Airport Motors, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1979

242 N.L.R.B. 41 (N.L.R.B. 1979)

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.
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