Peninsula General Tire Co., Inc.,

National Labor Relations Board - Board Decisions

Nov 8, 1963

144 N.L.R.B. 1459 (N.L.R.B. 1963)

PENINSULA GENERAL TIRE COMPANY, INC. 1459
not prohibited by the Act. Had the Respondent sought to apply its union-shop clause
to Crume, a different situation might exist, but it did not do so.
Because I have found that the Respondent did not cause or attempt to cause an
employer to discriminate against an employee in violation of Section 8(a)(3) of
the Act-that is, to cause discrimination to encourage membership in a labor organiza-
tion-I find that the General Counsel has not proved a violation of the Act under
Section 8(b) (2) of the Act. It appears to me that the General Counsel was regarding
the alleged violation of Section 8(b)(1) (A) only as one deriving from a violation
of Section 8 (b) (2), in which case the alleged violation of Section 8(b) (1) (A) would
fail with the failure to prove a violation of Section 8(b)(2).
However, even if he did not include the allegation of violation of Section
8(b)(1)(A) of the Act in the complaint as a derivative violation, I should neverthe-
less find no independent violation of that subsection. The General Counsel, it is true,
amended the complaint to allege not only that the Respondent had caused Crume's
discharge because Crume was not a member of Respondent but also because he "had
not been cleared for employment in Alaska by Respondent." I do not understand
that this amendment was made to permit proof of an independent violation of
Section 8(b) (1) (A). But the fact that the discharge was caused by the Respondent's
refusal "to clear" Crume, does not necessarily prove that the Respondent restrained
or coerced Crume in the exercise of the rights guaranteed in Section 7 of the Act
any more than it proves a violation of Section 8(b) (2) of the Acts I find that the
evidence here was insufficient to prove that it did.
CONCLUSIONS OF LAW
1 West Coast is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. West Coast and Berg are employers within the meaning of Section 2(2) of
the Act.
3. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
4. The Respondent has not caused West Coast to discriminate against Crume in
violation of Section 8(a)(3) of the Act and therefore has not engaged in action in
violation of Section 8(b)(2) of the Act.
5 The Respondent has not restrained or coerced Crume in the exercise of the
rights guaranteed in Section 7 of the Act within the meaning of Section 8(b) (1) (A)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions of law and upon the
entire record in the case, I recommend that the complaint be dismissed in its entirety.
G Millwrights and Machinery Erectors, etc., supra.
Peninsula General Tire Company, Inc.,' Petitioner and Garage
and Service Station Employees Union , Local No. 665 , Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America ,' Union . Case No. ?0-RM-536.
November 8, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Wesley J.
Fastiff. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 Hereinafter referred to as Peninsula or the Employer.
2 Hereinafter ieferred to as the Union
144 NLRB No. 135.
727-083-64-vol. 144-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer seeks an election in a unit of its tire mounters
and driver-salesmen. The Union moved that the petition be dismissed
on the ground that it has never had any interest in representing the
employees who are the subject of the petition and that, therefore, no
question concerning representation exists.'
Peninsula's operation consists of the wholesale and retail sale and
service of vehicular tires. A number of the Employer's competitors
bargain directly with the Union through the California Tire Dealer's
Association.' A collective-bargaining contract between the Associa-
tion and the Union was due to be reopened on August 12, 1963. Early
in June 1963, the Union's business agent, Breenfleck, was contacted by
Polmgren, secretary of the Association, and told that the Association
had unsuccessfully attempted to get a power of attorney from the
Employer to represent it as part of the association group in collective-
bargaining negotiations, and that other Mire dealers in the area were
complaining about Peninsula's allegedly substandard wages and hours.
Polmgren asked Breenfleck if ". . . he could do anything about it."
Breenfleck testified that, as a result of his conversation with Polmgren,
the Union decided to engage in informational picketing of the Em-
ployer's premises.
The Union began to picket Peninsula on June 17, carrying signs
containing either of the following legends :
UNFAIR, SUBSTANDARD WAGES.
LOCAL 665, I.B. OFT.
UNFAIR HOURS AND CONDITIONS.
LOCAL 665, I.B. OF T.5
3 At the hearing, the Union moved to dismiss the petition because of , or to postpone
the hearing until disposition of, certain unfair labor practice charges (Case No 20-CC-
373) brought against the Union by the Employer The Union contends that, to proceed
herein would controvert the Board' s well-established policy of not considering matters
pertaining to unfair labor practices in representation proceedings . However, that policy
does not preclude the Board from considering such matters where they are material in
determining whether a question concerning representation exists , which is our sole con-
cern in this case. ( Foothill Electric Corporation , 120 NLRB 1350, 1353 ) The Union's
position is therefore lacking in merit. Hence, we deny the motion.
s Hereinafter referred to as the Association
e On July 11, 1963, pickets appeared at the Employer's premises with a sign reading:
TO THE PUBLIC:
THIS FIRM DOES NOT HAVE
A UNION CONTRACT.
LB T. UNION LOCAL 665.
According to union witnesses , this sign was used on July 11 because Union Agent Starling,
who kept the other signs in his automobile when they were not in use , had not arrived
to pass them out when the pickets went on duty that day.
PENINSULA GENERAL TIRE COMPANY, INC. 1461
On June 24, 1963, a conversation took place between Starling, busi-
ness agent of the Union, and Williams, Employer's general manager
and president, which is the subject of much conflicting testimony. It
is undisputed that Starling initiated the conversation by asking, "When
are we going to get together?" Starling also assigned as a reason for
the picketing that someone had "blabbed" about the Employer's "low
wages and long hours." Starling gave Williams a copy of the Union's
contract with the Association on which he marked the word "Sample"
and suggested that Williams call Breenfleck, Starling's superior, if
Williams had any questions. Breenfleck later called Williams and
asked if there were any changes or if Williams wanted to get to-
gether with him. He also asked if the matter were "status quo" and
Williams responded that it was. Williams countered that Peninsula's
wage rates, coupled with its fringe benefits, were "close" to the Union's
contractual wage structure. On neither this nor any other occasion
did Starling or any other union agent question the Employer as to
the wages, hours, or working conditions at its operation.
The testimony in conflict consists of Williams' version that Starling
expressly asked when they were going to get together on a contract,
said that other employers had been instructed not to do business with
Williams but would be informed as soon as Williams signed a contract
with the Union, and wanted to know when the men were going to join
the Union. Starling, however, denied any request for a contractual
relationship. He testified that he expressly told Williams that he was
not interested in organizing the employees but that the picketing had
been initiated because of the "low wages and long hours." Williams
testified that Starling told him that if Peninsula's employees did not
want to join the Union he would provide him with some who would.
Starling could not remember whether or not he made any such state-
ment. The union contract, according to Starling, was given to Wil-
liams to show union scale and conditions and was marked as a sample
contract so as to avoid the possibility of a misunderstanding that signa-
ture thereof was being requested.
On June 28, the Employer filed this petition. On July 10, the Union
filed with the Board a disclaimer of interest in the employees covered
by the Petition. This asserted disinterest was not communicated to,
any other interested party. The Union again disclaimed at the
hearing.
On this record, we are persuaded that a purpose of the Union's
picketing was to force the Employer to recognize and bargain with
the Union as did the association members. Particularly indicative of
this are the circumstances giving rise to the picketing and the Union's
failure at any time, although its picketing is assertedly to protest sub-
standard wages and working conditions, to inquire into the Employer's
wages and working conditions. Even when Williams maintained that
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peninsula's wage structure, including benefits, bonuses, and incentives,
was close to Union contracts' wages, Starling did not exhibit the slight-
est curiosity as to what disparities might or might not exist.
Our conclusion is that the Union has acted inconsistently with its
disclaimers and that its picketing, now as when it began, is tantamount
to a demand for recognition. Accordingly, we find that a question af-
fecting commerce exists concerning the representation of certain em-
ployees of the Employer within the meaning of Section 9(c) (1) and
Section 2 (6) and (7) of the Act.'
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9 (b)
of the Act :
All tire mounters and driver-salesmen employed at the Em-
ployer's Burlingame, California, place of business, excluding all
mechanics, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN MOCuLLOCH and MEMBER BROWN took no part in the con-
sideration of the above Decision and Direction of Election.
6 Cf. Miratti'8, Inc ., 132 NLRB 699.
Market Basket and Food, Drug & Beverage Warehousemen &
Clerical Employees , Local 595, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case No. TI-CA-5163. November 12, 1963
DECISION AND ORDER
On July 18, 1963, Trial Examiner E. Don Wilson issued his Inter-
mediate Report herein, finding that the Respondent engaged in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case.
144 NLRB No. 145.