Automotive Employees, Local 618

National Labor Relations Board - Board Decisions

Oct 13, 1971

193 N.L.R.B. 714 (N.L.R.B. 1971)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automotive, Petroleum and Allied Industries Employ-
ees Union Local No. 618, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (S & R
Auto Parts ) and Congress of Independent Unions.
Case 14-CP-163
recognition on the ground that the Employer had determined that the
employees did not wish the Respondent to act for them The foregoing
establishes , and we find , that despite the wording on the picket signs,
organization and/or recognition was either the object or an object of the
picketing at all times Operative Plasterers ' and Cement Masons'
International Association, Local Union No 44, AFL-CIO (Penny
Construction Company, Inc), 144 NLRB 1298, 1300
October 13, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 25, 1971, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and
"suggestions in support thereof."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and "suggestions
in support thereof," and the entire record in the case,
and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner.
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 Trial Examiner, and hereby orders
that the Respondent, Automotive, Petroleum and
Allied Industries Employees Union Local No. 618,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
recommended Order.
I While we agree with the Trial Examiner's conclusion that the
Respondent picketed for organizational and recognitional purposes in
violation of Sec 8(b)(7)(A) and (B), we do not adopt his rationale for
finding the unlawful objective Rather, we note that the Respondent clearly
and consistently demanded recognition as the exclusive representative of
the employees from May 6 to the end of November 1970, notwithstanding
its disclaimer of such objects in its letter of May 6, 1970 Further, it asked
in November when it was going to get a contract, and picketing began with
the area standards signs virtually immediately after the Employer refused
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: Upon charges filed
on May 24, 1971, amended May 28, 1971 by Congress of
Independent Unions, herein called CIU, against Automo-
tive, Petroleum and Allied Industries Employees Union
Local No. 618, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Respondent, the Regional
Director for Region 14 of the National Labor Relations
Board, herein called the Board, issued a complaint on
behalf of the General Counsel of the Board on June 8, 1971,
alleging violations of Section 8(b)(7)(A) and (B) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151, et seq ), herein called the Act. In its duly filed answer,
Respondent while admitting certain allegations of the
complaint denied the commission of any unfair labor
practice.
Pursuant to notice a trial was held before me on June 28,
1971, in St. Louis, Missouri, where the parties were present,
were represented by counsel, and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to present oral argument, and to file briefs. A
brief was filed by counsel for the General Counsel on July
28, 1971, and Respondent filed "Suggestions of Respon-
dent" at the conclusion of the testimony.
Upon consideration of the entire record, including the
brief and "Suggestions" filed with me, and specifically
upon my observation of each witness appearing before me,'
I find, for the reasons hereinafter set forth, that the General
Counsel has established by a preponderance of the
evidence that Respondent violated Section 8(b)(7)(A) and
(B) of the Act as enumerated in the complaint. Accordingly
Respondent should cease and desist from its unlawful
activities including picketing and take certain affirmative
action as will be set out below in the sections entitled
"Remedy" and "Order."
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER
S & R Auto Parts, herein called S & R, is a Missouri
corporation having places of business in St. Louis County,
Missouri, wherein it is engaged in the sale and distribution
of automobile parts, supplies, and related products. During
the year ending June 1, 1971, S & R, in its business,
purchased goods and materials valued in excess of $50,000
which were transported to its places of business in Missouri
directly from points located outside the State. I find S & R
to be, at all times material herein, an employer engaged in
I Cf Bishop and Malco Inc, 159 NLRB 1159, 1161
193 NLRB No. 112
AUTOMOTIVE
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
I find that Congress of Independent Unions is a labor
organization within the meaning of Section 2(5) of the Act,
having been certified by the Board on May 19, 1971, as the
exclusive collective-bargaining representative in the unit set
out below.
III THE UNFAIR LABOR PRACTICES
A. The Scope and Character of the Picketing
By letter dated May 6, 1970, Respondent threatened to
picket S & R and in December 1970 began picketing it at its
two locations, 8994 Natural Bridge Road and 1324
Pennsylvania Avenue, St. Louis County, Missouri. This
picketing continued until enjoined on June 22, 1971, by the
United States District Court. At no time during this
picketing was Respondent the collective-bargaining repre-
sentative of the employees of S & R.
The parties stipulated that on May 11, 1971, the Board
conducted an election (Case 14-RC-6638) in a unit of all of
S & R's employees excluding office employees, guards, and
supervisors. Respondent knew the election was going to be
held but declined to participate in it. The only union on the
ballot was the CIU which received 12 votes of the 14 cast of
the 17 eligible votes. CIU was then certified by the Board
on May 19, 1971, as the exclusive collective-bargaining
representative of the S & R employees in the aforesaid unit.
Collective-bargaining negotiations between S & R and the
CIU are in process.
Lloyd E. Eaker, attorney for S & R, was authorized by
Russell W. Nixon, president of S & R, to contact
Respondent and act as his representative in the matters
raised by Respondent's letter of May 6, 1970. Pursuant to
this authority, Eaker called William Shackles, assistant
business representative of Respondent, and they arranged
to meet in Eaker's office on May 18. 1970.
At this meeting, Eakers asked about the benefits
Respondent had in its contract for employees. Shackles told
him of the pension plan and health and welfare plan and
went over the May 6, 1970, letter with him. The meeting
ended with Eaker telling Shackles he would talk to his client
and call back.
Shackles telephoned Eaker a few times but was told in
effect there was nothing to report. Around August 1, 1970,
a lunch was arranged and the two met at Carl's for
luncheon August 11, 1970.
At this meeting the benefits to the employees and
obligations of S & R was discussed with Shackles pressing
for an answer stating that he did not want to picket.
On from two to four later occasions Shackles called
Eaker and the last time, in the latter part of November
1970, asked, "When are we going to get a contract?" Eaker
told him there would be an answer in about a week. Eaker
asked what he could tell S & R's employees and Shackles
replied, "You know damn well what you can do!"
EMPLOYEES, LOCAL 618 715
Around the first part of December Eaker called Shackles
telling him that he had learned the employees did not want
Respondent. Shackles replied, "At least you have given me
an answer."
Then the pickets appeared carrying a picket sign with the
following wording:
S & R AUTO PARTS
THIS EMPLOYER
is
UNFAIR
WAGE RATES, CONDITIONS AND BENEFITS FOR
EMPLOYERS DOING SAME OR
SIMILAR WORK BELOW STANDARDS ESTABLISHED IN
CONTRACTS BETWEEN
THIS UNION AND OTHER LIKE EMPLOYERS, THREATEN
JOB SECURITY AND
ECONOMIC STATUS OF UNION MEMBERS.
HELP MAINTAIN DECENT WAGES AND
BENEFITS BY PATRONIZING EMPLOYERS
WHO MAINTAIN UNION STANDARDS.
TEAMSTERS
LOCAL NO. 618
The above is from stipulations of the parties, admissions
by Respondent, and credited testimony by Eaker.
B. The Meeting of Employees
On Sunday, December 13, 1970, employees of S & R who
were not at work met at the home of employee Mike Martin
to settle the picket problem. Martin had invited Shackles to
-attend and when employee Robert A. Miller heard of this
he invited Clark H. Libhart, national executive vice
president of the CIU. Libhart and Shackles came at
different times of the day. Libhart was first and he told the
employees of what his union had done for others. Shackles,
in his turn, explained he was not the bargaining agent, not
trying to organize the employees, but was there only to
explain what his union had done. He explained the benefits
gained by Local 618, the area coverage, size of local, who
called strikes, how many attended union meetings, what
local economics were involved, and whether supervisors
could join Local 618. Miller asked him if he could give
Shackles an answer by January 1, 1971, and asked, if S & R
employees would join Local 618 would Shackles remove the
pickets. Shackles answered that the pickets would be
removed after the standards met their contract. He handed
out two or three contract copies and gave a majority of
those present a copy of Respondent's new automotive
agreement.
C. Comparison
Nixon credibly testified that no one from Respondent
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever asked him about wages. He had never met Shackles
but turned Shackles' May 6, 1970, letter over to Eaker for
handling. After receipt of the letter, however, Nixon got
copies of Local 618 contracts and compared them with his
wages and benefits and found his comparable.
The conclusionary language in the complaint is that by
the picketing described above Respondent sought to force
and require S & R employees to accept Respondent as their
collective-bargaining representative and sought to force or
require S & R to recognize and bargain with Respondent as
collective-bargaining representative of the employees of S
& R. As this was done after May 1971, at a time when CIU
was lawfully being recognized as the exclusive collective-
bargaining representative and no question concerning
representation of such employees could be raised under
Section 9(c) of the Act, and as the picketing activity was
being engaged in within 12 months of a valid election, the
Respondent violated Section 8(b)(7)(A) and (B) of the Act.2
The Respondent denied the conclusionary allegation and
denied the object of the picketing was to force or require S
& R to recognize and bargain with it as representative of S
& R's employees or force or recognize the employees of S &
R to accept or select it as their collective-bargaining
representative. Respondent disclaims the above illegal
object as set forth in its letter to Russ Nixon of S & R on
May 6, 1970. The letter states,
Dear Mr. Nixon.
It has undoubtedly come to your attention that our
Union has for time to time attempted to interest your
employees in membership in our Union. Up to this
time , they have not joined. That, of course, is their right.
However, it is our understanding that their wages and
conditions of employment are below those which we
have established and are attempting to establish in this
area for similar type of work performed by companies
engaged in a business such as yours. For example, our
standard contract for this type of work requires, among
other things, wages to be paid at the rate of time and
one-half for over 8 hours per day, or over 40 hours per
week, employer-paid sick and accident insurance,
hospitalization insurance, life insurance, pensions, a
guarantee of 40 hours per week, $3.14 to $3.50 per hour,
one week of vacation with pay after one year of
employment, two weeks vacation with pay after three
years of employment and three weeks vacation with pay
after fifteen years of employment, 7 paid holidays, and
a five-day work week. If you desire any further
information with respect to such other matters, we shall
be pleased to supply it on request.
As a matter of simple economics, it is clear that we
cannot maintain our present Union standards or
improve them as long as there are employees in our
Industry who are receiving less. Therefore, unless you
are willing to meet the Union standards in the treatment
2 Section 8(b)(7)(A) and (B) makes it an unfair labor practice for a labor
organization to picket or threaten to picket as follows
(7) to picket or cause to be picketed , or threaten to he picketed, any
employer where an object thereof is forcing or requiring an employer
to recognize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees of an employer
to accept or select such labor organization as their collective
bargaining representative , unless such labor organization is currently
of your employees, we shall have no choice but to
publicize the fact that such employees are working for
wages which are less than, and under conditions which
are inferior to, Union wages and conditions, and that
such situation jeopardizes the maintenance of our
standards. This publicity will be in such manner and by
such means as is permitted by law.
However, we desire to make it perfectly clear that in
writing to you we are not suggesting in any way that you
coerce or interfere with your employees in their right to
join a Union or not to join a Union. That choice, either
way, is theirs alone. Nor are we requesting you to
negotiate with us or to enter into a collective bargaining
agreement with us. We are merely advising you of the
situation and what we propose to do in the event it
continues. We are similarly advising your employees by
providing them with copies of this letter. If we do not
hear from you within the next ten (10) days, we shall
assume that you have decided not to meet our Union
standards.
Enclosed you will find a copy of the instructions which
will be issued to any person authorized to picket on
behalf of our Union. If there should be any violations,
please report them to the Union promptly, and remedial
action will be taken immediately.
Very truly yours,
William H. Shackles, Asst.
Business Representative
TEAMSTERS LOCAL NO. 618
INSTRUCTIONS TO PICKETS
You are being employed by Teamsters Local 618 to
perform picket duty at the premises of S & R Auto Parts
Company, 8994 Natural Bridge. You are directed to
strictly comply with the following instructions:
1. Walk the full length of the public street
adjacent to the premises of the Company. Do not
trespass on private property.
2 Display the picket sign so that it can be
clearly observed.
3 Pass out the handbills to persons entering
or leaving the Company's premises. Do not permit
the sidewalk to become littered by discarded
handbills.
4. Do not block exits or entrances. Hold no
conversations with anyone. Refer all questions to
the Union's business agent.
5. Do not record any license numbers or take
any photographs. Do not urge anyone to refrain
from entering the premises
certified as the representative of such employees
(A) where the employer has lawfully recognized in accordance
with this Act any other labor organization and a question
concerning representation may not appropriately be raised
under Section 9(c) of this Act, or
(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted
AUTOMOTIVE EMPLOYEES, LOCAL 618 717
6. The possession or consumption of alcohol-
ic beverages while on duty is prohibited.
Your authority is limited to the above
TEAMSTERS LOCAL 618
D. Concluding Findings
The opening paragraph of Respondent's letter of May 6,
1970, states that ". . . our Union has from time to time
attempted to interest your employees in membership in our
Union. Up to this time, they have not joined." The next to
last paragraph states, "However, we ... are not suggesting
in any way that you coerce or interfere with your employees
in their right to join . Nor are we requesting you to
negotiate with us or to enter into a collective-bargaining
agreement with us. We are merely advising you of the
situation and what we propose to do in the event it continues.
We are similarly advising your employees by providing
them with copies of this letter." Then came the picket line
As the letter suggested Respondent's interest in the
employees and as it is unnecessary to tell the employees what
they were going to do if the union contract terms were not
met, I conclude the Respondent wanted them to know, in
effect, that only by a complete capitulation to the
Respondent's demands would the picket line be removed
A complete capitulation is to have Respondent as the
representative of the employees and to have a collective-
bargaining agreement with S & R. In no other way could
there be certainty that the "union standards" of Respondent
would ever be met by an S & R collective-bargaining
agreement Also when Shackles attended and answered
questions about Respondent at the employees' meeting, he
was attempting to interest them in joining his union. He
knew that unions need membership to exist and that
idealistic conditions in the industry do not pay their way.
Trial Examiner William E. Spencer found that disclaim-
ers of union interest do not prevail against the intent and
effect of the actions themselves Judge Spencer said, "The
label on a bottle and its contents are not always congruous:
poison in a bottle is not rendered harmless merely because
the label declares it harmless."3 Finally, Shackles admitted
in a telephone conversation with Eaker in November 1970
that he was interested in a contract with S & R by asking
the question, "When are we going to get a contract?"
The Board found in Centralia, supra, that despite
disclaimers by the Union there the Union was interested in
a collective-bargaining agreement with Pacific and interest-
ed in representing Pacific's employees because: (1) The
Union made no substantial effort to ascertain Pacific's
actual wage or employment standards before instituting its
picketing (I find the same is true in the instant case), and (2)
despite the disclaimers contained in the covering letter,
enforcement of the agreement itself, the object of the
picketing, would in effect bind Pacific in the matter of
wages and fringe benefits to the terms of a collective
agreement negotiated by the Union and other employers
. not only as of the date the instrument was executed but
in futuro. With such an agreement in effect, very little would
be left in the field of collective bargaining to a representa-
J Centralia Building & Construction Trades Council and Pacific Sign and
Steel Building Company, inc, 155 NLRB 803 (The Board adopted the
tive chosen by Pacific's employees, and therefore the will
and choice of employees when and if exerted with respect
to a bargaining agent would be thwarted and nullified.
Accordingly, the Board found the freedom of employees to
make their own choice in such matters cannot lawfully be
foreclosed in this manner. Nor can disclaimers prevail
against intent and effect of action. The same reasoning
applies to this case.
For these same reasons I am compelled to reject the
position of Respondent's counsel and find, as alleged in the
complaint, that in its picketing of S & R described above,
the Respondent violated Section 8(b)(7)(A) and (B) of the
Act because an object of the picketing was to require the
employer to recognize and bargain with Respondent or
requiring employees to accept Respondent as their
collective-bargaining representive where (a) the employer
was lawfully recognizing the CIU and (b) a valid election
had been held under Section 9(c) of the Act within the
preceding 12 months.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
2. CIU is a labor organization within the meaning of
Section 2(5) of the Act.
3. S & R is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. All employees of S & R, excluding office employees,
guards, and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. A valid election was held on May 11, 1971, within the
appropriate unit.
6. CIU was on May 19, 1971, and at all times thereafter
the certified exclusive collective-bargaining representative
of S & R employees in the appropriate unit, within the
meaning of Section 9(a) of the Act.
7. By picketing after May 19, 1971, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(7)(A) and (B) of the Act.
Decision of Judge Spencer on November 15, 1965 )
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: 4
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
Automotive, Petroleum and Allied Industries Employees
Union Local No. 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from'
(a) Picketing or causing to be picketed, or threaten to
picket or cause to be picketed, S & R Auto Parts where an
object thereof is forcing or requiring S & R Auto Parts to
recognize or bargain with it as the representative of the
employees of S & R Auto Parts, or forcing or requiring the
employees of S & R Auto Parts to accept or select it as their
collective-bargaining representative, unless it is currently
certified or the representative of such employees:
I) where S & R Auto Parts has lawfully recognized
Congress of Independent Unions, or any other labor
organization, and a question concerning representation
may not appropriately be raised under Section 9(c) of the
Act, or
2) where within the preceding 12 months a valid election
under Section 9(c) of the Act has been conducted.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist any labor
organization, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its place of business in St. Louis, Missouri, and
at the places of business of S & R Auto Parts (it being
willing) in St. Louis, Missouri, copies of the attached notice
marked "Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 14, shall,
after being signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith.6
I In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 10248 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
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
WE WILL NOT picket or cause to be picketed S & R
Auto Parts with an object of requiring S & R Auto Parts
to recognize or bargain with us as the representative of
its employees or of forcing their employees to accept or
select us as their collective-bargaining representative
unless we are currently certified as the representative of
such employees:
A) Where S & R Auto Parts has lawfully
recognized Congress of Independent Unions, or
any other labor organization, and no question
concerning representation may be appropriately
raised, or
B) Where within the preceding 12 months a valid
election has been conducted by the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees of S & R Auto Parts
in the exercise of their nght to self-organization, to
form, join, or assist the Congress of Independent
Unions, or any labor organization, to bargain collec-
tively through representatives of their own choosing
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
AUTOMOTIVE, PETROLEUM
AND ALLIED INDUSTRIES
EMPLOYEES UNION LOCAL
No. 618, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA (S &
R AUTO PARTS)
(Labor Organization)
Dated By
(Representative ) (Title
This is an official notice and must not be defaced by
anyone.
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"
b In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director , in writing,
within 10 days from the date of this order, what steps Respondent has
taken to comply herewith.
ALLIED INDUSTRIES EMPLOYEES, LOCAL 618 719
This Notice must remain posted for 60 consecutive days Any questions concerning this Notice or compliance with
from the date of posting and must not be altered, defaced , its provisions, may be directed to the Board's Office, 210
or covered by any other material North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4167.