International Brotherhood of Service Station Operators of America

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 811 (N.L.R.B. 1974)

SERVICE STATION OPERATORS 811
International Brotherhood of Service Station Opera-
tors of America aka International Brotherhood of
Professional Services andJack Eugene Andrews and
Douglas P. Hayes and Urich Oil Company , Party to
the Contracts . Cases 20-CB-28 10 and 20-CB-2811
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
PENELLO
On June 11, 1974, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief and the Respondent an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges that Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by performing, main-
taining, and giving force and effect to its collective-
bargaining agreements with Urich Oil Company at a
time when Respondent was not a bona fide collective-
bargaining representative. The Administrative Law
Judge dismissed the complaint chiefly because he found
that the maintenance of the contract has not affected
the employees' Section 7 rights as the employees have
other remedies; e.g., a representation petition by a rival
union, a decertification petition, or an 8(b)(1)(A)
charge that Respondent violated its duty of fair repre-
sentation. Based on his findings that this is not a case
where Respondent did not represent a majority of the
employees, there is no evidence that Respondent is oth-
erwise an unlawfully assisted union, the agreement is
not substandard, and the Union has not contracted
away any employee rights by virtue of the other options
mentioned above, he concluded that the mere mainte-
nance of an agreement does not constitute conduct
within the ambit of either Section 8(b)(1)(A) or (2). We
disagree.
The material facts are essentially undisputed. Urich
Oil Company, a California corporation with offices in
Whittier, California, is engaged in the retail sale of
gasoline and petroleum products at automobile service
stations. It buys products from such companies as Phil-
lips, Mobil, Texaco, and Sun Land, warehouses them,
and resells them to its subsidiaries, who in turn sell
gasoline in about 75 retail outlets. The subsidiaries,
Urich Oil Company of Nevada, Urich Oil Company of
Oregon, and East-Side Oil Company, then market the
products at retail service stations. Three other such
subsidiaries, namely, Urich Oil Company of California,
Urich Independent Stations, and Independent Service
Station Operators, were merged into the East Side Oil
Company on December 31, 1973. The parent and the
subsidiaries have common offices and officers and iden-
tical labor relations policies.
On November 22, 1971, East Side Oil Company,
Independent Service Station Operators, and Respond-
ent executed a settlement agreement in Cases
20-CA-6533 and 20-CB-2398, under which they
agreed to rescind their outstanding collective-bargain-
ing agreements and to refund dues and initiation fees
collected thereunder. Less than 1 month later on
December 17, 1971, these same two companies, as well
as the four other subsidiaries of Urich Oil Company,
executed new collective-bargaining agreements with
Respondent having a term through December 31, 1974.
These agreements were signed on behalf of Respondent
by Charles Morley and became effective on the date
signed.
On June 7, 1972, the Board, after extensive hearings,
issued its decision in three consolidated cases cited as
Douglas Oil Company, 197 NLRB 308 (1972), dismiss-
ing petitions filed by Respondent for service station
employees of two oil companies, Douglas and Powe-
rine, and revoking its certification as to a third, Power-
ful Gas. Charles Morley was the principal witness for
Respondent at these hearings. In its opinion, the Board
found substance in the contention that Respondent was
created, designed, and put into operation by Morley for
his own personal gain and interest and that it was
nothing more than whatever Morley wanted it to be at
any given time. Citing McDonald's of Canoga Park
Calif, Inc., 162 NLRB 367 (1966), for the proposition
that in collective bargaining a union must conduct itself
with the single-minded purpose of protecting and ad-
vancing the interest of the employees who have selected
it and must not have an ulterior purpose, and noting
that Respondent had been given the chance at two full
hearings to dispel doubt about its status, the Board
concluded that Respondent was "in reality something
other than a collective-bargaining representative." Par-
ticular note was made of the fact that Morley or others
would change the Respondent's internal structure
whenever it pleased them; Respondent's president,
while acting as an employer, had entered into a collec-
tive-bargaining agreement with Respondent; Respond-
ent had no affiliated local unions and could not sub-
stantiate its claim that it had designated certain
individuals to represent the membership on a local ba-
215 NLRB No. 154
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sis; and Respondent had tried to extend its coverage to
unrepresented service stations without giving em-
ployees a right to an election.
Following the Board 's finding in Douglas, Respond-
ent continued to maintain its relationship with Urich
Oil Company and continued to seek to gain recognition
as the representative of employees of other employers.
It was also put through what Respondent termed a
"reorganization ," changing its name and bylaws and
allegedly chartering local lodges and severing its rela-
tionship with Charles Morley . Despite the reorganiza-
tion , however , Respondent remained essentially the
same one-man operation.
Morley remained the only real official of the Union,
as he has been throughout its existence . While he has
variously been called secretary -treasurer , coordinator
of legal affairs , and president , and for some period
following Douglas carried no official title , he never sev-
ered his relationship with Respondent. Thus,
post-Douglas, he continued to represent Respondent in
its dealings with Urich Oil Company . He received all
mail for Respondent, represented it in legal proceed-
ings, and controlled disbursement of its funds. As Rick
Storey , Respondent 's vice president , testified , Morley
was in charge of the "whole works."
As was true at the time of Douglas, it cannot now be
established that Respondent has any internal structure
other than Morley . The letterhead being used by Re-
spondent as of October 1973 lists an executive board of
six persons . The first of these is Brad Reiley , president.
Reiley testified that he was not aware that his name was
being used on the letterhead , and that he had not had
anything to do with Respondent for over 6 months
leading up to the hearing . He was unable to recall
whether or not Morley had advised him that Morley
himself had assumed the position of president effective
on April 8, 1974. Rick Storey is listed on the letterhead
as vice president . He testified that he had not had any-
thing to do with Respondent for 6 to 8 months leading
up to the hearing and indicated that he never got too
far into the union setup . He said that he had at one time
been a union trustee , but performed no duties in such
position . He further stated that he never attended any
union conventions or membership meetings. By the
final day of hearing, Storey had left the country and
could not be located by Respondent.
Gino Vannucci is also listed as vice president on the
letterhead . Morley indicated that Vannucci 's real name
was Gene Vano . Vannucci or Vano , although sched-
uled to appear at the hearing , never was present. Al
Tesseri is listed on the letterhead as secretary -treasurer.
Tesseri was never called to testify, and Morley in-
dicated on the final day of hearing that Tesseri was
recently jailed by the Oakland Police Department on
numerous felony counts . He-further stated that on
April 8 , 1974, Tesseri was replaced as secretary-
treasurer by Ron Cabral . M. Ramos is listed on the
letterhead as recording secretary . Morley said that she
processes most of the paperwork in the office and takes
minutes of board meetings . The final letterhead listing
is that of R. Cabralle, internal security . A Ron Cabral
testified that he held the office of "Internal Affairs,"
the duties of which included anything from security to
answering grievances . He indicated that he did not
know if he was on the executive board , and did not
know where the union office was located . According to
Morley , Cabral was appointed secretary -treasurer on
April 8 , 1974, but was in jail on numerous felony
counts on the final day of the hearing . Although Mor-
ley testified that Cabral had never held the position of
president of the International Union , Cabral was listed
on the letterhead as holding such office as of May 10,
1972. Morley indicated that the names of persons asso-
ciated with Respondent are deliberately misspelled to
"avoid creditors."
It is not clear on the record if Respondent 's executive
board actually conducts any business . Although Re-
spondent 's constitution and bylaws indicate that the
board is to meet on a regular basis and is to have certain
duties, no minutes of any board meetings or any other
evidence of its operations was introduced despite a sub-
poena for such evidence . Morley only introduced one
agenda of a board meeting allegedly held in 1972.
During the period of the hearings herein, Respond-
ent had no offices and was not listed in the phone book
or in telephone information . Its letterhead contains no
phone number . Over the past several years it has
changed its address innumerable times. When asked
where the main office was located, Morley stated,
"Right now they 'd either be in Glendale or Oakland."
No membership records, financial records, grievance
and arbitration records, or other evidence which would
bear on Respondent 's structure and function were in-
troduced . Respondent has not filed information with
the Department of Labor since fiscal year 1970, and is
under investigation in this regard.
Respondent's constitution and bylaws set forth an
elaborate structure of districts and local lodges below
the level of international officers and executive mem-
bers. However , no evidence was introduced to establish
the existence of these structural levels, although rele-
vant material was requested in a subpoena . Reiley, who
held the position of local president in Chico, testified
that in fact the local never existed . Similarly, Howe,
who was on paper the Fresno Local president, testified
that his position was supposedly temporary for 90 days
and that he never did anything as president.
The manner in which Respondent actually conducts
its operation is revealed by the following evidence. Un-
der Respondent's contract , employees of Urich Oil
SERVICE STATION OPERATORS 813
Company station number 275 in Paradise , California,
and station number 206 in Fresno , California, like
those at other stations , are hired and required to fill out
union membership applications and checkoff authori-
zations by the station manager . Initiation fees and
monthly dues are then checked off from their first full
paycheck by Urich Oil Company. These employees,
however , did not receive union membership cards, co-
pies of collective-bargaining agreements , constitution
and bylaws , or other union materials . The stations do
not have a shop steward and have not been visited by
any union representative . In addition, employees have
not been given prior notice of union elections nor an
opportunity to nominate candidates for the offices.
On September 27, 1972, one employee at the Para-
dise station , Jack Andrews , one of the Charging Par-
ties , was discharged . The following day he obtained
Respondent 's phone number and called it . A person
who identified himself as Charles Morley answered the
phone and , upon hearing of Andrews ' desire to file a
grievance , said he would get right on it and place a call
to Whittier, the main office of Urich Oil Company. He
told Andrews that the representative in the Paradise
area was Rick Storey and gave him a phone number.
Morley did not call Andrews back . Andrews called
Storey, who also said he would get right on Andrews'
problem . Andrews did not receive a call from Storey.
He again called Morley , who indicated that Urich Oil
Company had received no customer complaints regard-
ing Andrews , on which Andrews' termination was al-
legedly based . Andrews again said he wanted to file a
grievance and Morley again referred him to Storey.
Andrews placed several calls to both Storey and Mor-
ley in December 1972 and January 1973 and received
promises from both of some action on his grievance.
Morley promised several times to make a visit to Para-
dise , but failed to keep his appointments . On one occa-
sion Respondent informed Andrews that a job had been
arranged for him at a station in Chico, but when An-
drews contacted the station, he was informed that he
could not be hired.
On January 24, 1973,' Andrews filed unfair labor
practice charges in Case 20-CB-28 10. Storey indicated
shortly thereafter that he was not doing any business in
the Chico area. On January 29, without prior notice,
Andrews was awakened at his home at 1 a.m . by Mor-
ley, Storey , Reiley , and Rick Hutler . Morley brought
out a copy of the unfair labor practice charges and
asked Andrews if he knew anything about them. An-
drews indicated that he had filed the charges because
he did not think Respondent had been doing anything
for him . Morley said that Andrews was caught in the
middle of something and soon all hell was going to
break loose and that there was more to this than An-
drews knew , that a lawyer from the NLRB was against
Morley. Morley left a copy of the constitution and
bylaws and said he was going to work on Andrews' case
all the next day and have Reiley call him . Andrews
never received a call from Reiley . On January 31, An-
drews received a call from Morley indicating that
another job had been arranged for him in Chico and
that Morley would call back regarding the position.
Andrews never received a call. On February 12, Morley
called Andrews and informed him that a grievance
committee had reviewed his case and decided it had
merit and that Morley would pursue the matter with
Urich' s main office . That was the final communication
Andrews had with Respondent . No hearing or any
action was ever taken on Andrews' grievance.
Douglas Hayes , another Charging Party, having
been unable to obtain an explanation of his holiday pay
from the Company, and having been referred to the
Respondent by the Company 's district supervisor,
wrote a letter to Respondent asking for an explanation.
In response to his inquiry he received two communica-
tions on the letterhead of Respondent 's grievance com-
mittee signed by M. Ramos asking Hayes to supply
additional information . Hayes phoned Respondent and
talked to a Joe Anderson, who promised he would
come to Fresno and discuss the matter with the em-
ployees. Anderson never kept his promise.
Hayes then wrote a letter on January 3, saying that
if he received no response from Respondent within 10
days he would turn the matter over to the NLRB. Two
days later , on January 5, Hayes was home asleep at
11:30 p.m., when he received a call from a Don How-
ard, who said he wished to talk to Hayes . Hayes met
with Howard that morning for over an hour . Howard
first showed Hayes a letter from Morley introducing
Howard as Respondent 's representative. Howard has
two green books containing Respondent 's materials.
Hayes asked him for a copy of the contract between
Respondent and Urich Oil Company and Howard re-
ferred him to the blue pages in the green book . Howard
said that there were contracts out on the life of Charles
Morley from union officials and that Howard was con-
cerned for himself at the time. Howard said all the
officials of the Union carried guns . Another employee,
Tom Diel, who was present , inquired about union
membership cards and Howard stated he forgot to
bring them down . Howard also attempted to talk
Hayes into becoming president of a local union in Fre s-
no, but Hayes refused . After the meeting , Hayes went
with Howard on a trip to other Urich stations. During
this trip, Howard informed Hayes that he was consid-
ering turning Respondent into the F.B.I., that he had
personal grievances against Morley, but was unable to
supply any further information on Hayes' own prob-
I All dates hereafter are in 1973 unless otherwise stated lem. Hayes saw Howard on one subsequent occasion
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was given a written statement that there was no
record of his ever having been employed by Urich Oil
Company.
On January 24, Hayes received a call from Morley.
Morley said he had heard through Howard that Hayes
was going ahead with his unfair labor practice charge,
that he was very upset about it and would rather that
Hayes did not, and that Hayes would be wise to just
hang on and see what developed. Hayes went ahead
and filed the charge on January 24. On February 15,
Morley called Hayes and arranged a meeting in Fresno
with Hayes. Morley was accompanied by Cabral. Ca-
bral was introduced as Morley's secretary and body-
guard who was there to assist and protect Morley. He
said he would do whatever Morley wanted him to.
Morley asked Hayes to drop his charges, stating that
Respondent could go to Whittier and get Hayes what
he wanted. Hayes said he would leave the charges on
file and see what developed. Morley asked Hayes to
become a local president, and Hayes indicated he was
still uninterested. Hayes made some statements critical
of Howard, and Morley indicated that Howard would
not be working for Respondent much longer. Cabral
said that Howard would be dealt with by the "goon
squad from Los Angeles," and that Howard would be
sent a warning letter in an envelope coded with eight
1-cent stamps.
On February 17, Hayes received a letter bearing Ca-
bral's name, stating that Respondent was pursuing his
grievance and asking him to withdraw his unfair labor
practice charges. On March 13, Hayes received a letter
signed by R. A. Cabralle at his home in an envelope
bearing eight 1-cent stamps. The letter began by ad-
dressing Hayes with an obscenity.' It indicated that
s The text of the letter is as follows:
Dear [expletive deleted]:
We have carefully reviewed your grievance and found exactly what we
discussed earlier. You are entitled to a $50 uniform allowance, now
... but not as of last summer. As for your idea of trying to force the
company into paying you $1,300 for time you were off, you are off your
[expletive deleted].
You were terminated because of shortages at the station, and you never
filed a grievance with us, or a state labor commissioner. When you filed
your complaint with the NLRB, you told us it was to put pressure on
the company and us to get a payoff.
From your own statements, we have determined you are a lying sack
of [expletive deleted], and you have been referred to our internal
security department for discipline. Your membership to this organiza-
tion has been revoked and we are advising the company that because
you have violated our rules you are no longer a member of this union.
If they continue to allow you to work at the Fresno station, we will place
a picket line about the premises. We suggest you find another industry
to play your games in. Regardless of what your status is with the
company, you have lied to us, and that is a no-no, and you must pay
for your sins.
[Expletive deleted] off ... .
Respondent had determined Hayes' grievance had no
merit, he was a liar, and he would be disciplined by the
internal security department. It further stated that
Urich Oil Company had been advised that Hayes was
no longer a member of the Union and concluded with
another obscenity. This was Hayes' last communica-
tion with Respondent.
The Administrative Law Judge did not pass on the
threshold questions herein, whether Respondent is a
labor organization within the meaning of Section 2(5)
of the Act, and whether Respondent is a bona fide
collective-bargaining representative. We conclude that
Respondent is a labor organization as it is an organiza-
tion "in which employees participate and which exists
for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or condi-
tions of work." Respondent itself admits in its amended
answer that it is an organization made up of service
station employees, thus conceding the element of em-
ployee participation. Moreover, employees financed
the organization by having their dues paid to it and
participated in it by being designated local officers. As
for "dealing with employers," it is clear that Respond-
ent has signed contracts with employers covering work-
ing conditions. Finally, Respondent has been found to
be a labor organization in prior proceedings before the
Board.
We further conclude that Respondent is not a bona
fide collective-bargaining representative for the reasons
set forth hereafter. In reaching our conclusion in Doug-
las that Respondent was not qualified to be a collective-
bargaining representative, we found that Respondent
was vague as to its membership rolls, dues, and regular
membership meeting; its officers and their functions
and duties could not be determined; Respondent added
individuals to its internal structure without the consent
of employees to the advantage of Respondent's con-
trolling officials; its methods of elections were irregu-
lar; and the locals it listed did not in fact exist. The
record in this case, on the aforementioned almost un-
disputed facts, reveals a continuation of the state of
affairs found in Douglas.
Of the three persons listed as members of the six-
person executive board on Respondent's letterhead that
were called to testify by the General Counsel, none was
willing to testify that he actually was such a member.
Thus, Reiley testified that he did not know he was
listed as union president; Storey testified that he had
not had anything to do with the Union for over 6
months; and Ron Cabral testified that he was not a
SERVICE STATION OPERATORS 815
member of the executive board. No officers or officals
of Respondent were called to testify by Respondent
other than Morley himself. The "election" of officers in
late 1972 was clearly a sham as the employees were
given no notice nor any opportunity to nominate candi-
dates themselves. As to the locals listed in Respon-
dent's literature, the record establishes beyond doubt
that the locals in Chico and Fresno never existed. No
evidence was submitted by Respondent other than co-
pies of bylaws bearing local union numbers to establish
the existence of locals in other locations. As to Respon-
dent's representation of its employees, the record.
shows, in the case of Hayes' grievance, initial inaction,
and broken promises by Anderson and Ramos, subse-
quent bad faith in the actions of Howard following
Hayes' threat to file unfair labor practice charges and
an offer to become a local president, blatant coercion
by Cabral and Morley, and finally, an obscene letter
notifying Hayes that he had been ousted from the
Union. In dealing with Andrews' grievance, Respond-
ent first referred the matter to Storey, a nonfunctioning
representative, then made several unkept promises to
find Andrews another job or meet with him regarding
his problems, and finally made a bizarre, unannounced,
and threatening late-night visit by Morley following
Andrews' filing of unfair labor practice charges. No
hearing or any action was ever taken on Andrews'
grievance.
More generally, the record shows that Respondent
deliberately sought to keep its availability to members
and even its whereabouts a mystery by repeatedly mov-
ing its offices or failing to maintain any office at all, and
by concealing its phone numbers. Only employees with
the extreme diligence of Hayes and Andrews could be
expected to make contact with Respondent, let alone
receive any representation. Finally, Respondent failed
to offer any probative evidence as to its representative
functions with regard to other employees.
In our view, the facts show conclusively that Re-
spondent continues to be indifferent to employee inter-
ests, unwilling or unable to represent the employees
fairly, impartially and in good faith, and therefore lacks
the capacity to act as the representative of the em-
ployees. We thus conclude that Respondent is not a
bona fide collective-bargaining representative.
Contrary to the Administrative Law Judge, we are
further persuaded that, as a matter of Law, the
execution,' maintenance, and enforcement of a collec-
3 The General Counsel concedes, and we agree , that the execution of 'the
contract in December 1971, which was beyond the 10(b) period, is an act
which cannot be reached by the Board's processes Local Lodge No. 1424,
International Association of Machinists, AFL-CIO [Bryan Manufacturing
Company] v NL R.B, 362 U S 411 (1960) However, the maintenance and
enforcement of the agreement is a continuing violation because Respon-
dent's illegitimate status continued Local Union No. 269, International
Brotherhood ofElectrical Workers, AFL-CIO (National Electrical Contrac-
tors Association), 149 NLRB 768 (1964), Houston Maritime Association,
tive-bargaining agreement by a labor organization
which is not a bona fide collective-bargaining represen-
tative restrains and coerces employees in the exercise of
their Section 7 rights. The contract in these circum-
stances is coercive because it contains a union-shop
provision which imposes membership in a non bona
fide collective-bargaining representative on employees
as a condition of employment, and because under its
terms exclusive recognition is accorded to such a labor
organization, which thereby prevents employees from
achieving meaningful representation from a bona fide
collective-bargaining representative.
We also find that Respondent's conduct violates Sec-
tion 8(b)(2) of the Act as it failed to meet the'condition
in the proviso to Section 8(a)(3) that a labor organiza-
tion be the representative of the employees as provided
in Section 9(a) of the Act. As Respondent was not the
bona fide collective-bargaining representative of the
employees for which it maintained and enforced a
union-security clause with the Employer, it violated
Section 8(b)(2) of the Act.
Finally, we find that Respondent additionally vi-
olated Section 8(b)(1)(A) of the Act by failing to repre-
sent fairly the Charging Parties.' The charges alleged
this conduct to be violative of the Act. However, the
complaint was based solely on the fact that Respondent
was not a bona fide collective-bargaining representative
and as such could not maintain and enforce a contract
with the employers herein. Respondent's conduct
against Hayes and Andrews, the Charging Parties, was
only introduced to show that Respondent was not a
bona fide collective-bargaining representative. How-
ever, in our view, the matter was fully litigated, as the
facts concerning Respondent's failure to represent
Hayes and Andrews support both a finding that Re-
spondent was not a bona fide collective-bargaining rep-
resentative and that Respondent was not representing
these two employees fairly. Thus, Respondent was
placed on notice that it must defend whether it did
represent these employees fairly. Since it offered no
evidence to counter the General Counsel's case con-
cerning its egregious mistreatment of Hayes and An-
drews, we find that Respondent violated Section
8(b)(1)(A) with regard to its conduct toward these two
individuals.
ADDITIONAL CONCLUSIONS OF LAW
Add the following to the Administrative Law Jud-
ge's Conclusions of Law:
"3. By performing, maintaining, and giving force and
effect to collective-bargaining agreements covering all
Inc, 168 NLRB 615 (1967), enforcement denied on other grounds 426 F 2d
584 (CA 5, 1970)
4 Since the complaint does not allege this conduct by Respondent to be
a violation , Chairman Miller does not join in this finding
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees employed by Urich Oil Company, Urich
Independent Stations, Urich California Stations, Unch
Oil Company of Oregon, Urich Oil Company of
Nevada, East Side Oil Company, and Independent
Service Station Operators at a time when Respondent
was not a bona fide collective-bargaining representa-
tive, Respondent has restrained and coerced employees
in their exercise of rights guaranteed in Section 7 of the
Act and has committed an unfair labor practice within
the meaning of Section 8(b)(1)(A) and 8(b)(2) of the
Act.
"4. By failing to represent fairly Jack Eugene An-
drews and Douglas P. Hayes, Respondent has re-
strained and coerced these employees and other per-
sons in violation of Section 8(b)(1)(A) of the Act.
"5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Interna-
tional Brotherhood of Service Station Operators of
America aka International Brotherhood of Profes-
sional Services, Oakland, California, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Seeking recognition, representing, acting or pur-
porting to represent, or holding itself out as the exclu-
sive collective-bargaining representative of employees
of the employers herein, unless and until said Respond-
ent has carried the burden of showing that it meets the
requirements of a bona fide collective-bargaining repre-
sentative and has been duly certified by the National
Labor Relations Board to be such representative fol-
lowing a secret ballot election or elections held by said
Board in accordance with the National Labor Rela-
tions Act, as amended.
(b) Maintaining, performing, giving effect to, enforc-
ing, or attempting to enforce any agreement, under-
standing, or practice with the employers herein.
(c) Causing or attempting to cause the employers
herein to discriminate against employees or prospective
employees by requiring them to join Respondent, a
labor organization which is not a bona fide collective-
bargaining representative, as a condition of employ-
ment in violation of Section 8(a)(3) of the Act.
(d) Failing to represent fairly employees Douglas P.
Hayes and Jack Eugene Andrews.
(e) In any other manner restraining or coercing em-
ployees or prospective employees of the employers
herein in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment
as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Reimburse all employees of the employers herein
in the full amount of any initiation fees, dues, and other
fees or assessments unlawfully collected from them
pursuant to the Respondent' s unlawful agreements
with the employers herein, provided, however, that this
Order shall not be construed as requiring reimburse-
ment for any such dues collected more than 6 months
prior to the date of the charges herein.
(b) Upon demand by the Regional Director for Re-
gion 20 of the National Labor Relations Board, or by
any signatory to any collective-bargaining agreement
referred to in 1(b) of this Order, or signatory of any
dues-checkoff or other payment authorization related
thereto, forthwith surrender to such person any such
collective agreement or contract, dues-checkoff or
other payment authorization, executed by him under
circumstances herein found to be unlawful.
(c) Upon demand by said Regional Director, make
available to him or other Board agent, for examination
and copying, all currently deemed valid (i.e., by Re-
spondent) collective agreements or contracts, as well as
any dues-checkoff or' other payment authorizations and
records, of any of the employers herein, and all records
reflecting payments to Respondent thereunder or by
virtue thereof.
(d) Post at Respondent's business offices, union
halls, and meeting places, copies of the attached notice
marked "Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 20, after
being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Deliver signed copies of the attached notice
marked "Appendix" to said Regional Director in a
quantity to be designated by said Regional Director, for
the purpose of posting by gasoline service station deal-
ers of the employers herein, if desirous and willing.
(f) Make whole Douglas P. Hayes and Jack Eugene
Andrews for any loss of pay they may have suffered by
virtue of Respondent Union' s denial of fair representa-
tion at an appropriate time from the time that they
5 In the event that this 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 Relation Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
SERVICE STATION OPERATORS 817
made their first request to Respondent to redress their
grievances until the date they obtained substantially
equivalent employment, less their net earnings during
the backpay period, together with interest thereon at a
rate of 6 percent per annum.
(g) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing at which we and all other parties
had the opportunity to call witnesses and present evi-
dence, the National Labor Relations Board has decided
that International Brotherhood of Service Station Op-
erators of America aka International Brotherhood of
Professional Services has violated the National Labor
Relations Act, as amended, and it has ordered us to
post this notice and to live up to its terms.
WE WILL NOT seek recognition, represent, act or
purport to represent, or hold ourselves out as the
exclusive collective-bargaining representative of
employees of Urich Oil Company, Urich In-
dependent Stations, Urich California Stations,
Urich Oil Company of Oregon, Urich Oil Com-
pany of Nevada, East Side Oil Company, and In-
dependent Service Station Operators unless and
until we have carried the burden of showing that
we meet the requirements of a bona fide collective-
bargaining representative and have been duly cer-
tified by the National Labor Relations Board to be
such representative following a secret ballot elec-
tion or elections held by said Board in accordance
with the National Labor Relations Act, as
amended.
WE WILL NOT maintain, perform, give effect to,
enforce, or attempt to enforce any agreement, un-
derstanding, or practice with the aforesaid em-
ployers.
WE WILL NOT cause or attempt to cause the em-
ployers herein to discriminate against employees
or prospective employees by requiring them to join
our labor organization which is not a bona fide
collective-bargaining representative, as a condi-
tion of employment in violation of Section 8(a)(3)
of the Act.
WE WILL NOT fail to represent fairly employees
Douglas P. Hayes and Jack Eugene Andrews.
WE WILL NOT in any other manner restrain or co-
erce employees or prospective employees of the
employers herein in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organ-
ization as a condition of employment as author-
ized by Section 8(a)(3) of the Act.
WE WILL reimburse all employees of the employ-
ers herein in the full amount of any initiation fees,
dues, and other fees or assessments unlawfully col-
lected from them pursuant to our unlawful agree-
ments with the employers herein, provided, how-
ever, that this Order shall not be construed as
requiring reimbursement for any such dues col-
lected more than 6 months prior to the date of the
charges herein.
WE WILL make whole Douglas P. Hayes and
Jack Eugene Andrews for any loss of pay they may
have suffered by virtue of our denial of fair repre-
sentation at an appropriate time from the time that
they made their first request to us to redress their
grievances until the date they obtained substan-
tially equivalent employment, less their net earn-
ings during the backpay period, together with in-
terest thereon at a rate of 6 percent per annum.
INTERNATIONAL BROTHERHOOD OF
SERVICE STATION OPERATORS OF
AMERICA AKA INTERNATIONAL
BROTHERHOOD OF PROFESSIONAL
SERVICES
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The hear-
ing in these cases, held on various dates in February, March,
and April, 1974, is based on unfair labor practice charges
filed in the above-captioned cases on January 24, 1973, by
Jack Eugene Andrews and Douglas P. Hayes, and a con-
solidated complaint issued on March 16, 1973, on behalf of
the General Counsel of the National Labor Relations Board,
by the Regional Director for Region 20, alleging that the
above-named Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(b)(2) and (1)(A) of the
National Labor Relations Act, herein called the Act. Re-
spondent filed an answer, and thereafter an amendment to its
answer, denying the commission of the alleged unfair labor
practices.
Upon the entire record,' from my observation of the de-
' At the conclusion of the hearing, the parties agreed that General Coun-
sel would secure from the Employer, the Party to the Contracts involved in
this case, certain information which would be incorporated into the record
In accordance with the agreement , the General Counsel submitted a list of
the officers and shareholders of the Unch Oil Company and its several
subsidiaries, the Articles of Incorporation for these enterprises, and the
dues-deduction authorization executed by employee Jack Andrews This
information has been made a part of the record herein . I have not considered
(Continued)
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meanor of the witnesses , and having considered the posthear-
ing briefs , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER INVOLVED
The Urich Oil Company is a California corporation with
its principal office in Whittier, California, and is engaged in
the retail sale of gasoline and petroleum products in Oregon,
Nevada, and California at gas stations owned by Unch Oil
Company of Oregon, an Oregon corporation herein called
Urich of Oregon; Urich Oil Company of Nevada, a Nevada
corporation herein called Urich of Nevada; and East Side Oil
Company, a California corporation herein called Eastside
Oil. Prior to January 1, 1974, the Urich Oil Company sold
its products in the State of California through four California
corporations-Urich Independent Stations, Urich California
Stations, Independent Service Station Operators and East
Side Oil-all of which on December 31, 1973, were merged
into Eastside Oil. Unch of Oregon, Unch of Nevada, Eastside
Oil, Urich Independent Stations, Unch California Stations,
and Independent Service Station Operators are each a wholly
owned subsidiary of Unch Oil Company and, together with
Urich Oil Company, have been designated herein as the
Urich Oil Companies. The Unch Oil Companies have com-
mon officers , common management, a common labor rela-
tions policy and, as found previously, are commonly owned.
In these circumstances , I find that at all times material the
Urich Oil Companies constituted one employer within the
meaning of the Act.
During 1973, the Urich Oil Companies, in connection with
their retail operations, received gross revenues in excess of
$500,000 and purchased and received in excess of $50,000
worth of goods which crossed state lines . The Unch Oil
Companies separately and together constitute an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
Ii THE QUESTION PRESENTED
The ultimate question presented by the pleadings and liti-
gated at the hearing was well put in the General Counsel's
posthearing brief: "The question to be decided . . is
whether a labor organization which is not a bona fide collec-.
tive bargaining representative violates the Act by accepting
recognition from and maintaining a contract with an em-
ployer."
III THE ALLEGED UNFAIR LABOR PRACTICES
the Respondent , and Jack Urich , the president of Urich Oil
Company , affixed their signatures on separate but identical
collective -bargaining agreements covering the employees em-
ployed by the Unch Oil Companies . These agreements,
herein referred to as the agreement , contain a lawful union-
security provision requiring membership in Respondent after
30 days of employment as well as a lawful dues -checkoff
authorization provision The agreement , effective until
December 31, 1974 , does not on its face appear to contain
substandard terms and conditions of employment . There is
no evidence that the terms of the agreement are substandard
or that the Urich Oil Companies either with or without the
consent of Respondent abandoned the agreement .' Nor is
there any contention or evidence that Respondent at the time
it entered into the agreement did not represent a majority of
the employees covered by the agreement.3 In any event,
such a contention would be barred by Section 10(b) of the Act
inasmuch as the unfair labor practices were not filed in this
case until over 1 year after the Respondent accepted recogni-
tion and entered into the agreement with the Urich Oil
Companies.'
On June 7 , 1972, the Board in Douglas Oil Company, 197
NLRB 308 (1972), issued its Decision and Order Rescinding
Certification wherein it found , in substance , that Respondent
was not a bona fide collective -bargaining representative. In
Douglas Oil Company, on the basis of a record which covered
a time span from July 1969 through September 1971, the
Board made the following findings - ( 1) Respondent was
created , designed , and put into operation by Charles Morley
for his personal gain and interest and that Morley or some
other individuals would change the Respondent 's internal
structure if it appeared that such a change would work to the
advantage of Respondent and/or Morley . (2) The president
of Respondent, while acting as an employer , had entered into
a collective-bargaining agreement with Respondent . (3) Re-
spondent had no affiliated local unions , had never held a local
membership meeting , and could not substantiate its claim
that it had designated certain individuals to represent the
membership on a local basis . (4) Respondent had attempted
to extend its coverage to unrepresented service stations and,
thus, to forestall organizing campaigns from "other" labor
organizations , without affording the employees the right to a
self-determination election . For all of these reasons, the
Board concluded that "[Respondent] is in reality something
other than a collective bargaining representative ." In reach-
ing this conclusion , the Board relied on McDonald's of
Canoga Park, Calif, Inc., 162 NLRB 367 (1966), where it
had reaffirmed the principle that a labor organization must
have no ulterior purpose in its single-minded protection and
A. The Respondent 's Bargaining Relationship With the
Urich Oil Companies and the Board 's Decision That
Respondent Is Not a Bona Fide Bargaining Representative
The Unch Oil Company through its wholly owned subsidi-
aries sells gasoline in about 75 retail outlets. On December 17,
1971, Charles Morley, the secretary-treasurer of the Interna-
tional Brotherhood of Service Station Operators of America,
other material submitted by the General Counsel which was not covered by
the parties ' agreement to supplement the record
3 The General Counsel, to the contrary, admits in the consolidated com-
plaint that the Respondent and the Urich Oil Companies have "performed,
maintained and given force and effect to the [agreement] "
3 In two of the contractual units-Eastside Oil and Independent Service
Station Operators-the evidence establishes that the Respondent received
recognition only after it had been designated by a majority of the units'
employees in a card check conducted by the California Department of
Industrial Relations Conciliation Service
4 Sec 10(b) in pertinent part provides "that no complaint shall issue
based upon any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board " See Local Lodge No. 1424,
International Association of Machinists, AFL-CIO [Bryan Mfg. Co.] v
NLR.B., 362 U S 411 (1960)
SERVICE STATION OPERATORS 819
advancement of the interests of the employees who have se-
lected it as their collective-bargaining representative. The
Board in Douglas Oil Company concluded that a substantial
doubt existed as to whether the Respondent acted or was
competent to act as a representative under this standard and,
as the Respondent , by its conduct at the hearing , precluded
resolution of that doubt , the Board dismissed representation
petitions filed by Respodent and revoked a certification
which had been issued to the Respondent.'
B. An Evaluation of the General Counsel 's Contentions
The consolidated complaint in this matter alleges that the
Respondent is not a "bona fide collective bargaining repre-
sentative" and that , by entering into , maintaining , and giving
effect to the collective -bargaining agreement with the Urich
Oil Companies without being a "bona fide collective bargain-
ing representative ," the Respondent violated Section
8(b)(1)(A) and (2) of the Act. The General Counsel in his
postheanng brief urges that "a labor organization which is
not a bona fide collective bargaining representative violates
Section 8 (b)(1)(A) and (2) of the Act by accepting recognition
as the representative of employees and by maintaining a con-
tract with union security provisions."
Concededly , this is a case of first impression. Although the
Board will not , under Section 9 of the Act , conduct a repre-
sentation election or ceritfy that a union has won such an
election , and will revoke such a certification where the union
involved fails to qualify as a so -called bona fide collective-
bargaining representative or where its interests are found to
conflict with those of the employees, the Board has never held
that , in accepting recognition and entering into a collective-
bargaining relationship with an employer, a union commits
an unfair labor practice if it is not a so-called "bona fide
collective bargaining representative ." In urging that such
conduct by a union which is not a bona fide bargaining repre-
sentative constitutes a violation of the Act , the General Coun-
sel has cited several cases which I have carefully considered
but am not persuaded that the type of conduct alleged to be
bad in the instant case falls within the ambit of either Section
8(b)(1)(A) or 8 (b)(2) of the Act.
This is not a situation where the Respondent accepted
recognition and entered into its collective -bargaining agree-
ment with the Urich Oil Companies when Respondent did
not represent a majority of the employees covered by the
agreement. Nor is there evidence that Respondent is other-
wise an unlawfully assisted union .6 Under the circumstances
5 During the course of the instant hearing , the General Counsel requested
that I take judicial notice of the Douglas Oil Company decision I granted
this request and , as set out in the text , have relied on the Board 's findings
and conclusions in Douglas Oil Company insofar as they relate to the Re-
spondent's status as collective-bargaining representative The essential issue
involved in the Douglas Oil Company case is identical to the one involved
in the instant case and Douglas Oil Company involved the potential loss by
Respondent of significant rights . Under these circumstances , it seems to me
that under principles of collateral estoppel, the Board 's finding in Douglas
Oil Company that the Respondent is not a bona fide bargaining representa-
tive is controlling for the period of time involved in that case Also, I note
that Respondent was given the full opportunity in the instant case to demon-
strate the incompleteness of the record in Douglas Oil Company but failed
to do so
6 The sole evidence of unlawful assistance given Respondent by the Urich
Oil Companies is that , rather than allow new employees 30 days in which
of this case, as detailed earlier , I must presume that the
agreement entered into between Respondent and the Urich
Oil Companies is not substandard and that , at the time recog-
nition was granted and the agreement executed , Respondent
had been designated as exclusive bargaining agent by a
majority of the employees covered by the agreement.
Nor is this case , as contended by the General Counsel,
analogous to a situation in which a union has impermissibly
contracted away employee rights guaranteed by Section 7 of
the Act . See N. L.R.B. v . Magnavox Company of Tennessee,
415 U.S . 322 (1974). The Respondent has not , as urged by the
General Counsel , contracted away the employees' right to
bargain collectively through "other" labor organizations
For, if Respondent is not a bona fide bargaining representa-
tive, the Board in a representation proceeding brought under
Section 9 (a) of the Act , consistent with existing law, will not
find that the collective -bargaining agreement in this case is a
bar to an election . In other words , a question concerning
representation may be raised by "another" labor organization
by a petition for certification or by an employee by a petition
for the decertification of the Respondent . Plainly , the em-
ployees employed by the Unch Oil Companies , if they con-
clude they were misled when they designated the Respondent
to represent them and now want to rid themselves of Re-
-_spondent , are not "in reality trapped in this situation" as
urged by the General Counsel . Moreover , the Respondent
under the Act has an affirmative duty to actually fairly repre-
sent the employees . Miranda Fuel Company, Inc., 140 NLRB
181 (1962). If the employees covered by the Respondent's
bargaining agreement with the Urich Oil Companies are the
victims of "unfair or irrelevant or invidious treatment by the
[Respondent ] in matters affecting their employmc .it," they
may charge the Respondent with an unfair labor practice
and, if it is meritorious , the Board will remedy the specific
wrongs inflicted upon the employees. Miranda Fuel Com-
pany, Inc., supra. There is, incidentally , no allegation in the
present case that Respondent violated the Act because it
failed or refused to carry out its statutory duty of fair repre-
sentation . Although the unfair labor practice charges filed in
this case alleged in substance that the Respondent had vi-
olated the Act because it was not fairly representing the
employees , the consolidated complaint is based specifically
on the Board 's finding in Douglas Oil Company that the
Respondent is not a bona fide bargaining representative, and
not upon any actual failure on its part to fairly represent the
unit employees.'
For the reasons set forth above , I find that the Respondent
did not , as alleged in the consolidated complaint , engage in
conduct violative of Section 8(b)(1)(A) and (2) of the
Act.' Under the circumstances , it is not necessary for me to
to join the Respondent , the Employer required them to join the Respondent
immediately upon their employment The General Counsel did not allege
that the Respondent was a party to this unlawful practice and, in any event,
the evidence does not preponderate in favor of a fording that Respondent
was either a party to or ratified the Employer's unlawful conduct
' It is possible, perhaps , that the Respondent in certain respects within the
10(b) period may have been derelict in its statutory duty of fair representa-
tion in failing to represent employees Andrews and Hayes-the Charging
Parties-but the consolidated complaint does not so allege and this issue has
not been presented to me for decision
8 The initial recognition of the Respondent by the Unch Oil Companies
and the entering into of the collective -bargaining agreement is conduct
(Continued)
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pass on the General Counsel's contention that the Respond-
ent within the 10(b) period and continuing up to the date of
the hearing was not a bona fide collective-bargaining repre-
sentative as the term is defined in Douglas Oil Company. Nor
do I pass on the contention that the Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.9
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following-
which is time barred by Sec 10(b) of the Act from constituting an unfair
labor practice Accordingly, I have not decided whether a labor organization
which is not a bona fide bargaining representative violates the Act by accept-
ing recognition and entering into a collective-bargaining agreement The
only issue posed by this case-which I have decided-is whether such a
union violates the Act by maintaining a collective-bargaining agreement
9 In this regard, I am of the view that the language of the Act makes it
clear that an organization may be a "labor organization" within the statutory
framework of the Act without being a bargaining representative See
N.LR.B v Cabot Carbon Co, 360 U S 203 (1959) But, even under the
liberal construction of Sec 2(5) of the Act, given by the Supreme Court on
Cabot Carbon, it is a close question as to whether the Respondent is an
organization "in which employees participate," a question I need not an-
swer
CONCLUSIONS OF LAW
Company of Nevada, Eastside Oil Company, and Independ-
ent Service Station Operators together and separately consti-
tute an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2 International Brotherhood of Service Station Operators
of America aka International Brotherhood of Professional
Services, the Respondent, has not engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: .
ORDER10
The consolidated complaint is dismissed in its entirety.
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
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1. Urich Oil Company, Urich Independent Stations, Unch
California Stations, Urich Oil Company of Oregon, Urich Oil