Automotive Employees, Laundry Drivers, Local 88

National Labor Relations Board - Board Decisions

Jan 24, 1974

208 N.L.R.B. 679 (N.L.R.B. 1974)

AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS, LOCAL 88
Automotive Employees , Laundry Drivers & Helpers,
Local No. 89., International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America and West Coast Cycle Supply Co. Case
21-CP-310
January 24, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 18, 1973, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed cross-
exceptions, a supporting brief, and an answering
brief, and the C-iarging Party filed a brief in answer
to the Respondent's exceptions.
Pursuant to tl-e provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
clarified below and to adopt his recommended
Order.
The facts are undisputed and fully set forth in the
attached Decision. Briefly, Respondent, by letter
dated May 22, 1973,1 informed the Employer that,
"It has come to our attention that you are not paying
your employees prevailing wages and working
conditions." In addition, this letter expressed Res-
pondent's intention to picket the Employer's prem-
ises for the purpose of making the Employer pay its
employees the "prevailing wages and working condi-
tions." The Employer's response in its letter of May
29 asserted that it was paying its employees prevail-
ing wages, benefits, and working conditions and
requested that Respondent notify it of "any specific
information to the contrary" possessed by Respon-
dent. Thereafter, on June 18 Respondent directed
another letter to the Employer requesting that within
5 days the Employer furnish it with 15 items of
i Unless otherwise noted, all dates hereinafter refer to 1973.
s The attached Decision madvertently refers to this stipulation as being
that the picketing commenced on June 17 The record herein clearly shows
that the parties stipulated that the picketing started on July 17
3 Except for attacking the finding that its objective was one proscribed
by Sec 8(b)(7), Respondent has not excepted to or directly challenged the
validity of the August 1 election either in this proceeding or, apparently, of
the aforementioned representation case.
i Members Jenkins and Penello deem it unnecessary to pass on General
Counsel's cross-exceptions which concern the Administrative Law Judge's
failure to find that Respondent 's picketing for a proscribed recognitional
object automatically encompassed a proscribed organizational object.
notwithstanding the absence of independent evidence thereof , of "forcing or
679
information relating to the wages, benefits, and
working conditions of its employees, including such
matters as seniority and layoff policies.
The Employer's reply by letter of June 21 refused
to supply the requested information to Respondent,
again challenged Respondent's earlier claim to
having information that the Employer was not
paying prevailing area standards, and asserted that
Respondent was obviously trying to coerce the
Employer into recognizing it. It appears there has
been no other communication between the parties
and none, with the exception of the picketing,
between Respondent and any of the Employer's
employees.
The parties stipulated that Respondent peacefully
picketed the Employer's premises from July 17 2 to
September 6, when the picketing was enjoined by a
Federal district court order. On July 18 the Employer
filed an RM petition, and on August 1 an expedited
election was conducted in which a majority of the
votes was cast by eligible voters against representa-
tion by a labor organization. The election results
were certified by the Regional Director for Region 21
on August 13. Thereafter, the instant charge was
filed on August 21.
Respondent now contends that its picketing was
for a lawful maintenance of area standards purpose
and that General Counsel has not shown this
picketing was for an unlawful object.3 On the record
before us, we are satisfied, for the reasons set forth
hereinafter that Respondent's picketing was not
lawful area standards picketing but rather was at all
times for a proscribed recognitional object.4
The gist of Respondent's principal argument is that
its unfulfilled request that the Employer furnish it
with the details of its labor costs precludes a finding
that it was not engaged in area standards picketing
but was picketing for an unlawful object. We do not
agree. The Board recently stated: 5
Unions exist for organizational and recognitional
purposes, and always have an ultimate goal of
representing all employees functioning in a
particular industry. They do not lightly forego it,
and pursuit of an ostensible area standards object
must not be viewed as an easy way to circumvent
requiring" the employees of the Employer "to accept or select" Respondent
as their collective -bargaining representative . since such an additional
finding would not materially affect the scope of the remedy.
Member Kennedy would find merit in General Counsel's cross -excep-
tions and grant the additional remedy requested by the General Counsel.
See San Francisco Local Joint Executive Board of Culinary Workers,
Bartenders, Hotel, Motel and Club Service Workers. AFL-CIO (APB
Enterprises, Inc, d/b/a Perry's), 207 NLRB No 38: United Brotherhood of
Carpenters and Joiners , Local 906, AFL-CIO (Blankenship Builders, Inc ),
204 NLRB No. 16.
5 Sales Delivery Drivers, Warehousemen and Helpers Local 296 of Santa
Clara and San Benito Counties, California, et al (Alpha Beta Acme Markets,
Inc), 205 NLRB No. 81.
208 NLRB No. 97
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statutory proscriptions against recognitional
picketing. Thus we must always carefully scruti-
nize the circumstances surrounding alleged area
standards picketing to determine if the union in
pursuing this course of action has accepted the
required limitations, and may reasonably be said
to be seeking no more than an equalization of
competitive advantage rather than the attainment
of a bargaining relationship .65
that it was picketing for recognition. This conduct,
together with its demand for irrelevant informa-
tion ,ll compels an inference that maintenance of
area standards was merely a device to evade the
provisions of this Act, and not its true object at all.
For the reasons set forth above, we find that
Respondent's picketing was for a recognitional
object and that by engaging in such conduct within
12 months after a valid election under Section 9(c) of
the Act has been conducted, Respondent violated
Section 8(b)(7)(B) of the Act.
Area standards picketing can only be justified
where, in fact, the picketed employer's mode of
operation can be shown to be substandard in
comparison with the negotiated area standards.
This necessarily means that there must have been
an investigation and an evaluation of comparative
standards carried out with as great a degree of
thoroughness as the circumstances will permit.?
In the instant case, those requirements have clearly
not been met. Respondent initially wrote the Em-
ployer that it had information that the Employer was
not paying its employees "prevailing wages and
working conditions." In reply the Employer asserted
that it was meeting prevailing standards and request-
ed that Respondent furnish it with any contrary
information in Respondent's possession. However,
rather than presenting such information, Respondent
sought to place the entire onus on the Employer by
requesting that the latter furnish it with the 15
detailed items, which included such noncost matters
as its seniority and layoff policies.8 In rejecting this
request, the Employer again asserted that its labor
costs met area standards. Respondent again ignored
this challenge to the contrary information it allegedly
possessed and commenced picketing without any
further evidence or indication that it either possessed
or had evaluated any data relating to the Employer's
asserted substandard labor costs.
The foregoing can hardly be characterized as a
bona fide attempt by Respondent to determine that,
in fact, the Employer's labor costs were substandard,
which is the duty of a union that seeks to engage in
lawful area standards picketing .9 Clearly, if Respon-
dent, under the circumstances herein, had been
seeking such a lawful object, it should have and
would have met the Employer's assertion that it was
paying area standards by presenting to the Employer
the contrary information it allegedly possessed and
proceeded from there to determine whether, in
actuality, the Employer's labor costs were substan-
dard.1° Respondent's failure to do so belies both its
claim of possession of information regarding the
Employer's substandard labor costs and its denial
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 Administrative Law Judge and
hereby orders that Respondent, Automotive Employ-
ees, Laundry Drivers & Helpers, Local No. 88,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Long Beach,
California, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
6 Id, last three sentences of sec Ill. DI, of ALJD.
7 Id., third par. of sec Ill. D3. of AUD
R The seeking of information that is irrelevant to the question of
comparative labor costs is inconsistent with a standards goal and may
suggest that the true object is recognitional . Cf. Retail Clerks International
Association. Local Union No 899, AFL-CIO (State Mart, Inc, d/b/a Giant
Food), 166 NLRB 818, 824
9 Cf Sales Delivery Drivers, Warehousemen and Helpers Local 296 of
Santa Clara and San Benito Counties, California, supra. International Union
of Operating Engineers, Local 4, AFL-CIO (Seaward Construction Company,
Inc), 193 NLRB 632, United Brotherhood of Carpenters and Joiners of
America, Local 745, AFL-CIO (James W Glover, Lid), 178 NLRB 684; San
Francisco Joint Board International Ladies Garment Workers Union,
AFL-CIO (Romay of California). 171 NLRB 761. Local Joint Executive
Board, Bartenders and Culinary Workers of Las Vegas and Vicinity (Hohda),
Inns of America, inc, d/b/a Holiday Inn of Las Vegas), 169 NLRB 683; and
Construction , Shipyard and General Laborers Local 1207, AFL-CIO; and
Building and Construction Trades Council of Tampa, Florida (Alfred S Austin
Construction Company, Inc), 141 NLRB 283.
iii We agree with the Administrative Law Judge that Respondent's bare
assertion that it has information concerning the Employer's substandard
labor costs cannot serve to place the burden on the Employer of furnishing
Respondent with the intimate details of its labor costs . Furthermore,
contrary to Respondent 's assertion that the Administrative Law Judge has
placed the burden on Respondent of proving its picketing was lawful, it is
quite clear that General Counsel presented a prima facie case of
Respondent 's having engaged in conduct proscribed by Sec 8(b)(7)(B) of
the Act and that the burden of going forward had shifted to Respondent.
i i See fn 8, supra
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case
was heard by me on October 2, 1973,' at Los Angeles,
California , with all parties represented . The complaint,
i Hereafter all dates refer to 1973 unless otherwise specified.
AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS , LOCAL 88 681
issued on August 27 pursuant to a charge filed on August
212 by West Coast Cycle Supply Co., herein called the
Company or Charging Party, against Automotive Employ-
ees, Laundry Drivers & Helpers, Local No. 88, Internation-
al Brotherhood of Teamsters , Chauffeurs,. Warehousemen
& Helpers of America , herein called the Respondent
Union or Respondent, alleged that Respondent violated
Section 8(bX7)(B) of the Act in that it demanded that the
Company recognize and bargain with it as the representa-
tive of the Company's production and maintenance
employees and that in furtherance of this objective
Respondent picketed the Company's premises from June
17 until September 6; and the picketing described above
continued after a valid election in an appropriate unit was
conducted on August 1 by the Regional Director for
Region 21 of the National Labor Relations Board, herein
called the Board , which resulted in a certification of results
showing that Respondent had not secured a majority of the
valid ballots cast.
Respondent in its answer while admitting certain
allegations of the complaint denied that it had engaged in
any unfair labor practices.
Upon careful consideration of the briefs filed by each of
the parties and the entire record in the case, I make the
following:
pleadings and the testimony of Howard Cohen, president
of the Company, constitute the entire evidentiary material
before me.
Cohen testified that the Company purchases bicycles
from companies located in various countries in the world;
it carries various brands of bicycles including Washeeze,
Azuki, Windsor, and Mandor; and during the period while
the premises were .,,picketed he observed on numerous
occasions delivery trucks approach the picket line on the
way to the plant , come to a stop at the picket line and, in
excess of 15 occasions, the trucks would then turn around
and drive away.3
The documents entered into evidence by the General
Counsel are summarized below in the time sequence of
their occurrence.
General Counsel's Exhibit 2 is a letter from the
Respondent Union to the Company dated May 22 and
reads as follows:
It has come to our attention that you are not paying
your employees prevailing wages and working condi-
tions.
Accordingly, we intend to picket your premises for the
purpose of requiring you to pay your employees.
prevailing wages and working conditions.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company is a corporation engaged in the wholesale
distribution and sales of bicycles, bicycle parts, and
accessories with its principal plant located at Carson,
California , where it annually receives goods and materials
valued in excess of $50 ,000 from. suppliers located outside
the State of California . The answer, as amended at the
hearing, admits and I find that the Company is an
employer within the meaning of Section 2(6) and (7) of the
Act. I further find that it would effectuate the policies of
the Act to assert jurisdiction herein.
U. THE LABOR ORGANIZATION INVOLVED
The complaint alleged , the answer admitted , and I find
that the Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue in this case is whether the Respondent
Union's picketing had as an object to force or require the
Company to recognize or bargain with the Respondent
Union as the representative of the Company's employees.
B. The Evidence
At the hearing, General Counsel entered into evidence
certain documents. These documents together with the
Z Served on. Respondent on the same day.
7 I make no findings of a violation in this regard as there was no
allegation in the complaint to this effect and I do not regard the matter as
This is not a request for recognition or a contract.
General Counsel 's Exhibit 3 is a letter to the Union
dated May 29 from Donald D. Rea and Company in
behalf of the Company . It notified the Union that it
represented the Company , and the Company was paying
prevailing wages or better. It requested the specific
information the Union had to the contrary and stated that
in the event picketing was undertaken appropriate legal
action would be taken.
General Counsel 's Exhibit 4 is a letter dated June 18
from the Union to the Company with a copy to Rea. This
letter requested information from the Company with
regard to 15 items which , apparently in the Union's
opinion , would enable the Union to determine whether or
not the Company's wage policies met the prevailing
standards.
General Counsel's Exhibit 5 is a letter from Rea to the
Union which denied the Union's request for information.
The letter also asserted that the Union 's statement that it
had information concerning the Company's lower wage
rates was not based on facts.
General Counsel 's Exhibit I shows that on July 25,
pursuant to a petition filed on July 18, by, the Company,4
the Regional Director for Region 21 of the Board notified
the Union and the Company that he would conduct a
secret ballot election among the Company 's employees to
determine whether they wished to be represented by the
Union. The Regional Director found the appropriate unit
to be:
All production and maintenance employees, including
fully litigated.
4 Case 21-RM-1611.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipping and receiving employees, order fillers, ware-
housemen, truckdrivers and leadmen employed by the
Employer at its facility located at 1241 East Watson-
center Road, Carson, California.
Excluded: All office and clerical employees, profes-
sional employees, watchmen, guards and supervisors as
defined in the Act.
On August 1,5 the Regional Director issued a tally of
ballots showing that all 13 eligible employers who cast
ballots voted against representation by the Respondent
Union. On August 13, the Regional Director issued a
certification of the results of election.
At the hearing it was stipulated by the parties that the
picketing was peaceful and was conducted from June 17 to
September 6 with picket signs carrying the following
legend:
West Coast Cycle Not Paying
Prevailing Wages and Benefits
Unfair to. Teamsters Local 88
C. Analysis and Conclusions
From the uncontested facts as recited above it is clear
that a valid election was conducted on August 1 in which
the Union failed to secure a majority of votes in the unit
and therefore was not the certified representative of the
Company's employees. Accordingly it remains to be
determined whether the picketing after August 1 had a
recognitional object or whether, as the Union contends,
the picketing was protected activity designed to protest the
Company's failure to pay the prevailing wages and
benefits.
Recently, the Board overruled me in Blankenship
Builders, Inc.,6 citing previous decisions in which it held
that a union's failure to attempt to determine whether an
employer's wages and benefits met area standards is itself
evidence that the union is not concerned with area
standards and that its true objective is organization or
recognition.7
In the instant case, I find that the Respondent Union
made no genuine attempt to determine whether the
Company's wage scale met area standards. Surely the
request directed by the Respondent Union to the Company
on June 18 asking for complete details of the Company's
wage scale and benefits8 cannot serve or be interpreted as
a bona fide attempt to secure information within the
meaning of the cases cited above. To hold otherwise would,
in effect, place the burden on the Company to supply the
most intimate information concerning the Company's
dealings with its employees in the hands of a union which
may seek to organize or represent such employees. I believe
S It was stipulated that the election was conducted on August 1.
6 United Brotherhood of Carpenters and Joiners, Local 906, AFL-CIO,
(Blankenship Builders, Inc.), 204 NLRB No. 16.
r Citing : Construction, Shipyard and General Laborers Local 1207;
AFL-CIO; and Building and Construction Trades Council of Tampa, Florida
(Alfred S. Austin Construction Company, Inc.), 141 NLRB 283, 284; Local
Joint Executive Board Bartenders and Culinary Workers of Las Vegas and
it was incumbent upon the Union to demonstrate by other
means that it sincerely attempted to secure information
concerning the wage scale of the Company . Moreover, the
Union failed to demonstrate in any manner in what respect
the Company failed to meet the prevailing wage rates and
failed to show what were the prevailing wage rates. In
addition, the self-serving statement that it did not seek to
represent the Company's employees cannot serve to
insulate the Union from a contrary conclusion based upon
all the facts . Finally, the Union demands were so vague
that only bargaining with the Company could specifically
fix the areas where the Company may or may not have
been deficient . In the absence of any specific evidence that
the Respondent Union knew and informed the Company
what were the area standards ; and in the absence of any
evidence that the Union made a bona fide attempt to secure
information as to the Company's wage scale, I am
constrained to find that Respondent Union 's picketing was
designed to secure recognition and bargaining rights in
behalf of the Company 's employees in the appropriate
unit .9 It is manifest that by picketing for this objective after
August 1 , the Union violated 8(b)(7)(B) in that it was
picketing to force or require the Company to recognize or
bargain with the Union notwithstanding the fact that
Respondent Union was not the currently certified repre-
sentative of the Company's employees and a valid election
had been conducted within the preceding 12 months.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. West Coast Cycle Supply Co. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Union, by picketing the premises of the
Company after August 1, 1973 to September 6, 1973
engaged in conduct violative of Section 8(b)(7)(B) of the
Act in that such picketing had as an object to force or
require the Company to recognize or bargain collectively
with the Respondent Union as the representative of the
Company's employees notwithstanding the fact that
Respondent Union was not the certified representative of
such employees and a valid election under Section 9(c) of
the Act had been conducted within the preceding 12
months.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged
Vicinity (Holiday Inns of America, Inc., d/b/a Holiday Inn of Las Vegas), 169
NLRB 683, 684.
8 G.C. Exh. 4.
B Cr. Sales Delivery Drivers, Warehousemen d Helpers Local 296 of San
Benito Counties, California (Alpha Beta Acme Markets Inc.), 205 NLRB No.
81.
AUTOMOTIVE EMPLOYEES , LAUNDRY DRIVERS , LOCAL 88 683
in unfair labor practices within the meaning of Section
8(b)(7)(B) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, I hereby
issue the following recommended:
ORDER 10
102 48 of the Rules and Regulations, he adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
11 In the event that the Bo rd's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading -Posted 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."
The Respondent Union. Automotive Employees, Laun-
dry Drivers & Helpers, Local No. 88, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from picketing or causing to be
picketed West Coast Cycle Supply Co., where an object
thereof is forcing or requiring it to recognize or bargain
with Respondent Union as the representative of its
employees in violation of Section 8(b)(7)(B).
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."" Copies of the
notice on forms provided by the Regional Director for
Region 21, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Furnish to Regional Director for Region 21 copies of
said notice for posting at West Coast Cycle Supply Co.'s
office, the Company willing, in places where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOI picket or cause to be picketed West
Coast Cycle Supply Co., where an object thereof is to
force or require said Company to recognize or bargain
with us as the representative of its employees in
violation of Section 8(b)(7) (B ) of the National Labor
Relations Act.
AUTOMOTIVE EMPLOYEES,
LAUNDRY DRIVERS &
HELPERS, LOCAL No. 88,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 849 South Broadway,
Eastern Columbia Bldg., Los Angeles, California 90014,
Telephone 213-688-5200.