Automotive, Petroleum, Etc. Union, Local 618

National Labor Relations Board - Board Decisions

Apr 10, 1962

136 N.L.R.B. 934 (N.L.R.B. 1962)

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automotive, Petroleum & Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America and
Charles Schmitt and Stephen A. Schmitt d/b/a Charlie's Car
Wash and Service. Case No. 14-CP-10. April 10, 1962
DECISION AND ORDER
On March 3, 1961, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in unfair labor practices, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the Intermediate Report attached hereto. Thereafter
the Respondent filed exceptions to the Intermediate Report and a sup-
porting brief. The General Counsel filed exceptions to the recom-
mended order.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case 1 and adopts the findings 2
conclusions, and recommendations of the Trial Examiner to the extent
consistent with the decision herein.
Charlie's Car Wash and Service 3 operates a carwash-polishing
service and a filling station in St. Louis, Missouri. In 1958, about 2
years before the hearing, the Respondent's 4 business representative,
Carl Gibbs, called on Charles Schmitt, a partner in Charlie's and
told him he wanted to organize the polishing department and requested
recognition. Schmitt stated he could not afford the Union because of
competition and he heard no more from the Union until sometime
in August 1959, after Charlie's opened its filling station. At that
time, another union representative, Charles Herman, approached him
and stated that the Union wanted recognition at the service station.
i On November 2, 1960, the parties entered into a stipulation that the transcript of the
district court hearing on October 14, 1960, in Salvatore Cosentino v. Local 618, Auto-
motive, Petroleum d Allied Industries Employees Union, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America, Civil No. 60C308 ( 2), to-
gether with copies of exhibits and formal documents be submitted to the Board ' s Chief
Trial Examiner for referral to a Trial Examiner who would thereafter issue an Inter-
mediate Report on such evidence without further hearing Accordingly , the Intermediate
Report was prepared by the Trial Examiner based on that record
2 The Trial Examiner failed to conclude in his findings of fact that the business of the
Charging Party meets the Board ' s jurisdictional standards . The record shows that
Charlie's Car Wash and Service, a carwash and polishing service , was paid, in the
aggregate , in excess of $50,000 in 1959 for wholesale services by 11 automobile dealers
in Missouri . The parties stipulated that each of said automobile dealers has annual
sales of over $ 500,000 a year and annually receives goods from out of State in excess of
$50,000 . Also, Charlie 's made direct out-of-State purchases that same year amounting
to over $4,000. In view of the foregoing , we find that Charlie's Car Wash and Service
is engaged in commerce within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein. See Siemons Mailing Service, 122
NLRB 81.
2 Hereinafter referred to as Charlie's.
* Hereinafter sometimes referred to as the Union
1316 NLRB No. 87.
AUTOMOTIVE, PETROLEUM, ETC. UNION, LOCAL 618 935
This service station had only one employee who washed and polished
cars part of his time, and who had been a union member while em-
ployed elsewhere. Herman threatened picketing if Charlie's would
not recognize the Union at the filling station. After Schmitt declined
recognition, the union representative attempted to collect delinquent
dues from the employee who operated the filling station, which he
refused to pay. Later, Charlie's received a bill from the Union for
these dues.
On July 5,1960, the Union began to picket Charlie's. The picketing
continued until a temporary injunction was issued in the a)bove-
m entioned district court case on November 2, 1960 [200 F. Supp. 492].
One picket named Leroy Smith walked in front of Charlie's carrying
an umbrella upon which appeared the words "Teamsters Local 618"
and a picket sign bearing the Teamsters' emblem and the wording :
This Employer unfair to Union members employed in this area.
Wage rates and benefits for men doing same or similar work
below standards established in contracts between Union and other
like employers threatens job security and economic status of
Union members. Help maintain decent wages and benefits by
patronizing Union establishments. Teamsters' Local Union
No. 618.
The record shows without contradiction that, during the picketing,
several material suppliers failed to make deliveries, and, in at least
one instance, such failure was the result of the Union's refusal to give
the suppliers permission to cross the picket line. In another instance,
the failure to make a delivery was the direct result of the picket's
admitted practice of taking down truck names and licenses as the
trucks approached the picket line. Thus, Edward Eichhorn, an em-
ployee of Clean Coverall Company, testified that when he arrived at
Charlie's with a regular delivery on July 5, he observed the picket and
asked him for information as to the reason for the picketing. The
picket replied that he was taking down names which he would turn in
down at the union office. Eichhorn further testified that he is a
member of a Teamsters' local and that he did not make deliveries after
speaking with the picket.'
The Trial Examiner, crediting Arnold Peoples, an employee of
Charlie's, found that, in the course of the picketing, the picket solic-
ited Charlie's employees to join the Union. The Union contends that
the Trial Examiner erred in his finding, and that the picket's testi-
mony, in effect denying the solicitation, should have been credited,
rather than that of Peoples.'
6 There is also testimony , denied however by Gibbs, bearing on Gibbs ' efforts to insure
that customers cease doing business with Charlie 's. As we find that this evidence is not
necessary to the determination of this case, it is not considered herein
O 'We, of course, do not rely on the Trial Examiner 's apparently inadvertent reliance on
demeanor evidence in making credibility findings, as he did not observe the witnesses, but
instead made his decision on the basis of a stipulated record
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Peoples, he was asked by picket Smith to sign an
authorization card for the Union; and some 3 weeks after the picket-
ing began Smith asked him to distribute authorization cards to his
fellow employees, to obtain their signatures, and to have them meet
Smith at the union hall. Smith testified that Peoples had initiated
the conversation, asking him questions about the Union, and asking
him whether he would go up to the union hall with the employees if
Peoples could get the biggest majority of them signed up. According
to Smith, he replied that he could not go up to the union hall with
them, but he would meet them at the union hall. Smith conceded that
he related this conversation to Gibbs, and that he did go up to the
union hall to wait for the employees.
We accept Peoples' testimony and find that Smith initiated the
conversation and affirmatively solicited Peoples to join the Union and
to sign up the other employees. Except for the conflict as to who
initiated the exchange, the two versions are in substantial agreement,
and we accept Peoples' testimony because the record reveals that, in
other respects, Smith was not entirely a reliable witness. Thus when
he was asked whether he took. down names and license numbers of
trucks, he admitted that he did. However, he also admitted that 2
days before the hearing he had denied doing so to a representative
of the General Counsel. Moreover, although admitting that he took
down names and license numbers, he gave the incredible explanation
that he did so for no reason and "throwed them away." As nothing in
the record suggests that Peoples was an unreliable witness, and as the
Union's initiative in soliciting Charlie's employees to join the Union
is consistent with the Union's overall pattern of conduct in this case,
we credit Peoples' testimony. Inasmuch as Smith conceded that he
related this conversation to Gibbs who took no action to disavow it,
notwithstanding his denial that he had instructed Smith to solicit
membership, we find that the Union is responsible for Smith's activi-
ties in this regard.
Based on the foregoing findings of fact, we conclude that an ob-
ject of the Union's picketing was to force Charlie's to recognize the
Union and to bargain with the Union as the representative of its
employees, and to force Charlie's employees to accept the Union as
their bargaining agent. While it is true that the Union's overt de-
mands for recognition were made considerably in advance of the
picketing, a factor which, in other circumstances might render them
of little probative value in ascertaining Respondent's objective, we
do not believe Respondent's recognition objective simply disappeared
during the passage of time. Respondent took no action to disavow or
withdraw such demands. On the contrary, its efforts to force sup-
pliers to respect the picket line and its solicitation of Charlie's em-
AUTOMOTIVE, PETROLEUM, ETC. UNION, LOCAL 618 937
ployees to join the Union indicate that the Union's picketing was for
an object other than merely requesting customers to patronize union
employers. That objective was, in our opinion, Charlie's recognition
of the Union as the representative of its employees, and the forcing of
Charlie's employees to accept the Union as their bargaining agent
which, if accomplished, would have ended the picketing, as Gibbs ad-
mitted at the hearing.
As the picketing continued for more than 30 days without a peti-
tion being filed,' we conclude that Respondent's picketing violated
Section 8 (b) (7) (C).8
REMEDY
The General Counsel excepted to the Trial Examiner's recom-
mended order that picketing be prohibited until the Respondent
Union or such other labor organization is certified as being unneces-
sary to remedy the unfair labor practices found to have been com-
mitted. We find merit in the General Counsel's exceptions and we
shall, accordingly, modify the recommendations.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Automotive,
Petroleum & Allied Industries Employees Union, Local 618, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from picketing or causing the premises known
as Charlie's Car Wash and Service, St. Louis, Missouri, to be picketed
with an object of forcing or requiring Charlie's to recognize or bar-
gain with the Respondent Union or forcing or requiring Charlie's
employees to select or accept the Respondent Union as their bargain-
ing agent in violation of Section 8(b) (7) (C) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
As the picketing was intended to, and had the effect of, inducing the stoppages of
deliveries , Chairman McCulloch and Members Fanning and Brown do not determine
whether the picketing would have been protected by the publicity proviso to Section
8(b) (7) (C ) had there been no stoppages . Members Rodgers and Leedom , applying the
principle set forth in their dissenting opinion in Local Joint Executive Bd. of Hotel &
Restaurant Employees, etc (Crown Cafeteria ), 135 NLRB 1183, would find, on the
other hand , that the picketing was not protected by that proviso, even had there been no
stoppages.
8 The Respondent contends that before a violation of Section 8(b)(7) can be found it
must be shown that the Respondent had an object of forcing or requiring organization
or recognition and that because the picketing was peaceful , that requirement is not met.
We disagree. In Stan-Jay Auto Parts and Accessories Corporation , 127 NLRB 958, the
Board stated that Section 8(b) (7) contemplates peaceful picketing
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post in its offices and meeting halls in St. Louis, Missouri, copies
of the notice attached hereto marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent Union or
its representative, be posted by the Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Furnish signed copies of said notice to the Regional Director
for the Fourteenth Region for posting by Charlie's Car Wash and
Service, said employer willing, at locations where notices to employees
are customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Fourteenth Region, shall, after being duly
signed as indicated above, be forthwith returned to said Regional
Director for such posting.
(c) Cause a fully signed copy of the above notice to be printed in
a newspaper of general circulation in St. Louis, Missouri, said news-
paper to be one printed in the English language and not a trade paper,
labor paper, specialized journal, shopping news, one printed prin-
cipally as an advertising medium, or a legal news publication, or one
devoted chiefly to publishing legal notices. The cost of such publica-
tion is to be borne entirely by the Respondent Union.
(d) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL OUR MEMBERS, TO ALL EMPLOYEES OF CHARLES SCHMITT
AND STEPHEN A. SCHMITT D/B/A CHARLIE'S CAR WASH AND SERVICE
AND TO WHOM IT MAY CONCERN
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you :
WE WILL NOT picket or cause Charlie's Car Wash and Service
to be picketed where an object thereof is to force or require
Charlie's Car Wash and Service to recognize or bargain with the
Automotive, Petroleum & Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization, as the representative of Charlie's Car
Wash and Service employees, or to force or require Charlie's Car
AUTOMOTIVE, PETROLEUM, ETC. UNION, LOCAL 618 939
Wash and Service employees to accept or select the Automotive,
Petroleum & Allied Industries Employees Union, Local 618, affil-
iated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor organi-
zation, as their collective bargaining representative in violation
of 8(b) (7) (C) of the Act.
AUTOMOTIVE, PETROLEUM & ALLIED INDUSTRIES
EMPLOYEES UNION LOCAL 618, AFFILIATED
WITH INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis 3, Mis-
souri, Telephone Number Main 1-8100, Extension 2142, if they have
any questions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On September 9, 1960, Stephen A. Schmitt, partner in Charles Schmitt and
Stephen A. Schmitt d/b/a Charlie's Car Wash and Service (Charlie's) filed a charge
the Fourteenth Regional Office (St. Louis, Missouri) of the National Labor Relations
Board (Board) alleging that Automotive, Petroleum & Allied Industries Employees
Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (Teamsters) had engaged in and was
engaging in certain unfair labor practices within the meaning of the National
Labor Relations Act, as amended, 29 U.S.C. 151 et seq. (Act), more particularly
Section 8(b) (7) (C) and Section 2(6) and (7) thereof.'
Acting under Section 10(1) of the Act, the Regional Director for the Fourteenth
Region petitioned the United States District Court for the Eastern District of Mis-
i The pertinent portions of the Act alleged to have been violated read•
8(b) It shall be an unfair labor practice for a labor organization or its agents-
t t 4 i S * i
(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is forcing or requiring an em-
ployer 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 certified as the representative of
such employees:
n s
* *
•
*
s
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing: . . . nothing in this
subparagraph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (including con-
sumers ) that an employer does not employ members of, or have a contract
with, a labor organization, unless an effect of such picketing is to induce
any individual employed by any other person in the course of his employ-
ment, not to pick up, deliver or transport any goods or not to perform any
services
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sours, Eastern Division, for a temporary injunction pending the final disposition by
the Board of the matters involved. A hearing on the petition was had November 14,
1960, before the Honorable Roy W. Harper, U.S. District Judge. Thereafter on
November 2, the parties entered into a stipulation that the transcript of the said
hearing before Judge Harper (Civil No. 60C 308(2)) together with copies of exhibits
and formal documents be submitted to the Chief Trial Examiner of the Board at
Washington, D.C., for referral to a Trial Examiner who should thereafter issue an
Intermediate Report and Recommended Order on such transcript, etc., without
further hearing. This stipulation was received by the office of the Chief Trial
Examiner on January 9, 1961, together with notice that the parties had agreed that
the Chief Trial Examiner fix the time for the submission of briefs to the Trial
Examiner, who should be assigned to issue the Intermediate Report, as January 24,
1961, the reason for the delay being stated as failure to receive the transcript until
December 20, 1960. The Trial Examiner was assigned to the case on January 10,
1961. A brief was received from the General Counsel on January 23, 1961. This
report is issued on the stipulated record only. The Trial Examiner conducted no
hearing, saw no witnesses, took no evidence.
Upon the stipulation of the parties herein above mentioned, the Trial Examiner
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Charles D. Schmitt and Stephen A. Schmitt d/b/a Charlie's Car Wash and Service
(the Charging Party herein) is a partnership operating a car washing and polishing
service and in conjunction therewith a filling station in which the Respondent sells
only gasoline and lubricating oils at retail. In the operation of its car washing and
polishing business, which is a "service" enterprise, the Charging Party (Charlie's)
washes and polishes cars for various franchised automobile dealers, who are admit-
tedly subject to the Act. Services performed by Charlie's for such automobile
dealers which means "to wash, polish and clean up used cars" 2 amounted to
$51,913.86 in fees paid to Charlie's by such dealers for such services during 1959,
admittedly a representative period. During the same period Charlie's purchased
soap and polishes for use in its service car washing and polishing in the amount of
$4,043.49. During the same period Charlie's bought for resale $19,292.38 worth
of gasoline and oil. All purchased products came to Charlie's from outside the State
of Missouri.3
H. THE LABOR ORGANIZATION INVOLVED
Automotive, Petroleum & Allied Industries Employees Union, Local 618, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is ,a labor organization within the meaning of the Act and admits em-
ployees of the Charging Party to membership.
III. THE UNFAIR LABOR PRACTICE
In support of the contention that Teamsters has engaged in conduct violative of
Section 8(b) (7) (C) of the Act, the complaint in substance lists the following alleged
unlawful conduct by the Teamsters: Teamsters not being the certified representative
of Charlie's employees (or representing a majority of them within an appropriate
unit) has since July 5, 1960, demanded that Charlie's recognize and bargain with
Teamsters for such employees, has demanded that Charlie's employees accept the
Teamsters as their representative, has since July 5, 1960, picketed Charlie's (for more
than 30 days), without filing a petition to determine representatives with the
Board, such picketing by Teamsters has induced third parties to cease making de-
liveries and pickups and performing services for Charlie's; an object of Teamsters
picketing is to force or require Charlie's to recognize or bargain with Teamsters as
the representative of Charlie's employees or force or require Charlie's employees to
accept or select Teamsters as their collective-bargaining representative, notwith-
standing that Teamsters is not currently certified as the representative of such
employees.
Charles D. Schmitt, one of the partnership doing business as Charlie's, testified
that Charlie's has operated as a car washing and polishing service for some "five and
one half years" and has also sold gasoline and oil at retail at the same location,
since August 1959; only one employee (who has been designated "manager")
operates the filling station and his services being required only part time because
2 Testimony of Charles D Schmitt.
8 Testimony of Charles D Schmitt.
AUTOMOTIVE, PETROLEUM, ETC. UNION, LOCAL 618 941
of the lack of business , this employee also works at washing and polishing cars;
and all employees of the car washing department have interchangeable jobs.
Schmitt further testified that "around two years " before the hearing held Octo-
ber 14, 1960 , by Judge Harper, Teamsters business representative , Carl Gibbs , called
on him at Charlie 's and told him "he wanted to organize the polish department of the
car wash" ; he "believed" Gibbs asked him to sign a contract ; Gibbs did not at the
time claim to represent "any or a majority" of Charlie's employees; and
He said in order for us to keep doing business with the dealers in that area we
would have to be unionized , the polish department , and in our car wash, all the
men worked together , and I asked them how we could keep just the car wash
and the polish separate . He said, "Well , just unionize the men that are going
to be polishing on the cars ," and I said, "Everybody does."
Teamsters Representative Carl Gibbs admitted calling on Schmitt at Charlie's
"maybe two and half years ago ." Gibbs testified:
Q. (,By Mr . Hoax.) Do you remember the nature of your conversation
or the substance of it? Did you ask for an election or did you ask for a
contract?
A. No, I asked for representation so we could have a contract , if he would
agree to recognize it.
Upon being questioned if he at the time "claimed to repesent a majority of Charlie's
employees ," Gibbs testified:
I don 't remember if I had a majority . I did have several people signed up,
and I asked for him to recognize us so we could have a contract.
Schmitt further testified that he heard no more from Teamsters until some time
in August 1959, after Charlie's began to sell gasoline and oil as a retail filling station
operation in connection with the carwash , at which time he was visited by one
Charles Herman , a representative of Teamsters , who stated that "he wanted our
service station unionized ." Schmitt testified:
Q. (By Mr HORN. ) Would you relate as well as you can remember the
substance of the conversation?
A. Well, he brought a contract to the office and my father and I were in the
office and he wanted us to sign it, and he had talked to the boy that was work-
ing at the service station, he talked to him and he talked to my father and I,
and said that we would have to unionize or there would be a picket out there
According to Schmitt, the Teamsters representative also attempted to collect dues
from the employee who operated the gasoline pump, because he had belonged to
Teamsters while elsewhere employed. The employee refused to pay the delinquent
dues and thereafter-
. . . We got a bill from the Teamsters Office I don 't remember the exact
amount. It was for this person's dues and his welfare for that month , for the
month that he was there.
The record discloses that Teamsters began picketing Charlie's July 5, 1960; the
picketing continued until Judge Harper granted the temporary injunction in Civil
No. 60C308 ( 2) November 2, 1960; and Teamsters has not filed a petition under
Section 9(c) of the Act to determine the desires of Charlie 's employees regarding
representation for the purposes of collective bargaining.
Union Representative Charles Herman was not called. Gibbs testified that after
his request for recognition by Charlie 's, some 2i/2 years before the hearing before
Judge Harper , the Teamsters had not again demanded recognition of Charlie's.
Gibbs further testified that the Teamsters now hold six authorization cards signed
by employees of Charlie's, all dated in "January 1960 " 4 With respect to these six
cards, Gibbs testified that he had no knowledge of how, nor by whom, they were
obtained , since they were not solicited by any Teamsters representative either at
the signing employee's place of employment or home or any place other than
Teamsters office.
Gibbs testified that only one picket, Leroy Smith , was ever at Charlie's and
walked a beat in front of the entrance . The picketing was apparently peaceful.
Picket Leroy Smith , while walking the picket line, carried an umbrella upon
which appeared the words "Teamsters ' Local 618" and/or a picket sign bearing the
Teamsters emblem and the wording:
' The record does not disclose the total number of Charlie ' s employees.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Employer unfair to Union members employed in this area. Wage rates
and benefits for men doing same or similar work below standards established
in contracts between Union and other like employers threatens job security and
economic status of Union members. Help maintain decent wages and benefits
by patronizing Union establishments. Teamsters' Local Union No. 618.
Gibbs, who supervised the picket, admitted, "I go by almost every day." He further
testified that he gave picket Leroy Smith a written instruction sheet which Smith
was required to sign and return weekly; the picket was instructed not to take the
license numbers of cars or trucks entering Charlie's except "if some one came along
and give him an argument or give him some trouble or tried to run over him."
The Teamsters aver in their answer:
For its further answer to the Complaint, Respondent states that it has been
picketing the Car Wash and Polishing business operated by the Schmitts since
on or about July 5, 1960, with signs which truthfully state and which truthfully
advise the public that the wage rates and other benefits which the Schmitts pay
their employees are below the standards which employees receive who do the
same or similar work as employees of employers who have collective bargaining
agreements with Respondent, and that the payment of said substandard wages
and other benefits by the Schmitts threatens the job security and economic
status of Respondent's members; that Respondent has no other purpose or
object in carrying on the picketing just described than to publicize and call to
the attention of the public the message and appeal carried on such signs.
The same argument as set forth in the answer was made by the Teamsters before
Judge Harper.
The Trial Examiner credits the undenied testimony of partner Charles D. Schmitt
that the Teamsters requested Charlie's to sign a collective-bargaining contract with
Teamsters without benefit of prior Board determination of majority status in an
appropriate unit and also billed Charlie's for the dues of one of Charlie's employees,
by reason of his Teamsters membership while not employed by Charlie's, before
Teamsters began picketing Charlie's for the claimed sole purpose of giving public
information.
The Trial Examiner may safely assume that the overdue account of one of Charlie's
employees in no way caused the Teamsters' picketing. As to the matter of the
contract once sought by Teamsters, the Trial Examiner turns again to the testimony
of Teamsters' Business Representative Carl Gibbs for light.
Gibbs testified:
Q. (By Mr. HORN.) Have you called any of the employers, the automobile
agencies doing business with Charlie's Car Wash, and requested that they
cooperate?
A. I have not.
Q. You have not. Have you called Robert Hespen at Clinton Cadillac and
asked him to cooperate?
A. No, sir, I have not.
Robert P. Hespen, above referred to, testified that he is general manager of the
Clinton Cadillac Company; that Clinton Cadillac is under contract with Teamsters;
and that "during the first week" Charlie's was being picketed by Teamsters, Business
Representative Gibbs telephoned him and told him that Teamsters was picketing
Charlie's:
Well, he asked me to recognize the fact, as he did not-that he had pickets
there and he expected me to recognize the picket line in sending my cars in to
Charlie's Car Wash.
Hespen further testified that following the conversation with Gibbs his company
ceased doing business at all with Charlie's 5
Upon the entire record and from his observation of the witnesses, the Trial
Examiner credits Hespen and does not credit Gibbs' testimony that he did not call
Hespen regarding the Teamsters picketing of Charlie's.
Partner Charles D. Schmitt further testified, without contradiction and with
corroboration, that since Teamsters began picketing Charlie's the employees of the
companies who normally delivered soap and chemicals to Charlie's, the employees
i The record shows that during 1959 before the picketing, Charlie's received $7 591 59
In fees for car washing and polishing services rendered Clinton Cadillac Company
AUTOMOTIVE, PETROLEUM, ETC. UNION, LOCAL 618 943
of the company who delivered clean overalls, the company from whom Charlie's ob-
tained gasoline for resale , and the employees of various automobile dealers who
formally delivered cars to be washed have all ceased to make any deliveries whatso-
ever to Charlie's.
Kermet Albus, general manager of Midland Oil Company, testified that Midland is
under a collective-bargaining contract with Teamsters and further that after Team-
sters began picketing Charlie's he called one Joe Baker (stipulated to be one of the
Teamsters business representatives) "to see if our drivers are allowed to cross the
picket line" and was told by Baker, "No, it's our picket there, and I am afraid I
can't give you permission." Albus further testified he thereafter informed Schmitt
that Midland could not deliver gasoline to Charlie's while Teamsters' picket line
was in existence. Albus was not cross-examined, nor was his testimony in any way
denied.
Edward H. Eichhorn, testified that he is employed by Clean Coverall Co., de-
livering clean coveralls and laundry; that prior to Teamsters picketing of Charlie's
he delivered clean coveralls there in the regular course of his employment; that,
on July 5, he came to Charlie's with a regular delivery, observed the picket (whom
he identified as Leroy Smith) and asked him for information regarding the reasons
for the picketing. Eichhorn testified:
Q. (By Mr. HORN.) Would you give again the substance of what the picket
said to you?
A. He said, "We're taking names," or something on that order. He says,
"I turn it in down at the office." And I said, "What are they doing about it?"
He says, "I don't know."
Eichhorn further testified that he is a member of a local union affiliated with the
Teamsters International; that he did not make the delivery to Charlie's after speak-
ing to picket Leroy Smith and has not made any delivery there since; and that he
was advised by the secretary-treasurer of his local union who told him that he (the
secretary-treasurer) would not cross the picket line at Charlie's, but "it's up to you
to use your own prerogative."
Leroy Smith, admittedly the Teamsters picket at Charlie's, did not deny Eichhorn's
testimony that he (Smith) told Eichhorn he was "taking names" which "I turn in
down at the office."
Arnold Peoples employed by Charlie's as the gasoline pump attendant "whenever
it is busy" and as a car polisher when the pump is idle, testified he saw picket Leroy
Smith make notations in "a little, small notebook." According to Peoples whenever
a delivery was made at Charlie's, the picket "whenever they get ready to leave, he
always write down something."
Picket Leroy Smith testified:
Q. (By Mr . HORN. ) Do you take down the names or license numbers?
A. I did.
Q. You did?
A. That's right.
Q. Did you deny it to me as recently as two days ago that you did? [Em-
phasis supplied.]
A. Yes, I did. [Emphasis supplied.]
Q. What did you do with these numbers and things?
A. I throwed them away
Q. You threw them away?
A. I threw them away.
The Trial Examiner believes that the picket 's contention that he took numbers
and names and then "throwed them away" is open to question , as is his further testi-
mony that he did not "turn them [the information he gathered] in" to Gibbs.
Gibbs may not have personally received picket Smith's notes but realistically the
Trial Examiner cannot believe they were made to be "throwed away ," or that Gibbs
was denied the information gathered by the Teamsters' picket.
Arnold Peoples further testified that, after the picketing began at Charlie's, he was
asked by picket Leroy Smith to sign an authorization card for Teamsters; that some
3 weeks after the picketing began picket Smith asked him to distribute authorization
cards to his fellow employees and obtain their signatures , but that he refused to do
so; and that picket Smith asked Charlie 's employees to meet him at the Teamsters
hall, "but we didn't go."
Picket Leroy Smith testified that Peoples began a conversation with him and:
Well, he [Peoples ] asked me about the union and I told him I didn't know any-
thing about it, and he asked me what-you know, he asked me would I get-if
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could get the biggest majority of those fellows to go up there and sign up
would I go up there with him, and I told him, no, I couldn't go up there with
him, said I would wait on him up to the union hall . [Emphasis supplied.]
On cross-examination Smith testified about the incident as follows:
Q. Did you go down there? [The Union hall.]
A. That's right.
Q. Did you tellMr. Gibbs about this?
A. I sure did.
On the entire record, and from his observation of the witnesses, the Trial Examiner
accepts Peoples' version as the more accurate and credits his testimony to the effect
that Smith solicited membership applications from Charlie's employees during the
time he was picketing Charlie's place of business.
Conclusion
The violation of the Act alleged in the complaint deals only with Section
8(b) (7) (C) thereof, the section which proscribes picketing for certain objectives.
Before Section 8(b)(7)(C) comes into play, as stated by Joseph I. Nachman, Esq.,
in a brief colloquy with Harry H. Craig, Esq., attorney for the Teamsters, during the
latter's oral argument at the hearing before Judge Harper, where Mr. Nachman was
one of the General Counsel's representatives, "I concede that before there be a vio-
lation there must Abe a recognition objective or organization objective." Of course the
concession was of an obvious limitation for although under Section 8(b)(7)(C) of
the Act a union is permitted to engage in picketing for recognition (assuming it
represents the employees of the employer being picketed), it must within 30 days file
a 9(c) petition with the Board asking for a determination of representatives.
The Act therefore clearly contemplates that representative status be determined by
Board processes and the fruits of organization be obtained by collective bargaining.
Although as herein set forth a union may not picket at all under Section 7 with the
object of forcing recognition or bargaining, or forcing employees to accept it as
their representative, it may picket an employer at all times and without limitation if
its purpose is to truthfully advise the public (including consumers) that the picketed
employer does not employ union members or have a union contract unless the effect
of this informational picketing induces the employee of a third person, in the course
of his employment, not to pick up, deliver, or transport goods or perform any service.
Teamsters contends that the sole object of their picketing Charlie's was to truth-
fully inform the public of the fact that Charlie's had neither union member employees
or was under a union contract.
Before proceeding the Trial Examiner calls attention to the fact that Teamsters at
the time of the hearing before Judge Harper had picketed Charlie's for more than 3
months (well beyond the 30 days contemplated by the Act) and that during these
3 months the Teamsters did not represent Charlie's employees and filed no 9(c)
petition with the Board.
The record is clear that the Teamsters had demanded recognition and a collective-
bargaining contract from Charlie's before the picket line was established and sought
such recognition without first acquiring majority status among Charlie's employees;
that the "informational" picket was used to solicit membership for the Teamsters
among Charlie's employees; that the "informational" picket engaged in conduct
while picketing which could well have had an intimidating effect on neutrals seeking
to deliver goods to Charlie's; that at least one such delivery driver was told by the
picket he took license numbers on behalf of Teamsters; that a responsible official
of Teamsters informed Charlie's gasoline supplier "I can't give you permission" to
deliver gasoline to Charlie's while the picket line remains ; and that another Teamsters'
official told one of Charlie's customers the Teamsters had picketed Charlie's and
expected this customer's "co-operation."
The record is also clear that an employee of a neutral refused to make any de-
liveries to Charlie's for his employer during the entire period of the picketing.6 The
record also discloses that the supplier, who was not "granted permission" by Team-
sters, as well as the customer, who was asked to "co-operate," ceased doing business
with Charlie's?
'The Trial Examiner does not of course in any manner infer that the sister Teamsters
local to which this individual belonged unduly influenced him
7 This is cited only as indicative of the effect of Teamsters' interpretation of "informa-
tional activity."
AUTOMOTIVE , PETROLEUM , ETC. UNION, LOCAL 618 945
The Trial Examiner is mindful of the uncontroverted testimony of partner Charles
D. Schmitt to the effect that none of the car washing establishments in the neighbor-
hood of Charlie's are union organized. The testimony must be fully credited and
therefore shows that the picket's sign conveyed untruthful information, but this aside,
it also, in the opinion of the Trial Examiner, casts a strong element of doubt on
Teamsters contention that in picketing Charlie's it sought only to create an enlightened
public opinion.
The Trial Examiner believes that if the Teamsters' effort was directed solely to
informational ends and was not a patent attempt to obtain by picketing and coercion
that which should be sought by collective bargaining, it would not have engaged in
any of the above-related conduct referred to, for instead of creating public resent-
ment against Charlie's it could well create resentment against the Teamsters.
The Trial Examiner therefore concludes and finds on the entire record that the
conduct of Teamsters after the picketing of Charlie's began, all as herein detailed,
shows that the real object of Teamsters was to force Charlie's to recognize and
bargain with it and to force Charlie's employees to accept it as their representative
for the purposes of collective bargaining, when in fact it did not so represent
them.
The Trial Examiner finds that the conduct of Teamsters, as herein above set forth,
is conduct violative of Section 8(b) (7) (C) of the Act.
Additional Defense Advance by the Teamsters
On cross-examination Arnold Peoples testified that at the time picket Leroy Smith
asked Charlie's employees "to come down to the union hall to talk about it" ( signing
authorization cards) he (Peoples) told Schmitt of the request and that Schmitt there-
after talked to them all "at the same time." He testified, "He said they wasn't going to
have a union there , and if anybody joined the union, why , they just automatically go."
Peoples' testimony was undenied.
The attorney for Teamsters argued before Judge Harper that the Board, because of
Peoples' testimony that Charlie's had violated the Act, had no standing before the
court. The attorney argued:
Your Honor heard from the stand their own witness, an employee of
Charlie's , who said, and this was never denied , it was never contradicted, that
Charlie called the boys together and told them, ",If you join that union you'll get
fired." Well, that, too, is a violation of 8(b)(7) of the Act, and would ignore
the fact that it is violating another section . I think under the clean hands doc-
trine alone that no such party should be granted equitable relief, .. .
The Trial Examiner finds no merit in this contention . The argument may as well
have been bluntly put that the law will leave two wrongdoers as it finds them.
Arguments are of course often made for sound effect with full understanding that
the one to whom they are addressed knows them to be specious . Such must have been
the case here.
If this argument is advanced before the Board , the Trial Examiner point out that
Teamsters' attorney, being well versed in Board procedure, knows that the General
Counsel may not solicit business and does not represent any cause but the public
interest . However the Teamsters ' attorney may, at the time, have overlooked the
Teamsters ' testimony to the effect that , since January 1960 , Teamsters held six author-
ization cards from Charlie's employees. This being so, it behooved the Teamsters
who were zealously interested in the welfare of Charlie 's employees to file an unfair
labor practice charge , naming Charlie's, as soon as it learned of the violation. In-
asmuch as the Teamsters were represented on the spot by not only a picket, but a
business representative who "passed by almost every day," the Teamsters with six
adherents among those illegally threatened by Charlie's must have known of the
violation long before the hearing in Judge Harper's court. Moreover, had a charge
been filed against Charlie's the General Counsel would still have been duty bound
to proceed with the instant matter.
Concluding Findings
Upon the entire record considered 'as a whole , and his observation of the witnesses,
the Trial Examiner finds that:
(a) Teamsters is not now, nor has it at any time material herein been, the repre-
sentative, certified by the Board, or otherwise, of Charlie's employees.
(b) Since July 5, 1960 , Teamsters has demanded that Charlie's recognize and
bargain with the Teamsters as the representative of Charlie 's employees or has been
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempting to compel Charlie's employees to accept or select Teamsters as their
collective-bargaining representative.
(c) In furtherance of the aforesaid demand for recognition and bargaining or
attempt to compel Charlie's employees to accept or select Teamsters as their collective-
bargaining representative, Teamsters, since on or about July 5, 1960, has picketed
Charlie's.
(d) The aforesaid picketing has been conducted for more than 30 days without
the filing of a petition under Section 9(c) of the Act for a Board election.
(e) The aforesaid picketing has induced individuals employed by neutral suppliers,
service companies, and other persons not to make pickups or deliveries at Charlie's
premises, or perform services at such premises.
The aforesaid conduct is violative of Section 8(b) (7) (C) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts and conduct of Teamsters set forth in section In, above, and operations of
Charlie's described in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to, and do
lead to, labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Teamsters has engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Teamsters has picketed Charlie's in a manner violative of Sec-
tion 8(b) (7) (C) of the Act, the Trial Examiner will recommend that the Teamsters,
its officers, representatives, agents, employees, and all members and persons acting
in concert or participation with Teamsters or them, cease such picketing or causing
such picketing at Charlie's where an object thereof is to force or require Charlie's
to recognize or bargain with the Teamsters as the representative of Charlie's em-
ployees, or force or require Charlie's to accept or select Teamsters as their collective-
bargaining agent, unless and until the Teamsters has been certified as such by the
Board.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Automotive, Petroleum & Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the meaning of the Act.
2. By picketing Charlie's Car Wash and Service for an object or objects pro-
scribed by Section 8(b) (7) (C) of the Act, Teamsters has engaged in unfair labor
practices within the meaning of Section 8(b) (7) (C) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The American Lubricants Company and Sales Drivers, Sales
& Service Local Union No. 176, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 9-CA-2264. April 10, 1962
DECISION AND ORDER
On July 14, 1961, Trial Examiner John H. Dorsey issued his Inter-
mediate Report 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
136 NLRB No. 83.