Charging Party or Union. A complaint thereon was issued by the General Counsel of the National Labor Relations Board on December 30, 1977. alleging that Airport Motors. Inc.. herein called Employer or Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union on a successor contract and by withdrawing and withholding recognition of the Union as the collective-bar- gaining representative of its employees. An answer thereto was timely filed by Respondent, and a hearing was held before the Administrative Law Judge on May 24, 1978. Briefs have been timely filed b General Counsel and Re- spondent which have been dulb considered. FINDINGS OF FACT I. EMPLOYER'S BUSINESS Employer is a New York corporation maintaining its principal office and place of business in the borough of Queens, city and State of New York. where it is engaged in the retail sale and service of new and used automobiles. automobile parts, and related products. During the past year Respondent, in the course and conduct of its opera- tions, derived gross revenues therefrom in excess of $500,000. During the same period Respondent in the course and conduct of its business purchased and caused to be transported and delivered to its showroom and service shop, automobiles, automobile parts, petroleum products, and other goods and materials valued in excess of $50.000 were delivered to its said showroom and service shop in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, the answer admits, and I find that the Employer is engaged in commerce within of Section 2(6) and (7) of the Act. It. LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that District Lodge 15, Local 447, International Association of Machinists and Aerospace Workers. AFL-CIO. is a labor organization within the meaning of Section 2(5) of the Act. III. AL.EGEI) tNFAIR LABOR PRACI(cES A. Facts The contractual relationship between Respondent and the Union began in the 1950's and successive contracts were entered into thereafter for some 15 vears with the most recent running from Ma) 23, 1974, to May 23, 1977. That contract reads. in part. as follows: ARTICLE I This Agreement covers all Mechanics and Mechanics Helpers who are employed by the Company, and are members of Automobile Lodge No. 447, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 15, New York, New York. All employees covered by this Agreement shall be members in good standing of Automobile Lodge =447, District No. 15 of the International Association of Machinists & Aerospace Workers, AFL-CIO. The Company when in need of employees coming under the classifications covered by this Agreement shall no- tify the office of the Union and the Union will render all possible assistance to furnish competent help. The Company may obtain its own help provided, however, that such help must join the Union within thirty (30) days after employment by the Company. Any employees who fail to maintain membership in good standing in the Union because of non-payment of 242 NLRB No. 13 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) initiation fees or dues shall be summarily discharged by the Company upon receipt of notice from the U nion .' It is undisputed that only two of the Respondent's 8 to 12 employees have ever joined the Union. These were Joseph DiBarbari and Pericles Savas. Contributions under the con- tract to the District 15 Welfare Fund were made only on behalf of DiBarbari and Savas. DiBarbari died in 1975. and thereafter payments were made only for Savas, who also maintained his union membership. At present only Savas is a member of the Union; only Savas is paid the contract wage rate: and only Savas is paid for unused sick leave under the terms of the contract. Most of the other contract provisions are not deserved or applied to any employees. The F.M.C.S. statutory termination notice also reflects the coverage of the two most recent contracts as being lim- ited to only two employees (Resp. Exh. 2 and 4). The 1974-77 contract was negotiated by Union Repre- sentative Lawrence Stepp, who was replaced by Business Representative C. Joseph Lubas in 1977 who was respon- sible for negotiating the next contract. Lubas approached Respondent to negotiate a new contract, taking the position that the 1974-77 contract was actually a union shop con- tract covering all unit employees. Respondent took the po- sition that the contract was a members-only contract cover- ing only members of the Union and therefore refused to negotiate any contract covering all of its employees.3 There- after Lubas contacted Daniel Koeppel, Respondent's vice president, directly to request contract negotiations for all the employees, but Koeppel likewise declined. B. Discussion and Analysis It is the position of the General Counsel that the 1974-77 contract is, in substance, a "union shop" contract covering all the unit employees, and that accordingly Respondent I It does not appear that any attempt was made by the Union to cause the discharge of any employee under article I of the contract. 2 It appears that union authorization cards were signed by four other em- ployees. one in 1974 and three in 1976, but none ever became union mem- hers. 3 At a contract discussion between Lubas and Respondent's attorneys Cooper and Englander, Lubas submitted a contract proposal unacceptable to Respondent, which would modify article I of the contract to provide the following: Article I. Recognition 1.I The Company recognizes the Union, its designated agents and representatives, its successors and/or assigns, as the sole and exclusive bargaining agent on behalf of all of the employees of the Company within the bargaining unit as hereinafter defined, with respect to wages, hours and all other terms or conditions of employment. 1.2 The term "employee" as used in this agreement shall mean and include all classes of mechanics and helpers. Article 2. Union Shop 2.1 It shall be a condition of continuous employment that all employ- ees of the employer covered by this Agreement who are members of the Union in good standing on the effective date of this Agreement, shall remain members in good standing and those who are not members on the effective date of the Agreement shall, not later than the thirty-first (31st) day following the beginning of such employment, become and remain members in good standing in the Union. 2.2 The Company will within three (3) working days after receipt of notice from the Union, discharge any employee who is not in good standing in the Union as required by the preceding paragraph. violated Section 8(a)(5) by refusing to bargain with the Union as the collective-bargaining representative of em- ployees. Respondent, on the other hand, contends that the con- tract is a "members only" contract limited in its coverage to those employees who joined the Union and that. as such, Respondent has no statutory bargaining obligation under Section 8(a)(5) of the Act. The basic issue is whether the contract herein is a "union shop" contract with coverage extending to all unit employ- ees or a "members only" contract limited in its coverage to those employees who joined the Union. This issue is basic because if it is a "members only" contract, the position of Respondent is correct in that there exists no statutory bar- gaining obligation. In support of its position, the General Counsel urges that all three paragraphs of article I should be read together, and that so viewed it becomes apparent that article I in- cludes essentially a union-security provision. I do not agree. The first paragraph of article I, standing alone, clearly lim- its the coverage of the agreement to union members. The next two paragraphs introduced an element of confusion by providing for notice to the Union when employees are needed and obligating such employees to obtain union membership within 30 days. Also provided is summary dis- charge for such employees failing to maintain membership in the Union because of nonpayment of initiation fees or dues. In these circumstances ambiguities are raised and it is necessary to look, not only to the express language of the contract, but to the practice under the contract and prior contracts to determine the meaning of the ambiguous provi- sions. In doing so, we discover that only two employees have ever joined the Union and that presently only one, Savas, is a union member. Welfare payments are made by Respondent to the Union only for Savas; only Savas is paid the contract wage rate: and only Savas is paid for unused sick days. Most of the other contract provisions are not observed at all. It also appears that this limited application of the contract has been the case, not only with the most recent contract, but since the beginning of the contractual relationship between the Union and Respondent some 15 years ago and has been adhered to consistently. That the Union recognized the problem is apparent from its attempt to negotiate a union-shop provision in its most recent con- tract proposals, as noted above. In these circumstances, the General Counsel's reliance on the Hess case' to support its position is misplaced. The Hess case deals with a contract containing an unambiguous union-security provision. It goes on to conclude that despite the fact that the contract was not enforced for a period of about a year, it retained its "vitality and vigor." In the instant case, having found that the contract is, in essence, a members-only contract, rather than a union-security con- tract, the Hess case is obviously inapposite. The General Counsel also argues that the mere failure of employees to join the Union does not privilege Respondent to withdraw recognition and that the Union enjoys a pre- sumption of majority status. Such presumption has not been rebutted, the General Counsel argues, simply because 'ILuigi Ferraioli, d/b/a a Hers Service Staion., 165 NLRB 423 (1967). 42 AIRPORT MOTORS. INC. only one man joined the Union. However. this argument assumes that the Union had at some time previously gained majority status. The record does not support this, particu- larly where the record shows that only two men in a unit of some 8 to 12 employees ever joined the Union under these members-only contracts. There is no presumption to rebut since none ever arose. In short, the 1974 77 contract, prior contracts, and the practice and conduct of the parties throughout some 15 years since the original contract make it clear that it was the intention of the parties that the Union represent only those employees who were also union members. The law is clear that such a contract will not support a refusal-to-bargain allegation under Section 8(a)(5) of the Act. Don Menden- hall, Inc.. 194 NLRB 1109 (1972). Accordingly, the com- plaint herein must be dismissed. CoNCI.uSIONs ()OF LAV The Respondent has not engaged in any conduct viola- tive of the Act. Upon the foregoing findings of hact and conclusions of law I hereby issue the following recommended: ORDEIRi The complaint is dismissed in its entiret). In the event no exceptions are filed as provided hb 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 or all purposes. 43