Automobile Mechanics Lodge No. 701

National Labor Relations Board - Board Decisions

May 5, 1960

127 N.L.R.B. 577 (N.L.R.B. 1960)

AUTOMOBILE MECHANICS LODGE NO. 701 577
Automobile Mechanics Lodge No. 701 , International Association
of Machinists , AFL-CIO and Berwyn Motor Sales , Inc. Case
No. 13-CB-778. May 5, 1960
DECISION AND ORDER
On November 12, 1959, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated the Act as alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel and the Respondent filed exceptions and briefs and
the Respondent filed a brief in reply to the General Counsel's
exceptions.1
The sole issue in this case is whether the Respondent violated Sec-
tion 8(b) (1) (A) of the Act by peacefully picketing the Employer's
premises to compel the Employer to recognize it as the exclusive bar-
gaining representative of the Employer's employees at a time when
it did not represent a majority of such employees in an appropriate
unit. The Trial Examiner recommended dismissal of the complaint on
the ground that the Respondent represented a majority of the em-
ployees during the preelection picketing, and that the objective of the
postelection picketing was not recognitional.
On March 28, 1960, the Supreme Court issued its decision in
N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639
et al. (Curtis Brothers, Inc.),' in which the Court held that such peace-
ful picketing by a union, which does not represent a majority of the
employees, to compel immediate recognition as the employees' exclu-
sive bargaining agent is not an unfair labor practice under Section
8(b) (1) (A) of the Act.
Accordingly, as the decision of the Supreme Court in the Curtis
case is controlling as to the allegations herein, we shall, in compliance
therewith, dismiss the complaint without passing on the Trial Ex-
aminer's findings and conclusions.
[The Board dismissed the complaint.]
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
' As stated in the Intermediate Report, the Employer is engaged in the sale and service,
of automobiles in Berwyn , Illinois , and annually receives automobiles and other materials
valued in excess of $100,000 from outside the State of Illinois Its annual gross sales
exceed $500,000. We, therefore, find that the Employer is engaged in commerce and that
it will effectuate the policies of the Act to assert jurisdiction . We further find, on the
basis of the record, that Automobile Mechanics Lodge No 701, International Association
of Machinists , AFL-CIO, is a labor organization within the meaning of the Act.
2 362 U.S. 274.
127 NLRB No. 85.
560940-61-vol. 127-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The primary issue herein is whether picketing by Automobile Mechanics Lodge
No. 701, International Association of Machinists, AFL-CIO, herein referred to as
Local 701, of the premises of Berwyn Motor Sales, Inc., herein called Berwyn, since
October 20, 1958, and particularly after an election conducted by the National Labor
Relations Board, herein referred to as the Board, on April 10, 1959, constitutes a
violation of Section 8(b) (1) (A) of the National Labor Relations Act, as amended,
herein called the Act.
BUSINESS INVOLVED
Berwyn is an Illinois corporation having its offices, salesroom, and garage at
Berwyn, Illinois, where it engages in the sale and servicing of automobiles (Berwyn
is a De Soto dealer). In the course and conduct of its business Berwyn receives from
outside of Illinois, annually, automobiles and other materials valued in excess of
$100,000. Berwyn's gross retail sales exceed $500,000 annually.
THE FACTS 1
During September 1958, Berwyn's service department employees Ray Moore,
Henry Barbo, Wayne R Mayerhofer, and Leonard Hubert (it is not clear from the
record whether Frank Kveton was also present) discussed among themselves whether
to seek representation through Local 701. Following this discussion Hubert con-
tacted Local 701's business representative, William Workman, and scheduled a meet-
ing for noon on Thursday, October 9, 1958. At the meeting on October 9, which
was attended by Barbo, Hubert, Mayerhofer, and Workman, an application for
membership in Local 701 was signed by Mayerhofer and a further meeting was
scheduled for noon the next day. Barbo and Hubert were already members of
Local 701.
About 10 o'clock on October 10, 1958, Berwyn (without prior notice or warning)
terminated the services of Hubert and Mayerhofer. These terminations occurred
on a Friday. The normal workweek at Berwyn is Monday through Saturday noon
and employees usually receive their pay on Tuesdays.
At noon on October 10, Business Representative Workman was informed of the
terminations of Hubert and Mayerhofer and stated he would undertake to get them
reinstated and would seek, on behalf of Local 701, recognition as the bargaining
agent. Thereafter, Workman met with officials of Berwyn on several occasions.
There is a dispute herein as to the number of such meetings, the dates on which they
took place, and the details as to what was said. However, it is clear from the record
that several such meetings took place between the date of the terminations and
October 20, 1958, and that at these meetings Workman sought reinstatement of
Hubert and Mayerhofer and sought recognition as the bargaining agent for all
mechanics and bodymen and their apprentices. Workman was not successful in his
endeavors. Berwyn refused reinstatement,2 and questioned the majority status of
Local 701.
Upon the testimony of Arthur Mravic, president of Berwyn, the General Counsel
contends that Local 701 claimed a six-man unit which included the greaser, Tony
Picek. In the light of the entire record the Trial Examiner is not convinced that
Local 701 sought a unit which included Picek and hereby rejects Arthur Mravic's
testimony to the contrary and the General Counsel's contention based thereon. The
weight of the evidence tends to show that Local 701 claimed the greaser should be
excluded from a unit of mechanics and Berwyn claimed he should be included.
The record reveals that there were between five and seven (both inclusive)
employees in the units discussed and that three of them (Barbo, Hubert, and Mayer-
hofer) were members of Local 701. Local 701 claims there were five employees
in the unit which it sought and 3 that it represented three of these five. The General
'After the close of the hearing In this matter counsel for Local 701 submitted a motion
to correct the transcript. No opposition to said motion has been received and said motion
is hereby granted.
'Local 701 contended that the services of Hubert and Mayerhofer had been terminated
because of their union affiliation and Berwyn contended that Mayerhofer was laid off due
to lack of work and Hubert was discharged for inefficiency.
'Mechanics Hubert, Barbo, and Ray Moore, Bodyman Frank Kveton, and Apprentice
Mechanic Mayerhofer.
AUTOMOBILE MECHANICS LODGE NO. 7 01 579
Counsel does not dispute the contention that Local 701 represented three of these
five. As noted above, the record establishes clearly that Barbo, Hubert, and Mayer-
hofer were members of Local 701 at the time of these meetings. The General
Counsel contends that there were six employees in the unit (which is the unit ulti-
mately approved by this Board) and that Local 701 did not represent more than
three of these six and that therefore Local 701 was not entitled to seek recognition.
The record is adequate to support a contention that Berwyn sought a unit of six or
seven employees and that Local 701 did not represent more than three of these six
or seven. As noted above, the Trial Examiner rejects the contention that Local 701
sought a six-man unit. The General Counsel's argument that Local 701 was not
entitled to seek recognition will be discussed later in this report.
As noted above, Local 701 and Berwyn met several times without reaching agree-
ment about the matters in dispute. Because of the failure to reach agreement, picket-
ing of Berwyn's place of business began on October 20, 1958 4 The evidence adduced
herein establishes clearly that the picketing was for a twofold purpose-to secure
reinstatement of Hubert and Mayerhofer and to obtain recognition. Any contention
to the contrary is hereby rejected. While the evidence is far from clear as to
whether each of these purposes was of equal standing, the Trial Examiner believes
and finds that the evidence adduced does not support the contention of the General
Counsel that the picketing was not for the purpose of securing reinstatement or that
if it was for this purpose this was a minor and insignificant objective.
The picket signs which were displayed at Berwyn's place of business from October
20, 1958, to April 10, 1959, read as follows:
THIS PLACE
ON
STRIKE
AUTO
MECHANICS
LOCAL 701
AFL-CIO
In November 1958 Berwyn filed a petition for an election and on April 10, 1959,
an election pursuant to a Decision and Direction of Election of this Board was con-
ducted (see Case No. 13-RM-427, unpublished). In its Decision and Direction of
Election (dated March 27, 1959) the Board rejected Local 701's contention that the
greaser, Tony Picek, should be excluded from the mechanics unit because the Board
found that he "spends at least half of his time in mechanical duties." However, the
record herein indicates that between October 10, 1958, and the date of the hearing
in Case No. 13-RM-427 (December 15, 1958), the greaser took on additional duties
of a mechanical nature-took over some of M^ayerhofer's duties-and that conse-
quently the facts which the Board had before it when issuing its Decision and Direc-
tion of Election differed from the facts as they existed at the time of the discussion
noted earlier in this report.
Hubert, Mayerhofer, and Barbo did not cast ballots in the election and the tally
of ballots reveals there were four ballots cast and each of them was against Local
701. On April 21, 1959, a certificate of results of election issued certifying "that
a majority of the valid ballots has not been cast for any labor organization appearing
on the ballot. .
Immediately after the close of the election (on April 10, 1959) Local 701 changed
the picket signs to read:
BERWYN
MOTOR SALES
EMPLOYS
NONUNION
MECHANICS
HELPERS
APPRENTICES
AUTOMOBILE MECHANICS
LOCAL 701
A.F. of L. C.I.O
At the time that Local 701 changed the picket signs Business Representative Work-
man told the pickets "we would change the wording on the signs. We would be
* Hubert and Mayerhofer began picketing Berwyn's place of business and were joined
shortly thereafter by Barbo These three have picketed continuously since October 20, 1958
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
using different signs. We would not be classed as being on strike any longer. We
would be merely advertising the fact that Berwyn Motor Sales was nonunion; that
they were employing nonunion help. We were doing it with the purpose of inform-
ing the public that they were nonunion, in the hope that they would go elsewhere
for their service work and do business elsewhere."
Concurrently with the change in the picket signs, Don Burroughs (or Burrows),
Senior, an official of Local 701 (Business Representative Workman's "boss") tele-
phoned Larry Monahan, president of Local 731, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, and a trustee of the
Joint Council of Teamsters,5 and told him about the results of the election and the
change in the picket signs and asked him (Monahan) to inform the Joint Council
of Teamsters that Local 701 was not striking but "were merely advertising the fact
that [Berwyn] employed nonunion help and so forth, because [Local 701] wanted
to uphold the working conditions and standards of people in other shops" and asked
him to inform the Joint Council of Teamsters that Local 701 did not want any de-
liveries or pickups stopped or any interference with anyone carrying on normal busi-
ness with Berwyn. Monahan passed this information to Ray Schoessling, president
of the Joint Council of Teamsters, who in turn had a secretary in his (Schoessling's)
office telephone this information to Teamsters locals having direct contact with
Berwyn.
During the early part of the week beginning April 13, 1959, Business Representa-
tive Workman informed Mr. Fulton, an official of the DeSoto Dealers Association
(of which Berwyn is a member),6 of the results of the election and the change in
the picket signs and that Local 701 "no longer sought recognition" as the bargaining
agent for employees of Berwyn.
On April 23, 1959, Berwyn filed the charge involved herein and on the same date
the Board's Regional Director forwarded a copy thereof to Local 701 and re-
quested a written account of the facts and a statement of position. Local 701 re-
sponded by letter dated May 28, 1959. Local 701 sent a copy of this letter to Ber-
wyn. The letter reads as follows:
In respect to the charge filed by the employer in the above-entitled case, this
is to inform you that our purpose in picketing the Company premises is to in-
form the public that the employees of the employer are nonunion mechanics,
helpers and apprentices.
Automobile Mechanics Lodge No 701 has numerous agreements with the
competitors of this Employer, therefore it is necessary for us to take the action
complained of by the Employer if we are going to protect the wages and
working conditions which have been negotiated in the locality.
We are not attempting to organize the employees of this Employer nor do
we seek recognition by the Employer.
We have notified other Unions that the purpose of the picketing is to pub-
licize that which is stated on the signs carried by our pickets and that said
pickets are not for the purpose of keeping people from crossing the picket line.
On the basis of decisions of the National Labor Relations Board (Radio
Broadcast Technicians, Local Union No. 1264, et al. (WKRG-TV, Inc.), 123
NLRB 507), may we urge that this charge be dismissed.
Immediately after the election and the change of picket signs Local 701 instructed
its pickets not to discuss the picketing or answer any questions concerning this
matter and to refer inquirers to Local 701 business representatives. In June or July
1959 picket Henry Barbo reported to Business Representative Workman that em-
ployee Ray Moore had conferred with him (Barbo) and had indicated that three of
Berwyn's employees were interested in joining Local 701. Workman told Barbo that
Local 701 would not attempt to represent employees of Berwyn and would not ac-
cept applications for membership from Berwyn's employees until 1 year after the
election-not before April 1960-and that he (Barbo) should relay this information
to Moore and other inquirers and tell them that if they wanted more information
they should contact him (Workman). Barbo did as instructed by Workman
5During October 1958 when Local 701 was seeking reinstatement and recognition, Local
731 of the Teamsters at the same meetings sought recognition as the bargaining agent for
"all parts men and porters . . ." and consequently was well aware of the prevailing
situation.
8 Fulton had attended some of the October meetings between Local 701 and Berwyn and
was aware of the situation.
AUTOMOBILE MECHANICS LODGE NO. 7 01 581
General Counsel's witness, Ray Moore, testified, on direct examination that he
met picket Barbo one day-"I can't say whether it was before the last election, or
after the last election. I don't know the exact date"-and asked him (Barbo) "how
long was he going to walk out there, kidding him" and Barbo answered, "All you
got to do is sign your name and we will have the union in, and that's it. We'll quit
walking." Moore testified further that later that day Barbo called him and said, "If
I [Moore] was interested in joining the Union, I could find a union representative
down at a certain restaurant.. . .. During cross-examination Moore fixed the date
of this conversation at last summer-about June or July 1959. Later during cross-
examination Moore tried to evade answering when this conversation occurred. Still
later he testified it could have occurred in March 1959. Under questioning by the
Trial Examiner, Moore testified he did not know the month in which this conversa-
tion took place and that he could not state for sure whether it was before or after
the election but that he thought it was after the election He also testified it did
not occur as long ago as March 1959. Moore testified further (in response to
questions by the Trial Examiner) that about the same time as the conversation
noted above Barbo also told him (Moore) it did not make any difference whether
he (Moore) joined Local 701 as he (Barbo) was drawing a substantial sum of money
per week "anyhow, the same as if he was working."
Local 701's witness, Henry Barbo, denied specifically and generally that he had
the conversation alluded to by Moore. Barbo testified that in May 1959 Moore
indicated to him that Berwyn's mechanics were interested in joining Local 701 and
that he told Moore (then, and after conferring with Business Representative Work-
man) that he (Moore) should see Workman about such matters.
On the basis of observations of witnesses and analysis of the record herein,
especially in the light of Moore's equivocal testimony and uncertain memory, the
Trial Examiner believes and finds Barbo a more reliable witness than Moore.
There has been no affirmative effort by Local 701 to obtain recognition from
Berwyn since November 1958.
Conclusions
There is no doubt herein that initially one of the purposes of the picketing which
followed the October 1958 meeting was to obtain recognition. The General Counsel
contends that at this time the Union was seeking recognition in a six- rather than a
five-man unit and that, accordingly, the picketing was by a minority union for the
purpose of obtaining recognition and, therefore, unlawful under the doctrine an-
nounced in Curtis Brothers, Inc., and Alloy Manufacturing Company? The Trial
Examiner has already rejected the major premise upon which the General Counsel
relies, namely, that Local 701 sought recognition in a six-man unit . While this
Board ultimately found the six-man unit (rather than the five-man unit) an appro-
priate one for collective-bargaining purposes and Local 701 did not represent a
majority of the employees in this unit, only by giving retroactive effect to the Board's
finding can it be said that the picketing was by a minority union Absent such retro-
active effect it was picketing by a union which represented a majority in the unit
sought and the unit sought was not clearly an inappropriate unit. Coupling these
facts with the fact that there was an additional major objective of the picketing,
which was a legitimate and well-recognized reason for picketing, the Trial Examiner
rejects any argument that the picketing was from its inception unlawful because it
was by a minority union for recognition.
The only remaining issue herein is whether the motive of Local 701 in picketing
after the election (after April 10, 1959) was to bring pressure upon Berwyn and its
employees and thus force recognition. If so, under Curtis Brothers, Inc, and sub-
sequent cases following the Curtis doctrine a violation of Section 8(b)(1)(A) of
the Act has been established; otherwise, it has not been proved.
One of the normal, foreseeable results of picketing is to induce a willingness or
readiness on the part of an employer to grant recognition. However, such normal,
foreseeable consequence is a rebuttable presumption. See Radio Broadcast Tech-
nicians, Local Union No. 1264, et at. (WKRG-TV, Inc.), 123 NLRB 507. In the
present case, the Trial Examiner is of the opinion that the presumption has been
rebutted. In the light of the findings of fact made in this report the only evidence
supporting the General's Counsel's contention that the object of the picketing after
7 Drivers, Chauffeurs, and Helpers Local 659, et at (Curtis Brothers, Inc ), 119 NLRB
232, and International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manu-
facturing Company, et at ), 119 NLRB 307.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 10, 1959, was recognition is the fact that Local 701 continued to picket after
the election8 The Trial Examiner believes this insufficient to sustain the General
Counsel's burden of proving that the purpose of the picketing was to secure recogni-
tion . Furthermore, as noted above , the affirmative evidence adduced herein tends to
establish that this was not the object of the picketing after April 10, 1959, and that
Local 701's actions after the election were not designed to coerce employees to choose
Local 701 as their bargaining agent.
In view of the foregoing , it is believed that the complaint , in its entirety , should be
dismissed.
[Recommendations omitted from publication.]
8 Absent the testimony of Moore (which the Trial Examiner has rejected ) there is no
affirmative evidence that Local 701's object in the postelection picketing was to secure
recognition.
Sears, Roebuck and Company and Local 688, Warehouse & Dis-
tribution Workers, affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of Amer-
ica. Cases Nos. 14-CA-2045 and 14-RC-3463. May 5, 1960
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On October 23, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding , finding that
Sears, Roebuck and Company, the Respondent in Case No . 14-CA-
20451 had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further recommended
that a challenge to the ballot of Jewel Lamb, which was cast in a
Board-directed election , be overruled and that her vote be opened
and counted .' Thereafter , the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief , and the entire record in
the case, and finds merit in Respondent 's exceptions . Accordingly,
we adopt the findings, conclusions , and recommendations of the Trial
1 On January 9, 1959, a Board -directed election in Case No. 14-RC-3463 was held, in
which the employees at Sears' pool stock warehouse in St. Louis , Missouri , voted on
whether they would be represented by Local 688. In this election 24 votes were cast for
Local 688 and 23 against Local 688, with 2 ballots challenged. One challenge was over-
ruled by the Board, and that ballot was ordered opened and counted. The Board further
directed that a hearing be held on the second challenged ballot in the event the counting
of the first should not be dispositive of the election. Upon opening and counting said
ballot, it was determined that 24 votes had been cast for the Petitioner and 24 against
the Petitioner. Accordingly, a hearing on the second challenged ballot was scheduled by
an order dated June 11, 1959. Said order also consolidated the representation case with
Case No. 14-CA-2045.
127 NLRB No. 84.