Carquinez Lodge No. 1492

National Labor Relations Board - Board Decisions

Dec 3, 1962

139 N.L.R.B. 1477 (N.L.R.B. 1962)

CARQUINEZ LODGE NO. 1492, IAM, AFL-CIO 1477
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. Locals 30, 30A, 30B, and 30C, International Union of Operating Engineers,
AFL-CIO, constitute a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not committed unfair labor practices within the meaning of
Section 8 ( a)(1) and (2) of the Act.
[Recommendations omitted from publication.]
Carquinez Lodge No. 1492, International Association of Machin-
ists, AFL-CIO and The Firestone Tire & Rubber Company.
Case No. 20-CP-67. December 3, 1962
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of The Fire-
stone Tire & Rubber Company, herein called Firestone, on March 21,
1962, against the Respondent, Carquinez Lodge No. 1492, Interna-
tional Association of Machinists, AFL-CIO, herein called IAM.
Thereafter on April 30, 1962, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Twentieth
Region, issued a complaint and notice of hearing, alleging that the
Respondent violated Section 8(b) (7) (B) of the Act by picketing the
premises of Firestone for recognitional or organizational purposes
within 12 months after a valid election had been held pursuant to
Section 9(c) of the Act. On May 3, 1962, the Respondent filed an
answer to the complaint admitting certain jurisdictional and factual
allegations of the complaint but denying the commission of unfair
labor practices.
On June 6, 1962, the parties entered into a stipulation by which they
waived a hearing before a Trial Examiner, and the issuance of an
Intermediate Report and Recommended Order by the Trial Examiner,
and agreed to submit the case to the Board for findings of fact, con-
clusions of law, and an order based upon a record consisting of the
charges, the complaint, the answer, and the stipulation, including
testimony and exhibits adduced at injunction proceedings in the
United States District Court, Northern District of California,
Southern Division, held on May 10, 1962.
On July 13, 1962, the Board approved the stipulation and trans-
ferred the case to itself. Thereafter, the General Counsel and the
Respondent filed briefs.
Upon the basis of the stipulation and the entire record in the case,
the Board 1 makes the following :
' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Leedom and Fanning].
139 NLRB No. 130.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Firestone, an Ohio corporation, is engaged in the manufacture,
sale, and distribution, at wholesale and retail, of tires and automotive
products, with its principal office and plant at Akron, Ohio, and ware-
house and retail outlets throughout the various States of the United
States. Firestone has a district office in San Francisco, California,
serving its warehouses and 18 retail outlets owned and operated by it
in northern California, including the Vallejo retail outlet involved
herein. During the past year, at its San Francisco district office,
Firestone both received from and shipped to points outside the State
of California, goods, materials, or products valued in excess of
$50,000, and had a gross revenue from sales in excess of $500,000.
On these facts, we find that Firestone is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Carquinez Lodge No. 1492, International Asso-
ciation of Machinists, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Prepicketing conduct
About April 19, 1960, Merritt J. Merrill, IAM business representa-
tive, spoke for the first time to the Vallejo store manager, Gerald G.
Arnold, concerning representing the automotive shop men who were
to be taken on at Vallejo? Arnold replied he had no authority to
commit the Company and referred Merrill to Firestone's district
office in San Francisco. Merrill transmitted this information to
Walter S. Martin, senior business representative of IAM, who on
June 10, 1960, sent copies of an industry agreement covering shop
employees of other employers in Vallejo to district office manager,
A. E. Lauenstein, in San Francisco, requesting that it be signed. On
August 16, 1960, Martin again wrote to Lauenstein requesting a reply
to his unanswered letter. On August 24, 1960, Lauenstein replied that
because of vacations there was a delay in sending the contract to the
home office for approval.
2A service department consisting of two shop employees was added to the staff at
Vallejo on June 11, 1960, when that store was moved to a new location.
CARQUINEZ LODGE NO. 1492, IAM, AFL-CIO 1479
On November 22, 1960, Merrill wrote Lauenstein that because it
appeared that Firestone had "no intention of discussing or negotiating
a contract," the IAM was withdrawing its request that Firestone
sign the agreement. Merrill also advised Firestone that "it is our
duty to the public to inform them that your store is non-union and
is unfair to organized labor and to other employers who are main-
taining union conditions in their establishments."
Arnold testified without contradiction at the representation hearing
described below, herein called the Rai hearing, that early in 1961,
Merrill asked if "we intended to have our people belong to the union
or sign up with the union." Arnold testified at the court proceeding
that Merrill at that time also asked when the Company "was going
to sign a contract, sign up with the union, or have the employees sign
up with the union."
2. Picketing
On or about November 27, 1961, the IAM commenced picketing 3
in front of the store with a picket sign which read :
Firestone Store
NON-UNION
Advertisement
Automotive Machinists Lodge 1492
On December 1, 1961, Merrill wrote to the secretary of the Central
Labor Council that "it is not the intention" of the IAM to ask the
support of the other unions to respect the picket and that "the intent
is for advertising purpose only to show the public this is a Non-
Union Store."
Merrill testified at the RM hearing that about a week before Christ-
mas 1961, Arnold asked what it would take to have the picket re-
moved and whether it would be possible to pay union rates and go
along without signing the contract. Merrill testified further that he
replied that "we would not remove the picket because we were adver-
tising it was a non-union store," and "if Firestone Store was desirous
of signing a contract with us we would then remove the picket, in-
asmuch as it would be false advertising if we didn't ...."
Merrill later testified at the court proceeding that Arnold asked
whether the picket line would be removed if the employees originally
sought by the IAM joined the Union; that he replied, "Absolutely
not," or "No"; that Arnold then asked what it would take to get the
picket line off, and that he replied, "A signed contract." By way
3 As indicated below, the picketing continued until May 24 , 1962 , when an injunction
was issued by the court.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of explanation , Merrill added that he "couldn 't very well have signed
the contract" because the IAM did not represent the employees. 4
Arnold testified corroboratively at both hearings that he had asked
Merrill whether the picket would be removed if Firestone met the
demands of the union without signing a contract and that Merrill
had replied , "No, he would have to have a signed contract."
3. RM petition and Regional Director 's Decision and
Direction of Election
On January 23, 1962, Firestone filed an RM petition seeking an
election to determine whether its Vallejo shop employees desired to
be represented by the IAM. Two days later, the IAM sent a letter
to the Regional Director denying any interest among the employees
at the Vallejo store. At the hearing on the petition held on February
13, 1962, the JAM again disclaimed any interest in representing the
Vallejo employees. Merrill was asked at the hearing whether the
picketing would be stopped at that time if Firestone signed a con-
tract. Merrill replied that if Firestone desired to sign a contract, "we
didn't want to be taken into Court for false advertising."
The Regional Director on February 21, 1962, issued a Decision and
Direction of Election (not published in NLRB volumes) in which
he found that the conduct and statements of the JAM indicated a
continuation of its demand for a contract. The Regional Director
therefore concluded that the picketing was tantamount to a present
demand for recognition and was inconsistent with the disclaimer. Ac-
cordingly, the Regional Director found there was a question concern-
ing representation of the Vallejo shop employees and denied the IAM's
motion to dismiss the petition.'
On March 6, 1962, an election was conducted and the two employees
in the appropriate unit voted against the Unions Thereafter, the
IAM continued its picketing with the same legend as before. On
March 12, 1962, Merrill wrote Lauenstein that the JAM was not mak-
ing any demands on Firestone but continued picketing out of a "de-
sire only to exercise our right to publicize that you do not have a
contract" with the IAM.
4. Complaint
On April 30, 1962, the General Counsel issued a complaint alleging
that the TAM by its postelection picketing violated Section
8(b) (7) (B) of the Act.
4 Merrill testified that on the same day a Vallejo store employee came to the union hall
to find out what type of contract the IAM had. When the employee stated that the IAM
was trying to organize the store , Merrill replied that the IAM was not trying to organize
the store but was merely trying to advertise that it was a nonunion store.
No request for review of the Decision and Direction of Election was made by the IAM
The results of the election were certified on March 22, 1962
CARQUINEZ LODGE NO. 1492, IAM, AFL-CIO 1481
5. Picketing enjoined
On May 10, 1962, the General Counsel, acting pursuant to Section
10(1) of the Act, petitioned the United States District Court for the
Northern District of California, Southern Division, for an injunction
against the picketing. Merrill testified at the hearing that the pur-
pose of the picketing "was to notify the general public that this was
a non-union establishment . . . that we had to protect the other
employers in the area who were meeting our conditions." The picket-
ing was enjoined on May 24, 1962, and was discontinued pursuant
to court order.
B. Discussion
Section 8 (b) (7) (B) of the Act prohibits recognitional or organiza-
tional picketing within 12 months of a valid election.' The IAM
contends that the postelection picketing was lawful because (1) the RM
election was not valid in view of IAM's disclaimer of interest, and
(2) in any event, the postelection picketing was informational only
and not organizational or recognitional as contended by the General
Counsel.
1. Validity of the RM election
The TAM argues that the Regional Director was in error in finding
the picketing after the IAM's disclaimer was for recognition and a
contract and was therefore inconsistent with the disclaimer. The
General Counsel points out that the IAM failed to request review of
the Regional Director's decision in the representation case. He there-
fore contends that under Section 102.67(f) of the Board's Rules and
Regulations,' the IAM is precluded from relitigating in the unfair
labor practice proceeding herein the question concerning representa-
tion which was raised at the RM hearing. We agree with the General
Counsel that the IAM's failure to request review foreclosed it from
litigating the issue of the question concerning representation in the
instant complaint case. Accordingly, we find that the RM election
was valid within the meaning of Section 8(b) (7) (B) of the Act.
2. Purpose of the picketing
The IAM asserts that the purpose of its postelection picketing was
clearly demonstrated by the entire course of its conduct extending over
the period from November 22, a year before the picketing began,
7 See Houston Building and Construction Trades Council ( Claude Everett Construction
Company), 136 NLRB 321 ; Local 130, Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL-CIO ( Joiner, Inc ), 135 NLRB 876
8 This section provides that: "Failure to request review shall preclude . . , parties from
relitigating , in any related subsequent unfair labor practice proceeding , any issue which
was, or could have been , raised in the representation proceeding "
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to March 12, 1962, 6 days after the election, when the IAM wrote
Firestone concerning the object of its picketing at that time, and that
such a purpose is lawful. We disagree for the following reasons :
Although the IAM on November 22, 1960, withdrew its earlier
request for recognition and informed Firestone that it was merely
going to advertise to the public that the store in question was nonunion
and did not maintain union conditions, the IAM nevertheless asked
Firestone in early 1961 to sign a contract or have the employees sign
up with the IAM. Despite the fact that the IAM on December 1,
1961, informed the Central Labor Council that the purpose of the
picket line established on November 27, 1961, was to show the public
the store was nonunion, the IAM later that same month told Firestone
that the picket line would be removed only if Firestone signed a con-
tract but "absolutely not" if the employees agreed to join the TAM
and Firestone agreed to pay union rates without signing a contract.
The IAM repeated this position at the time of the representation hear-
ing. Finally, as already noted, 6 days after the IAM lost the election,
the IAM, which continued to picket with the same sign, informed
Firestone that it was not making any demands on Firestone and was
picketing to "publicize that you [Firestone] do not have a contract"
with the IAM.
Under the circumstances herein, we reject the IAM's contention
that it was not pursuing its recognitional and bargaining objective
when it continued picketing after the election and despite the fact
that it also stated it was not making any demands on Firestone.'
Accordingly, we find that the postelection picketing was for recogni-
tion and bargaining and was therefore violative of Section
8(b) (7) (B) of theAct.1o
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Firestone, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
P International Ladies ' Garment Workers ' Union, AFL-CIO (Coed Collar Company),
137 NLRB 1698.
10 As the issuance of the certification in the RAI case on March 22, 1962, constitutes the
final determination that "a valid election" has been conducted , we find that the unlawful
postelection picketing commenced on that date See Retail Store Employees' Union Local
No 692, Retail Clerks International Association , AFL-CIO (Irvim,s, Inc ), 134 NLRB 686.
CARQUINEZ LODGE NO. 1492, IAM, AFL-CIO 1483
take certain affirmative action that we find necessary to effectuate the
policies of the Act. The Board has decided that in remedying viola-
tions of Section 8(b) (7) (B ), the remedial order shall require a cessa-
tion of all recognition and/or organizational postelection picketing for
a period of 12 months , to be computed from the date the labor organi-
zation ceases its unlawful picketing, whether voluntarily or involun-
tarily." Since the Respondent picketed unlawfully until enjoined on
May 24,1962 , our cease -and-desist order shall run for a period of 1 year
from May 24 , 1962. We shall also require the Respondent , thereafter,
to refrain from engaging in recognition and/or organizational picket-
ing of Firestone where within the preceding 12 months a valid election
shall have been conducted.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, we adopt the following :
CONCLUSIONS OF LAw
1. The Firestone Tire & Rubber Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By picketing Firestone from March 22 to May 24, 1962, with an
object of forcing and requiring Firestone to recognize and bargain
with the Respondent as a collective-bargaining representative of Fire-
stone's employees and of forcing and requiring Firestone employees to
accept and select the Respondent as their bargaining representative, al-
though the Respondent was not currently certified as such representa-
tive and a valid election had been held within 12 months under Sec-
tion 9 (c) of the Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8(b) (7) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
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, Carquinez Lodge
No. 1492, International Association of Machinists, AFL-CIO, its
officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Picketing, or causing to be picketed, or threatening to picket,
fora period of 1 year from May 24, 1962, The Firestone Tire & Rubber
Company, Vallejo, California, an object thereof being to force or re-
quire The Firestone Tire & Rubber Company to recognize or bargain
n Irving, Inc., supra
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively with the Respondent, Carquinez Lodge No. 1492, Inter-
national Association of Machinists, AFL-CIO, or to force or require
the employees of The Firestone Tire & Rubber Company to accept or
select the Respondent as their collective-bargaining representative.
(b) Picketing. or causing to be picketed, or threatening to picket,
The Firestone Tire & Rubber Company, for any of the above-men-
tioned objects, where within the preceding 12 months a valid election
under Section 9 (c) of the Act has been conducted which the Respond-
ent did not win.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in the Respondent's business offices and meeting halls,
copies of the attached notice marked "Appendix." 12 Copies of said no-
tice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by official representatives of
the Respondent, 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 its members
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Mail to the Regional Director for the Twentieth Region signed
copies of the aforementioned notice for posting by The Firestone
Tire & Rubber Company, if it is willing, in places where notices to
employees are customarily posted. Copies of said notice, to be fur-
nished by the aforesaid Regional Director, shall, after being signed
by the Respondent as indicated, be returned forthwith to the Regional
Director for disposition by him.
(c) Notify the aforesaid Regional Director, in writing, within 10
days from the date of this Decision and Order, of the steps taken to
comply herewith.
"In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be amended by substituting for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of a United States Court of Appeals, En-
forcing an Order"
APPENDIX
NOTICE TO ALL MEMBERS OF CARQUINEZ LODGE No 1492, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO, AND TO ALL EMPLOYEES
OF TIIE FIRESTONE TIRE & RUBBER COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT, for a period of 1 year from May 24, 1962, picket,
or cause to be picketed, or threaten to picket, The Firestone Tire &
DERBY COAL & OIL CO., INC., ETC. 1485
Rubber Company, Vallejo, California, where an object thereof
is to force or require The Firestone Tire & Rubber Company to
recognize or bargain collectively with us, or its employees to
accept or select us as their collective-bargaining representative.
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, The Firestone Tire & Rubber Company, Vallejo, Cali-
fornia, where an object thereof is to force or require The Fire-
stone Tire & Rubber Company to recognize or bargain collectively
with us, or its employees to accept or select us as their collective-
bargaining representative where a valid election which we did not
win has been conducted by the National Labor Relations Board
among the employees of The Firestone Tire & Rubber Company,
within the preceding 12 months.
CARQUINEZ LODGE No. 1492, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Room 703, 830 Market Street, San Francisco 2, California,
Telephone Number, Yukon 6-3500, Extension 3191, if they have any
question concerning this notice or compliance with its provisions.
Derby Coal & Oil Co., Inc., Deco Sheet Metal Works, Inc., and
Plumbing , Inc. and International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local 677.
Case No. 1-CA-3655. December 3, 1962
DECISION AND ORDER
On June 26, 1962, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondent had not engaged in other unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
139 NLRB No. 122.