Astoria General Tire Co.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 591 (N.L.R.B. 1968)

ASTORIA GENERAL TIRE CO.
General Tire and Rubber Company d/b/a Astoria
General Tire Co. and Local 138, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica. Case 29-CA-9-56-
March 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On November 21, 1967, Trial Examiner Robert
E. Mullin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within, the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, General Tire and
Rubber Company, d/b/a Astoria General Tire Com-
pany, Long Island City, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case
was heard in Brooklyn, New York, on July 20,
170 NLRB No. 78
591
1967, pursuant to a charge, duly filed and served,'
and a complaint issued on May 31, 1967. The com-
plaint alleged that the Respondent engaged in un-
fair labor practices proscribed by Section 8(a)(1)
and (5) of the Act. In its answer, the Respondent
conceded certain facts as to its business operations,
but it denied all allegations that it had committed
any unfair labor practices.
At the conclusion of the hearing, the General
Counsel presented oral argument as to the legal is-
sues in dispute. The other parties waived oral argu-
ment. On September 13, 1967, the General Coun-
sel, and, on September 14, 1967, the Respondent,
submitted briefs on the facts and the law.
Upon the entire record in the case, including the
briefs of counsel, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, with its
principal office and place of business in Akron,
Ohio, maintains a branch office and retail service
outlet in Queens County, State of New York, where
it is engaged in the sale, distribution, and repair of
tires, tubes, batteries, and related products. The
Queens store is the only location involved in the
present matter. During the year preceding the is-
suance of the complaint, a representative period,
the Respondent manufactured, sold, and distributed
from its Akron plant products valued in excess of
$50,000, of which products valued in excess of
$50,000 were shipped from this plant in interstate
commerce directly to States of the United States
other than Ohio.
Upon the foregoing facts, the Respondent con-
cedes, and the Trial Examiner finds, that General
Tire and Rubber Company is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Ex-
aminer finds, that the Union (herein called Local
138) is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent concedes, and the Trial Ex-
aminer finds, that all service shop employees at its
Queens store, exclusive of office clericals, sales per-
sonnel, watchmen, guards, and supervisors, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of the Act.
' The charge was filed on April 17, 1967
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For some time prior to 1967, the employees in
the foregoing unit were represented for the pur-
poses of collective bargaining by Retail Men's
Wear, Sporting Goods and Accessories Employees
Union, Local 721, Automotive Parts and Tire Divi-
sion, Retail, Wholesale and Department Store
Union AFL-CIO (hereinafter called Local 721).
On January 3, 1967, Columbus Stevenson, an em-
ployee, filed a petition requesting that the Board's
Regional Office conduct a decertification election
for the employees in the unit.' On January 30,
1967, such an election was held. A tally of the bal-
lots cast showed that of seven eligible voters, five
votes were cast and all five were against the incum-
bent union. On February 7, 1967, the Regional
Director certified the results of the foregoing elec-
tion.
In February and March 1967, Local 138 began
an organizational campaign among the Respon-
dent's employees at the Queen store. On about
April 7, 1967, Local 138 requested recognition as
the bargaining agent for the employees in the ap-
propriate unit described above. The Respondent
declined to grant such recognition. Thereafter, on
April 13 and until April 17, 1967, Local 138 main-
tained an "on-strike" picket line outside the
Respondent's premises.3 Of some seven individuals
who engaged in this picketing, six were employees
at the Respondent's store and the seventh was a
former employee. The six employees involved in
the picketing represented the entire membership of
the appropriate bargaining unit here involved.4
B. The Organizational Campaign of Local 138 and
its Request for Recognition
At various times in February and March 1967,5
Columbus Stevenson secured authorization cards
from Louis Book, an organizer for Local 138.
Thereafter, Stevenson distributed these among his
coworkers and during the ensuing weeks secured
signed authorizations from all of them.
On or about April 7, Book met with Joseph
DeSimone, general manager for the Queen store,
and John R. Crow, district manager for the Respon-
dent. There is no conflict in the record as to the
substance of the ensuing conversation. According
to DeSimone, Book stated at the outset that Local
138 represented the men in the service shop and
that he had their signed authorization cards.
DeSimone testified that neither he nor Crow asked
to see the cards. The general manager further
2 Case 29-RD-41
3 Oft April 13, 1967, the Respondent filed a charge against Local 138
wherein it alleged . that the picketing constituted a violation of Section
8(b)(7)(B ) of the Act Case 29-CP-74. A few days later, after the Union
abandoned its picketing , the Respondent withdrew the CP charge
' The foregoing findings arebased upon vairous stipulations to which the
parties agreed at the hearing in the present case.
5 All events discussed herein occurred in 1967, unless otherwise
specified
6 Book testified , credibly and without contradiction , that DeSimone told
testified that he and Crow told Book that Local, 138
would have to be approved by the Labor -Board as
the bargaining agent before- the Company would
grant recognition and that in the Company's view,
since there had been an election in the unit
recently, it would not be obligated to bargain until
12 months had elapsed.' DeSimone conceded that
neither he nor Crow expressed any doubts to Book
about the majority standing of Local 138.
DeSimone testified that about a ,week later he was
in Crow's office when the latter had a telephone
conversation with Book, and that the district
manager told Book -that, since an election had been
held within the unit during the preceding 12
months, the Union would have to go to the Labor
Board.
On about April 12, Book telephoned DeSimone
to tell him that if the Company was not prepared to
recognize Local 138 and sign a contract, the Union
would cause a work stoppage. DeSimone reiterated
the position which he had stated earlier and told
the union representative that the matter would have
to be resolved by the Labor Board. The next day,
the Union established a picket line outside the
Respondent's premises.
The picketing was conducted under Book's
direction with all of the employees in the unit par-
ticaipating.' As ' found earlier on April 17, the
Union terminated the` strike and withdrew the
pickets.-
On April 14, Attorney Robert Savelson, on be-
half of Local 138, had a telephone conversation
with Attorney John Daily, counsel for the Respon-
dent, wherein the former renewed the-Union's de-
mand for recognition and bargaining. Counsel for
the Company declined on the ground that since an
election had been conducted within the past year,
the Company was not obligated to recognize or bar-
gain with Local 138 until an entire- year had
elapsed. In a letter to the Respondent dated April
14, the Union renewed its demand for recognition
and bargaining. Local 138 never received a
response to the latter communication.
On April 7, when the Union made its initial
request for recognition, there were six employees in
the appropriate unit. These were Arsenio Acosta,
David Johnson, Antomio Munoz, Jose Sisco Rivera,
Louis ,Rodriquez, and Columbus Stevenson. All, of
them had signed authorization cards. These cards,
all of which bore the date of March 13, or before,
were received in evidence. All of the employees
here involved testified, on both direct and cross-ex-
him at this meeting "No sense in you 're showing me the cards. I know you
got the people You got to go to Akron, Ohio [the corporate headquar-
ters) because you can't be here for one year "
7 There were six employees in the unit. All except one of this group car-
ried placards at some point during each business day while the strike was in
progress The only exception was Louis Rodriquez Because of a leg injury,
the latter did not actually walk on the picket line, but throughout the work
stoppage he remained in the immediate vicinity of his coworkers who were
carrying their strike placards
ASTORIA GENERAL TIRE CO. 593
amination, as to the circumstances in which their
signatures were secured.
Stevenson, the one most active in securing em-
ployee endorsement of Local 138, testified that he
signed his card on March 13 and that on about the
same date he secured the other signed cards from
his fellow workers.' Acosta testified that he signed
a card which Stevenson had given him and, in ex-
planation of why he had done so, stated, "I sign it
to bring a new union." Johnson, an employee who
could neither read nor write, testified that he had
his wife sign an authorization for him, and that he
had her do this because he wanted "To get a union,
better benefits,' more money." Munoz, who ex-
ecuted his own card and returned it to Stevenson,
testified that he signed an authorization for Local
138 because "We wanted to change the union,
because actually we didn't see any benefits with the
other union." Rivera, who signed his card in
Stevenson's presence and returned it to him,
testified that he had signed an authorization to get
"this Union [Local 1,38] and ... more benefits ...
Blue Cross, things like that." Rodriquez, who af-
fixed his own signature on a card, with Stevenson as
a witness, echoed the same objective with his
testimony that he had aligned himself with Local
138 "To get more benefits."
On the basis of the foregoing facts, it is apparent,
and I find, that on April 7, 1967, when the Union
made its demand for recognition and bargaining,
Local 138 had secured authorization cards from all
of the employees then in the unit and, therefore,
had the statutory prerequisite of a majority.
The Respondent made no effort to prove that it
ever had any doubts as to the Union's majority sup-
port within the unit. General Manager DeSimone
conceded that the issue was never raised on behalf
of the Respondent in any of the conversations he
had with Business Agent Book. He also testified
that during the period when the Union took strike
action to enforce its demand for recognition he saw
all of the employees in the unit on the picket line.
In fact, the Respondent denied recognition to Local
138, solely because Local 721 had been decertified
in an election held in January, and the Respondent
felt that until 12 months had elapsed it was not
obligated to bargain with either Local 721 or any
other union.9
On the basis of the record herein and the findings
of fact set forth above, I conclude and find that on
April 7, 1967, Local 138 had an uncoerced majori-
ty within the appropriate unit, that neither then,
nor later, did the Respondent express any doubt as
to the Union's majority standing among the em-
ployees in question, and that the Respondent's sole
reason for refusing to bargain was that the decertifi-
cation election had occurred within the preceding
12 months.
C. Contentions of the Parties; Findings and
Conclusions with Respect Thereto
The General Counsel contends that the results of
the decertification election in January 1967 did not
guarantee the Respondent that it would have a 12-
month period of freedom from all unions; that, in
fact, another union, such as Local 138, was free to
establish its majority status at the time it did, and,
having done so, the Respondent was obligated to
recognize and bargain with it. This is denied by the
Respondent, according to whom it had a good-faith
doubt that any union represented a majority of its
employees and that, in any event, subsequent to the
decertification election it was not compelled for at
least a year to recognize any bargaining agent.
The principal cases on which the General Coun-
sel relies are Rocky Mountain Phosphates, Inc., 138
NLRB 292, and Conren, Inc., d/b/a Great Scot Su-
permarket, 156 NLRB 592, enfd., 368 F.2d 173
(C.A. 7), cert. denied, 386 U.S. 974. In Conren, a
decertification election resulted in the defeat of the
incumbent union with a .ono union" vote. Only a
few months thereafter a majority of the employees
signed authorization cards in the old union and the
latter requested recognition. The Board and the
court of appeals held that the vote in the decertifi-
cation proceeding did not preclude the rejected
union from demanding recognition on the basis of
authorization cards secured during the ensuing 12-
month period. In Rocky Mountain Phosphates, Inc.,
138 NLRB 292, an incumbent union became
defunct during the certification year. Thereafter,
and before the expiration of the certification year, a
new union secured signed cards from a majority
within the unit. The Board held that under Section
8(a)(5) the employer was obliged to bargain with
the new union. In so doing, the Board stated (138
NLRB at 296):
... this is not a case where an employer
must determine at his "peril" where his duty to
bargain lies, for the facts here clearly show,
and our colleagues concede, that -the Respon-
dent was fully aware that the Independent had
become defunct and that Local 375 had as-
One card, that of Louis Rodriquez, was dated February 24.
On cross-examination, Mr DeSimone, who testified with complete can-
dor throughout his appearance on the stand, was asked the following
questions and gave the answers which appear below.
Q You heard, did you not, and you testified that Mr. Crow told Mr
Book that he should go to the Labor Board if he wanted to represent
the employees because there had been an election in the past 12
months, isn't that so9
A. Right
0 lam asking you simply this: Did you ever hear from Mr. Crow or
anybody else in the Company any other reason advanced for not
recognizing and bargaining with Local 138 in February, March, or
April 1967?
A. Other than that question'
Q. Other than the 12 month problem 9
A No.
Q. So that was the reason, so far as you know . why the company
refused to bargain with the Union''
A. That's correct.
350-999 0 - 71 - 39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumed the status of majority representative. In
the circumstances of this case, to say that
Respondent may lawfully resist the bargaining
demands of Local 375 despite its lack of a
good-faith doubt as to majority status, simply
because the employees decided to abandon the
Independent during the certification year, is
to penalize employees for exercising rights
under Section 7 ....
The Respondent contends that it had no obliga-
tion to recognize or bargain with Local 138 within
the year following the RD election unless the
General Counsel can prove that the Employer's
conduct displayed a rejection of the collective-bar-
gaining principle or a desire to dissipate the Union's
majority status. This argument finds support in
Strydel, Incorporated, 156 NLRB 1185. There, sub-
sequent to a series of elections which concluded
with a runoff in which the Machinists and the
Teamsters participated, the two named organiza-
tions each received 50 percent of the vote, and as a
result, neither had a majority. Shortly thereafter,
district 50 secured cards from a majority of the em-
ployees in the unit and requested recognition. The
employer denied the request on vaious grounds, but
primarily because a Board election had been held
within less than 12 months prior to the demand.
The Board held that the General Counsel had failed
to prove an alleged violation of Section 8(a)(5). In
so doing, the Board stated "We find no basis in the
record for imputing to Respondent a rejection of
the collective-bargaining principle, or an effort to
undermine the Union by gaining time in which to
dissipate the Union's claimed majority." (156
NLRB at 1187.)
Strydel dealt with a problem somewhat similar to
the one at hand, for concededly the General Coun-
sel here was unable to support the allegation of a
refusal to bargain with evidence of any independent
violations of Section 8(a)(1). On the other hand,
on the facts found herein, the present case is distin-
guishable from Strydel, for in the latter there was a
rival union on the scene when the employer denied
recognition to district 50.10 Here, of course, there
was no rival to Local 138.
In the instant case , when Local 138 demanded
recognition , it was not the union which the em-
ployees had rejected in the RD election 2 months
earlier , nor did the Respondent offer any evidence
that Local 721 or any other rival was soliciting the
support of the employees. In its answer and in its
brief, the Respondent contends that it had a good-
faith doubt that any union represented a majority of
its employees . General Manager DeSimone, how-
ever, did not express any such doubt. It was unde-
nied that , at the time Local 138 demanded recogni-
tion , Mr. DeSimone told Business Agent Book, "No
sense in your showing me the cards, I know you got
tie people . . ." and that thereafter the general
manager witnessed the entire complement of the
unit participate in a strike to secure recognition. On
the facts found herein, it is my conclusion that
there could be, and was, no doubt on the part of
Respondent as to the fact that Local 138
represented a majority within the unit.
In substance, other agruments advanced in the
Respondent's brief are rooted in the assumption
that after an RD election, an employer is entitled to
what has been characterized as a 12-month "period
of repose from the bargaining demands of unions."
Conren, 156 NLRB at 509. Since this construction
of the Act has already been rejected by the Board,
it must likewise be, and is, rejected by me. Con-
sequently, the Respondent, in relying on a legally
unacceptable reason for rejecting the bargaining
request of Local 138, when the latter had demon-
strated an uncoerced majority in an appropriate
unit, must be held to have violated Section 8(a)(5)
and (1) of the Act. I so find. Rocky Mountain
Phosphates, Inc., 138 NLRB 292.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and
the Union is a labor organization, all within the
meaning of the Act.
2. All service shop employees of the Respon-
dent, employed at its Queens store, exclusive of of-
fice clericals, sales personnel, watchmen, guards,
and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of the Act.
3. At all times since April 7, 1967, the Union has
been the exclusive representative, for the purpose
of collective bargaining within the meaning of Sec-
tion 9(a) of the Act, of all the employees in the
aforesaid appropriate unit.
4. By failing and refusing to bargain in good faith
with the Union as the representative of the em-
ployees in the aforesaid appropriate unit, the
Respondent has engaged in, and is engaging in, un-
fair labor practices within the meaning of Section
8(a)(5) and (1) 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.
IV. THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, I will recommend
that the Respondent be ordered to cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
10 It appears from the Trial Examiner's Decision in Strvdel that when Dis-
trict 50 made its demand on the employer, the Teamsters, one of the unions
which had failed to secure a majority in the run-off election, had resumed
its organizational activity among the employees Indeed, at the unfair labor
practice hearing , the Teamsters sought , without success , to intervene as a
party and establish a claim that at all times material it represented a majori-
ty of the employees in the unit described in the complaint ( I56 NLRB at
1 188, fn 2 )
ASTORIA GENERAL TIRE CO. 595
Upon the foregoing findings and conclusions and
the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
Pursuant to the Recommendations of a Trial Ex-
aminer of the National Labor Relations Board and
in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify
NOTICE TO ALL EMPLOYEES
employees that:
WE WILL, upon request, bargain with Local
138, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the ex-
clusive representative of all the employees in
the bargaining unit described below, with
respect to rates of pay, wages, hours, and other
conditions of employment, and, if an un-
derstanding is reached, embody such un-
derstanding in a signed agreement. The' bar-
gaining unit is:
All service shop employees at our Queens'
store, exclusive of office clericals, sales
personnel, watchmen, guards and super-
visors.
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form, join, or assist the above-
named, or any other, labor orgnization, to' bar-
gain collectively through representatives of
their own choosing, to engage in 'other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
RECOMMENDED ORDER
General Tire & Rubber Company, d/b/a Astoria
General Tire Co., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning wages, hours, and other terms and con-
ditions of employment with Local 138. affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of all employees
in the following appropriate unit: All service shop
employees at the Respondent's Queens store, exclu-
sive of office clericals, sales personnel, watchmen,
guards, and supervisors.
(b) In any like or related manner , interfering
with, restraining, or coercing employees in the ex-
ercise of their rights graranteed under Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of all employees in the appropriate unit, and, if an
understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its premises in Queens County, in the
City and State of New York, copies of the attached
notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Re-
gion 29, after being duly signed by Respondent's
authorized representative, shall be posted by it im-
mediately'upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
our
APPENDIX
GENERAL TIRE AND
RUBBER COMPANY, D/B/A
ASTORIA GENERAL TIRE
Co.
(Employer)
any other material. Dated By
(c) Notify said Regional Director, in writing,
within, 20 days from the receipt of this Decision,,
what steps have been taken to comply herewith.12
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting -and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 16 Court Street, 4th Floor, Brooklyn, New
York 11201, Telephone 596-5386.