Hubach and Parkinson Motors

National Labor Relations Board - Board Decisions

Mar 17, 1950

88 N.L.R.B. 1202 (N.L.R.B. 1950)

In the Matter of JOHN F. HUBACH AND C. R . PARKINSON D/B/A
HUBACII AND PARKINSON MOTORS; 1 KELLUM MOTORS , INC.; B. E.
WEILER AND Lois WEILER D/B/A WEILER MOTOR Co .; Roy JARMAN
AND EVA JARMAN D/B/A JARMAN 'S ; GORDON MILLER AND DOROTHY
MILLER D/B/A MILLER MOTORS ; STOUT MOTOR Co.; DUNMIRE MOTOR
CO.; JEAN C. WOLFARD, CATLIN WOLFARD, ROBERT C. WOLFARD AND
JAMES WOLFARD, A COPARTNERSHIP D/B/A OREGON CITY MOTOR CO.;
DON L. MCDANIEL, SOLE TRADER D/BJA MCDANIEL MOTORS; ROBERT
HARTKI; AND MARINE HARTKE D/B/A BOB HARTKE PONTIAC, EM-
PLOYERS AND PETITIONERS and INTERNATIONAL ASSOCIATION OF
MACHISTS ( IND.) LODGE 1495,2 UNION
Cases 1Vos. 36-RM-33, 36-RM-34, 36-RM-35, 36-RM-36, 36-RM-37,
36-RM-38, 36-RM-39, ,36-RM-40, 36-RM-41, and 36-RM-I.-
Decided March 17,1950
I
DECISION
AND
ORDER
Upon petitions duly filed, a hearing was held before Robert J.
Wiener, hearing officer. The hearings officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employers are each engaged in commerce within the mean-
ing of the National Labor Relations Act.
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following reasons:
The Union had separate contracts with each of the Employers,
which contracts expired by their terms on June 1, 1948; they were
continued thereafter on a day-to-day basis, while the parties endeav-
ored to negotiate new agreements. The negotiations were unsuccess-
ful, whereupon the Union struck two of the Employers on July 29,
1948; all the Employers replied by terminating their respective day-
to-day contracts. The Union picketed the business sites of the two
I The name of this Employer appears as corrected at the hearing.
2 The lodge number of the Union appears as corrected at the hearing.
88 NLRB No. 232.
1202
HUBACH AND PARKINSON MOTORS, ET AL. 1203
struck Employers; on August 10, 1948, it struck and thereafter pick-
eted all the Employers. The pickets carried banners stating that the
Employers were unfair to the Union.
The instant petitions were filed on July 12, 1949. Meanwhile, nego-
tiations for new contracts continued sporadically until sometime be-
fore November 3, 1949. On November 2, 1949, the pickets were with-
drawn, and on the following day the Union notified the Regional
Director that it no longer claimed to represent, as exclusive bargaining
agent, a majority of the Employers' employees. On November 10,
1949, however, pickets reappeared at all the Employers' business sites.
There is testimony that the pickets were this time sponsored by Oregon
Machinists Council. The banners carried by the pickets bore legends
only to the effect that the Employers employed nonunion employees.
The Council is composed of all Oregon local lodges of the Interna-.
tional Association of Machinists, including Lodges 63, 1005, and 1495.
Members and officials of all three lodges participated in both the orig-
inal picketing activities before November 3, 1949, and also in such
activities after November 10. Since the disclaimer, however, none of
these organizations has made any verbal or written claims to be the
majority representative of the employees of any of the Employers.3
The Employers assert, nevertheless, that the resumption of picketing
on and after November 10, 1949, has demonstrated that the Union's
disclaimer was not made in good faith, and that by virtue of such
continued picketing, the Union has continued to assert its claim to be
the statutory representative of the Employers' employees. They
further assert that because members of Lodges 63 and 1005 participated
in the picketing, and because the pickets are allegedly sponsored by
the Council, Lodges 63 and 1005 and the Council are likewise claiming
to be such statutory representatives. We do not agree.
Before November 3, 1949, the Union claimed to be the majority
representative of the Employers' employees and, as such representa-
tive, had called its members out on strike and picketed the Employers
for the purpose of supporting their bargaining position. During the
strike, however, the Employers continued to operate their businesses,
and by the time the Union filed its disclaimer, substantially all of the
striking employees had been replaced by other employees. By virtue
of its disclaimer, the Union has abandoned its claim to represent the
employees of the Employers, and has relieved the Employers of any
obligation to recognize it as the representative of such employees.4
Nor, even assuming that the picketing after November 10, 1949, was
attributable to the Union, do we regard such picketing as a reassertion
3 At the hearing in this matter , held on December 1 and 5, 1949 , the Union reiterated its
disclaimer.
* Ny-Lint Tool & Manufacturing Co., 77 NLRB 642.
882191-51-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Union of its claim to majority status; rather, we regard it only
as an attempt by the Union, insofar as it was responsible therefor,5
to organize the employees of the Employers and thereby seek to regain
its former status as majority representative.' As the Union has aban-
doned all claims to exclusive recognition as the bargaining representa-
tive of the Employers' employees, and as neither the Union, nor Lodge
63, nor Lodge 1005, nor the Council now claims to represent a majority
of the employees of any of the Employers, we shall dismiss the
petitions.?
We do not, in dismissing the petitions in these cases, act in deroga-
tion of the established principles set forth by our dissenting colleague.
We agree that, to defeat an employer's petition or a petition for decer-
tification, a union's disclaimer of status as exclusive bargaining repre-
sentative must be clear and unequivocal. We also agree that, in
determining whether an expressed disclaimer is sufficient to defeat
a petition, we should consider not only the words but also the other
conduct of the union involved. We have in this case examined the
Union's entire course of conduct and have come to the conclusion
that despite the resumption of picketing, the Union's disclaimer was
clear and unequivocal. In so concluding, we are not unmindful of
the Coca-Cola case relied on by Member Reynolds. The evidence in
that case showed that, despite the disclaimer, the union nevertheless
engaged in picketing in order to cause the employer to bargain with, it.
In the present case, however, the Union made no claim for recognition
or demand for a contract after it had filed its disclaimer with the Re-
gional Director. Accordingly, we hold that the mere resumption of
picketing, under the circumstances present in this case, is insufficient
to cast doubt upon the validity of the Union's expressed disclaimer.
There is nothing inconsistent, in our opinion, between a valid dis-
claimer of majority status and continued organizational activity. Nor
is this a situation where the union will "have its cake and eat it."
In making the disclaimer, the union does not obtain relief from an un-
waxlted election; however, the union thereby also incurs a disability.
For, as the Board majority stated in the Ny-Lint case, by abandoning
its claim the union thereby "has waived any obligation the Employer
may have to recognize it as the bargaining representative...
Where a union abandons its claim and meanwhile engages in organiza-
tional activity, so far as an employer is concerned the situation is the
6 In view of our decision herein , we deem it unnecessary to pass upon the Employers'
contention that the Union continued to be responsible for the picketing after November
1.0, 1949 , or the Union 's contention that the Council is not a labor organization within
the meaning of the Act.
See The Baldwin Company, 81 NLRB 927; Louella Ballerino, 77 NLRB 738. Cf.
Coca-Cola Bottling Co. of Walla Walla, Washington, 80 NLRB 1063.
7 See Dove Down Hosiery Mills, 83 NLRB 1240.
HUBACH AND PARKINSON MOTORS, ET AL. 1205.
same as where a new union merely attempts to organize a plant, but
without making a claim to representation.
In the Ny-Lint case, the Board set forth its reasons for not process-
ing an employer's petition in the face of a valid disclaimer by the
union involved. We believe that the same reasons apply in a case,
as the one before us, where the union has abandoned its claim to
representation, although engaging in a contemporaneous attempt to
organize the employees. In either type of situation, whether we dis-
miss the petitions, or whether we direct an election which the Union
loses, the Employers may nevertheless still be subject to the economic
pressures incidental to an organizational campaign. Such economic
pressures alone do not, however, vest the Board with jurisdiction to
proceed with the present petitions, in the absence of the statutory
requirement of a question of representation.
ORDER
IT IS I-IEREBY ORDERED that the petitions herein be, and they hereby
are, dismissed.
MmIBER STYLES took no part in the consideration of the above De-
cision and Order.
MEMBER REYNOLDS, dissenting :
I do not agree with the decision of my colleagues that the petitions
in these cases should be dismissed. In Ny-Lint Tool & Manufactwr-
ing Co.," the Board decided that where the only union claiming to
represent employees of the petitioning employer withdraws its claim,
the petition should be dismissed because no question of representation
exists at the time of the hearing. I dissented in that case pointing
out that the abuses which Congress sought to correct by enactment of
Section 9 (c) (1) (B) of the amended Act would be largely frus-
trated if a union were given an unlimited veto of an employer's right
to petition the Board by the simple device of withdrawing, at the
hearing, its claim to represent a majority of the employees in the
proposed bargaining unit. In subsequent decisions, the Board has
limited the application and effect of the Ny-Lint case. We have held
that a union's disclaimer of status as exclusive bargaining representa-
tive must be clear and unequivocal if it is to defeat an employer's
petition or a petition for decertification. Thus, the Board has ruled
that neither the failure of a union to appear at the hearing 9 nor a
union's claim to represent only one of five employees in the unit 10 is
8 77 NLRB 642.
6 Felton Oil Company, 78 NLRB 1033; Kraft Foods Company, 83 NLRB 331.
11 Art Neon Company, 84 NLRB 112.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a sufficient disclaimer to extinguish the question of representation
placed in issue by the filing of a petition. And of more direct appli-
cation to the instant case, we decided recently, in Coca-Cola Bottling
Co. of Walla Walla, .Washington," that continued picketing of an
employer's premises casts substantial doubt upon the validity of a
union's disclaimer to represent a majority of the employees in the
proposed unit and, therefore, a question of representation is raised by
the employer's petition. In the Coca-Cola case,,the Board scrutinized
the union's actions and found them to be inconsistent with the union's
averment that it had withdrawn its claim to represent employees of
the employer. That case harmonizes with the general principle that
in construing a party's intent emphasis will be placed on the party's
deeds and actions rather than statements and protestations.
Similarly, the Union's conduct in this case is consistent only with
a construction that it is pressing continuing claims to represent the
petitioning Employers' employees and is inconsistent with the Union's
alleged disclaimer of status as exclusive bargaining representative.12
The Union here represented the employees of each of the Employers
under separate contracts which expired on June 1, 1948. Failing to
negotiate a renewal of the contracts, the Union picketed the Em-
ployers' premises, which picketing still continued at the time of the
hearing.13 In the Coca-Cola case, we found that the continued picket-
ing of an employer's premises under the circumstances there found to
exist was inconsistent with the union's alleged disclaimer of majority
representation. In the light of the facts of this case, I believe that
the same result should be reached here.14 I find on the record in the
instant case that the continued picketing by the Union is occasioned
by its inability to negotiate new contracts and therefore that the Union
has not unequivocally withdrawn its contract demands. I believe that
this is tantamount to a continuance of its claims to be the statutory
33 80 . NLRB 1063.
32 See Standard Brands, Inc., 77 NLRB 992 , where, although the union named in the
decertification petition contended at the hearing that it did not represent any employees
in the unit in which an election was requested, the Board found on the record in the
case, including the fact that the union had not withdrawn the request for renewal
of its contract with the employer, that the union had stated its position in vague and
contradictory terms which did not constitute a sufficient waiver of interest to defeat the
petition.
13 Although the picketing which was carried on after November 10, 1949, was apparently
sponsored by Oregon Dlochinists Council, I would find that the picketing was conducted
for and on behalf of the Union and that the Union was responsible for it. I am persuaded
as to the validity of this conclusion by the fact that the Union is a member of the Council
and that upon the resumption of the picketing the pickets were in the main the same
men who had picketed for the Union before November 3, 1949, when it notified the
Regional Director that it no longer claimed to represent a majority of the Employers'
employees.
14 Although I participated in the decision in the Louella Ballerino case , cited in foot-
note 6, supra, by the majority as authority for its position, if that case were before
me today I would dissent from the opinions expressed therein.
HUBACH AND PARKINSON MOTORS, ET AL. 1207
representative of employees of the Employers and that consequently
questions of representation exist. The Board, in my opinion, there-
fore has jurisdiction to proceed to elections in the proposed units of
employees who, upon this record, constitute appropriate bargaining
units under established principles of the Board.