Music-Vend Distributing Co.

National Labor Relations Board - Board Decisions

Apr 16, 1973

202 N.L.R.B. 1124 (N.L.R.B. 1973)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Music-Vend Distributing Company and John M.
Salkin . Case 19-CA-5925
April 16, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
) On January 30, 1973, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this, proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the 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
and to adopt his recommended Order.
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 the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge: On
October 25, 1972, a hearing was held in the above-entitled
matter in Seattle, Washington. The complaint, issued
August 18, 1972, is based on a charge filed July 6, 1972, by
John M. Salkin and alleges violations of Section 8(a)(1)
and (3) of the National Labor Relations Act by Music-
Vend Distributing Company, herein called Respondent.
The complaint alleges in material substance that Respon-
dent discharged John Salkin on March 7, 1972, because he
demanded backpay from Respondent pursuant to a
collective-bargaining' agreement then in effect between
Respondent and Teamsters Union Local 353. Respon-
dent's answer admits that Salkin was discharged and
denies that any unfair labor practice was committed.
Upon the entire record in this proceeding, including my
observation of the witnesses, and after due consideration of
the posthearing briefs, I make the following:
FINDINGS OF FACT
Respondent is a Washington corporation engaged in the
sale, distribution, maintenance , and repair of coin -operat-
ed amusement and music equipment for the Pacific
202 NLRB No. 170
Northwest and Alaska. It handles amusement devices,
novelty equipment, food, and various other types of
vending equipment, juke boxes, and pool tables. It also
handles Seeburg Muzac background music in the Greater
Seattle and Western Washington area . Its direct sales
outside the State of Washington have an annual value in
excess of $50,000.
Its shop mechanics are, and have been for more than 10
years, represented by Wholesale and Retail Delivery
Drivers and Salesmen , Local Union No. 353, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union. The
collective-bargaimng agreement between Respondent and
the Union requires that employees covered thereby become
members of the Union after 30 days and remain members
as a condition of employment. It contains a broad
grievance clause ending in binding arbitration. Its wage
scale for apprentice mechanics contemplates an appren-
ticeship period of 2 years.
Respondent's president and general manager , Raymond
M. Galante, has held his present position for over 10 years.
His practice has been to hire trained journeymen mechan-
ics because the difference in pay was too small to justify
the expense of training. Prior to February 1972, Respon-
dent had hired only one apprentice mechanic . He complet-
ed his apprenticeship and is working as a journeyman for
Respondent.
Sol Esfeld, president of American Discount Corporation,
has been in the general financing business in Seattle for
over 50 years. His company finances most of Respondent's
credit sales.
John Salkin is the grandson of Esfeld' s sister. In
February 1971, he received a head injury and, on Esfeld's
advice, voluntarily entered Northern State Hospital, a
mental hospital. He remained there about 6 weeks and it
was a "homfying experience." Upon his release , Esfeld
obtained employment for him with one of Esfeld's
customers, Amusement Sales Company. When the opera-
tor of Amusement Sales told Esfeld that "with problems
arising from time to time" he would not keep Salkin any
more, Esfeld went to his old friend, Galante. Esfeld
testified:
I told him of the situation and that this boy was
desperately in need of work and we had to do
something to keep him employed, to get him straight-
ened out so that he would become a responsible person
in the community and get away from the problems
which he had been involved with. I felt the only way to
do that would be for me to get him a permanent job. So
I went to Mr. Galante and I told him this thing. He told
me he didn't need anyone at the time. I said, "You put
him on anyway. Even if I have to pay his wages I want
you to employ the man so he will be working and keep
out of trouble that way. I don't care what kind of work
it is, or what you pay him, just so that he will have a
job." So finally he said, "All right, you send him down
to me and I will see what I can do."
Salkin presented himself to Galante in June 1971.
Galante told Salkin that he had talked to Salkin' s great-
uncle and while he did not have an opening, he would hire
Salkin as a cleanup man and general handyman if he
MUSIC-VEND DISTRIBUTING CO. 1125
would do as he was told under the direction of Respon-
dent 's service manager , Don Sears . The jobs assigned to
Salkin by Sears were assisting the warehouseman in
moving , crating, and cleaning equipment . Within a short
period of time , Sears told Galante that he didn 't want to
use Salkin any more. Sears reported that Salkin was not
doing his work , that when directed to clean a juke box he
would "just swish over it ," that at lunchtime he would go
out on the grass and oversleep , at one time napping on a
pool table , that he frequently left the premises without
Sears' knowledge or permission , and that he antagonized
the mechanics by taking equipment apart , without permis-
sion , and making more work for them. Galante 's reply was:
I have a problem . I am trying to do a favor. We are
trying to straighten out Mr . Salkin . Would you please
let me handle it and try to do your level best in the
back.
Galante reported to Esfeld that "it wasn 't working out,"
and Galante would have to let Salkin go. Esfeld "protested
and virtually insisted that [Galante ] keep him on," and
Galante capitulated.
Galante did call Salkin - to his office and tell him his
wages were being reduced from $2 .00 per hour to $1.65 per
hour. Salkin told his grandmother . She told her brother.
Esfeld told Galante "that was not right" and Galante
raised Salkm 's pay to $2.50 per hour.
There was no improvement in Salkin 's work or conduct
and complaints continued to flow from Sears. In February
1972, after Galante 's niece, who worked in Respondent's
office , complained that she was being bothered by Salkin,
Galante called Esfeld , told him that the situation was
becoming intolerable and that he did not think Esfeld was
being fair in asking him to keep Salkin , and asked Esfeld to
find him ajob somewhere else.
Esfeld replied that if Galante would start Salkin on an
apprenticeship program , which was partly subsidized by
Federal funds , and keep him for a few months more,
Esfeld would be able to place Salkin with a different
employer . Galante agreed.
Galante told Salkin that he was sending him to the union
office to apply to become an apprentice mechanic and that
this would be a marvelous opportunity . Salkin would be
able to spend all of his time getting direction from the
journeymen mechanics , would be able to get gainful
employment , settle down , be a man, and contribute to
society. Salkin was "overjoyed" that he was going to the
Union and was going to make "union wage" because he
had found out what the union wage was. Galante made an
appointment for Salkin to see the union business agent,
Russell Olson.
On Friday, February 25 , 1972, in Olson's office , Salkin
filled out an application for membership . On the line for
"Occupation" he wrote, "App . Mechanic," and on the line
for "Date Employed" he wrote , "July 15, 1971." Olson
asked why Salkin had not applied for membership after 30
days. Salkin replied that he had been told to "stay low"
and to "hide out" whenever Olson visited Respondent's
shop.' Olson described the wages and benefits to which
apprentice mechanics were entitled under the union
contract . Salkin told Olson what he had been making and
asked how much money he would have coming in back
wages. Olson did some figuring and told Salkin that
Respondent owed him about $2,600 in back wages. Salkin
asked when Olson would be seeing Galante , and Olson
answered that it would be sometime during the following
week.
During the following week , Salkin continued to work as
a handyman . When he received his paycheck on Friday,
March 4, he asked Galante why he was not receiving umon
wages. Galante answered that his new wage would start the
next week , and Salkin said , "Well, o.k ., thank you.",
On Tuesday , March 7 , Olson called on Galante. Olson
told Galante that he would have to pay Salkin contract
wages and benefits from July 1971. Galante answered that
Salkin was not covered under the wages and conditions of
the union contract , that he was trying to help him and
doing him a favor by giving him a job, and that he was not
going to give him any backpay.
Salkin testified that Galante called him to the office as
Olson was leaving and:
Mr. Galante said , "I hear you are trying to collect
back wages ." I said , "Yes." He said , "You can't collect
back wages because you don 't have back wages coming
to you . If you would like to work here and continue
working here it would be best for you to go back up to
the union and tell them that you began work just last
month, if you would like to continue working here and
if you do not wish so then you won 't be working after
today." He proceeded to ask me would I do that . I said,
"Well I would need some time to think about this." I
asked him if I could take some time to go talk to an
advisor of my family. . . . He said , "Sure, you can
have time." [Fifteen minutes later] I went into Mr.
Galante's office and I said , " I decided I am going to try
to collect back wages and the reason is that the umon
said I had them coming to me. I feel that I have been
worked around quite a bit." He said , "Well, you just
can't work here any more then, if you are going to try
to collect back wages. I will have my secretary write out
your check... .
Galante testified that when he discharged Salkin,
He came into my office . . . after he had gone up to the
union . . . the first part of March sometime . I am not
sure exactly when it was . He had been up to the union
and filled out the papers . He had found that he
interpreted that to mean that he was hired as an
apprentice when I first hired him . Therefore he was due
this back pay that we are discussing. I told John that he
had never been hired as an apprentice , that I had never
hired him under the bargaining agreement and that I
only hired him out of doing his great-uncle a favor and
that he had been hired as a handyman and a general
helper around the place . The reason I sent him to the
union to join the union was because from that point I
hoped to make a man out of him , to get a job as an
apprentice. . . . When he told me-when he had this
pay coming I couldn 't believe it. It was the culmination
of all this aggravation that I had which stayed with him
from the very first day that'I hired him through Sol.
There is , no evidence that the discharge was protested
I This is a palpable fabrication
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either by Salkin or by the Union. The Union did prosecute
Salkin's backpay claim under the grievance and arbitration
section of the contract. On July 5, 1972, an award was
handed down by Willard G. Olson, state labor mediator,
holding:
Mr. John Salkin was not subject to the terms and
conditions of the labor agreement until he was hired as
an apprentice on February 25, 1972. The employer, Mr.
Ray Galante shall pay Mr. Salkin the difference
between what he received and the apprentice wage rate
of the contract for 'all time worked after February 25,
1972. The employer shall also pay Health and Welfare
and all other fringe benefit contributions which are due
from February 25, 1972, until Mr. Salkin's termination.
On July 6, 1972, Salkin filed the charge giving rise to the
instant proceeding.
Conclusionary Finding
John Salkin was discharged because he falsely represent-
ed to Olson that he had been employed by Respondent in a
bargaining unit position, i.e., apprentice mechanic, contin-
uously since July 15, 1971, and because he refused, when
given the opportunity by Galante, to correct this false
2 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
representation by telling Olson the truth. Giving false
information to a Union to persuade it to extort money
from an employer for work not performed is an activity
outside of the protection of the National Labor Relations
Act.
CONCLUSIONS OF LAW
1. Music-Vend Distributing Company is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not, on this record, engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) or (3) 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: 2
ORDER
The complaint is dismissed in its entirety.
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