Hess Service Station

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 423 (N.L.R.B. 1967)

HESS SERVICE STATION
Luigi Ferraioli d/b/a/ Hess Service Station
and New York Local Union 10, International
Brotherhood of Production , Maintenance
and Operating Employees and Local 917,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Party to the Contract.
Local 917, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen,
and Helpers of America and New York
Local Union 10 , International Brotherhood
of Production , Maintenance and Operating
Employees and Luigi Ferraioli d/b/a/ Hess
Service Station , Party to the Contract. Cases
29-CA-584 and 29-CB-193.
June 14,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 4, 1967, Trial Examiner Sydney S.
Asher, Jr., issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety. Thereafter, the General
Counsel 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
National 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 recommendations 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
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner : On May 6, 1966,
New York Local Union 10, International Brotherhood
of Production, Maintenance and Operating Employees,
New York, New York, herein called Local 10, filed
'The General Counsel and the Respondents stipulated that
Respondent Employer denies the allegations of the consolidated
423
charges in Case 29-CA-584 against Luigi Ferraioli
d/b/a Hess Service Station, Brooklyn, New York,
herein called Respondent Employer. On the same date,
Local 10 filed charges in Case 29-CB-193 against
Local 917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, New
York, New York, herein called Respondent Union. On
September 13, 1966, Local 10 filed amended charges
against each Respondent. On September 21, 1966, the
Regional Director consolidated the cases and issued a
consolidated complaint alleging that: on or about
February 23, 1965, the Respondents entered into a
collective-bargaining contract covering the employees of
Respondent Employer which contained provisions
requiring membership in Respondent Union as a condition
of employment; until on or about April 29, 1966, the
Respondents failed to give effect to the contract; on or
about April 28, 1966, a majority of these employees
selected Local 10 as their bargaining agent; on or about
April 28, 1966, Local 10 requested Respondent Employer
to recognize it as exclusive collective-bargaining
representative of his employees but he refused to do so;
and on or about April 28 and 29, 1966, Respondent
Employer interrogated his employees concerning their
union activities and on the same day distributed
applications for membership in Respondent Union and
required his employees to sign such applications pursuant
to the agreement referred to above, and he did this
notwithstanding the fact that the Respondents had failed
to give effect to their contract and in order to prevent his
employees from supporting Local 10. It is alleged that the
conduct of Respondent Employer violated Section 8(a)(1),
(2), and (3) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.), herein called the
Act, and the conduct of Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act. Respondent Union
filed an answer admitting that it executed a contract with
Respondent Employer on February 23, 1965, admitting
that on April 28 and 29 Respondent Employer distributed
to his employees applications for membership in
Respondent Union and required his employees to sign
them, but denying the commission of any unfair labor
practice. Respondent Employer filed no formal answer.'
Upon due notice, a consolidated hearing was held before
me on November 21, 1966, at Brooklyn, New York. All
parties were afforded an opportunity to be represented
and to participate fully in the hearing. No witnesses were
called. The General Counsel and the Respondents entered
into a stipulation. Local 10 neither entered into the
stipulation nor objected thereto. After the close of the
hearing, the General Counsel and Respondent Union filed
briefs. These have been duly considered.
Upon the entire record in these cases, I make the
following:
FINDINGS OF FACT
1. At all material times Respondent Employer, doing
business as Hess Service Station, has operated a gasoline
service station in Brooklyn, New York.
2. During the year prior to the hearing Respondent
Employer derived gross annual revenue from his gasoline
service station in excess of $500,000. During the same
period of time he caused gasoline, oil, and other materials
complaint , except as otherwise contained in the stipulation
described below.
165 NLRB No. 54
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued at more than $50,000 to be delivered to his place of
business directly from sources outside the State of New
York.
3. Respondent Union and Local 10 each is, and at all
material times has been, a labor organization as defined by
the Act.
4. On February 23, 1965, the Respondents entered into
a collective-bargaining contract covering Respondent
Employer's employees. This contract was to be effective
from February 23, 1965, until February 22, 1967, and
provided, among other things:
the employer agrees to employ at his gasoline
and/or service station or parking lot ... only such
employees as are members of the Union in good
standing during the life of this agreement. The Union
shall be the sole judge of the standing of its members.
No employee not a member of the Union and no new
employee shall be required to become a member of
the Union until 31 days after the execution of this
agreement or the date of his employment, whichever
is later.
5. At the time this contract was entered into,
Respondent Employer had three employees, all of whom
were members of Respondent Union. One of these,
Alfredo Ferraioli, went into the service of the United
States Army during the week ending September 24, 1965,
and thereafter returned to his employment during the
week ending August 5, 1966. Another of the original
employees, Vincent Gioeni, died during the week ending
April 29, 1966. The third such employee, Louis Cavaliere,
terminated his employment with Respondent Employer
during the week ending April 30,1965.
6. From February 23, 1965, until on or about April 29,
1966, the Respondents "failed to give effect to and failed
to maintain and enforce and failed in any other manner to
notify Respondent Employer's employees of the existence
of the collective bargaining agreement, other than the
original three employees mentioned above." During that
period "grievances were not filed by or on behalf of the
employees" of Respondent Employer. These
employees-except the original three employees named
above-"were unaware of the existence" of the contract
and did not know that Respondent Union was their
collective-bargaining representative.
7. On or about April 26, 1966, Local 10 commenced an
organizational campaign among the employees of
Respondent Employer.
8. On or about April 28, 1966, a majority of these
employees designated and selected Local 10 as their
representative for the purposes of collective bargaining
with Respondent Employer.
9. On the same date Local 10 requested Respondent
Employer to recognize it as the exclusive collective-
bargaining representative of Respondent Employer's
employees and to bargain with it as such, but Respondent
Employer refused to do so, and has continued to refuse to
do so, on the ground that he had an existing collective-
bargaining agreement with Respondent Union.
10. On April 28, 1966, Local 10 filed a petition with the
Board in Case 29-RC-459, seeking certification as the
i Contrast Local Lodge No. 1424, International Association of
Machinists, AFL-CIO [Bryan Manufacturing Company] v
N.L R.B., 362 U.S. 411.
8 The General Counsel cites N.LR B. v. Hotel, Motel and Club
Employees' Union, Local 568, AFL-CIO (Philadephia Sheraton
Corp ), 320 F 2d 254 (C.A. 3). That case is clearly distinguishable
exclusive collective-bargaining representative of
Respondent Employer's employees. This petition is still
pending.
11. On or about April28 and 29, 1966, Respondent
Employer, at his place of business, interrogated his
employees concerning their membership in, activities on
behalf of, and sympathy for. Local 10.
12. On or about April28 and 29, 1966, Respondent
Employer, during working time and on his premises,
distributed applications for membership in Respondent
Union and required his employees to sign these
applications, pursuant to the collective-bargaining
agreement referred to above. He did so "notwithstanding
that [the Respondents] had failed to give effect to and had
failed to maintain and enforce their collective bargaining
agreement" as set forth above.
13. Since May 5, 1966, Respondent Union "has
serviced the collective bargaining agreement" referred to
above. This contract "has been performed to date."
Discussion
1. Legality of the contract
The General Counsel does not attack the legality of the
contract at its inception. The contract covers an
appropriate unit, is to be effective for a reasonable period
of time, and contains a valid 31-day union-security clause.
Moreover, at the time the contract was signed, the
contracting union represented an uncoerced majority of
the employees in the unit.2 It is accordingly found that the
contract was valid at its inception.
2. Respondent Union's conduct
Respondent Union has remained in existence at all
times since February 23, 1965, when the contract was
executed. There is neither allegation nor proof that it
became defunct. The record reveals no expressed or
implied cancellation or revocation of the contract by either
Respondent. Nor does it disclose any deliberate deceit or
concealment practiced on the employees by either
Respondent.3 Moreover, it does not show that Respondent
Union distributed membership applications to Respondent
Employer's employees. There is no proof that any
representative of Respondent Union was present on
April 28 and 29, 1966, when Respondent Employer
distributed such applications to his employees. The only
activity of Respondent Union shown is that, since May 5,
1966, it "serviced" the contract; that is to say, maintained
and enforced it.
It has been found above that the contract was valid in all
respects at its inception and that the parties never
affirmatively repudiated it. The General Counsel's theory
of the alleged violations by Respondent Union seems to be
that the parties allowed the contract to become
"moribund" and that thereafter Respondent Union, having
meanwhile lost its numerical majority, somehow lost its
status as statutory representative of the employees, and
therefore was forbidden by Section 8(b)(1)(A) and (2) of the
Act to revive the contract at a time when a rival union had
on its facts. There the union deliberately withheld data requested
by employees, and then caused the discharge of the employees for
nonpayment of dues. Here, on the contrary, no employee sought
any information of any kind from either Respondent, and
Respondent Union took no action detrimental to any employee's
job tenure.
HESS SERVICE STATION 425
made a claim to represent the employees." I cannot agree.
Given a contract of reasonable duration, it is well settled
that, in the interest of industrial stability. the contracting
union retains its position as exclusive bargaining agent
(despite loss of numerical majority) for the duration of the
contract.' Accordingly, I find that Respondent Union's
conduct herein did not constitute a violation of the Act.6
It is possible, perhaps, to argue that Respondent Union
may have been derelict in its statutory duty in failing to
enforce the contract vigorously and in "sleeping on its
rights," thus depriving the employees of proper and
effective representation. But the complaint does not so
allege, and this issue has not been presented to me for
decision. I accordingly decline to rule thereon. However,
in passing it should be noted that no employee-even
among the original three -filed any grievance or otherwise
sought Respondent Union's aid during the period from
February 23, 1965, to April 29, 1966.
3. Respondent Employer's conduct
The complaint alleges three types of conduct by
Respondent Employer. The first is his refusal on or about
April 28, 1966, to recognize Local 10 on its demand that he
do so. He based this refusal on the ground that he had an
existing collective-bargaining agreement with Respondent
Union. However, the complaint does not allege any
violation of Section 8(a)(5) of the Act. Therefore the refusal
to recognize Local 10 need not be further discussed. I
The second type of conduct of Respondent Employer
mentioned in the complaint is his distribution to his
employees on April 28 and 29, 1966, of applications for
membership in Respondent Union and his requirement
that the employees sign them. At oral argument, the
General Counsel contended that "the employees in the
station were totally unaware of the fact. that Respondent
Union was their bargaining representative]. To the best of
their knowledge [Respondent Employer] didn't have a
labor agreement.... Knowledge . should be an
important point in this case ... knowledge is an aspect in
this case." Although conceding that the original three
employees had the requisite knowledge, the General
Counsel, pointing to the high labor turnover in this
particular industry, indicated that he considered it the
duty of Respondent Employer to enlighten new employees
about the representation situation. I believe this
contention misconstrues the issue. So far as I have been
able to ascertain, knowledge of the employees and labor
turnover have never been considered factors
determinative of contract bar.
In his brief, the General Counsel takes the basic
position that, having let the contract remain unused, the
parties violated the Act by "reviving" it when they did
"with the sole purpose in mind of preventing Local 10
from obtaining recognition." Once again, the argument
misses the mark. Section 8(a)(3) of the Act would normally
be violated when an employer compels his employees, as a
condition of employment, to join a union . But Congress
provided for an exception: a valid 31-day union-security
clause negotiated with a majority union, as was done here.
The issue therefore is whether the inactivity of the
contracting parties caused the otherwise valid union-
security clause to atrophy, so that it no longer fulfills the
requirements of the proviso to Section 8(a)(3). I think not.8
As I view the matter, the contract retained its full vitality
and vigor. It still had almost 10 months to run; therefore
the contract constituted a bar and the time was not ripe for
a change of bargaining representative. Under these
circumstances--especially the absence of showing that
any employee had not already been accorded the
statutory 31-day grace period-Respondent Employer's
enforcement of the valid union-security clause was wholly
benign .9
The third type of conduct of Respondent Employer
mentioned in the complaint is that on or about April 28 or
29, 1966, he interrogated his employees concerning their
membership in, activities on behalf of. and sympathy for,
Local 10. It will be assumed, without deciding, that by
such conduct Respondent Employer violated Section
8(a)(1) of the Act. Considering the context in which this
occurred it was, at most, a trivial infraction. Standing
alone and isolated as it does, I am convinced that such a
venial violation does not require or warrant a remedial
order.
Upon the basis of the above findings of fact, and upon
the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
1. Luigi Ferraioli d/b/a/ Hess Service Station is, and at
all material times has been, an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. New York Local Union 10, International Brotherhood
of Production, Maintenance and Operating Employees,
and Local 917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America are,
4 The General Counsel cites several cases to support this
contention , all of which are distinguishable on their facts In
Appalachian Shale Products Co., 121 NLRB 1160, the Board held
that , in order to bar an election , a contract must contain
substantive terms and be in writing and signed . The contract in
issue in the instant case meets these requirements In Raymond's
Inc , 161 NLRB 838, the parties orally substantially altered the
terms of the written contract , there is no showing in the instant
case of mutually agreed - upon oral changes In Eli M Goldberg, 28
NYSLRB 460 , the contract was prematurely extended , no such
action appears here And in Carlson Furniture Industries, Inc.,
153 NLRB 162 , the union explicitly withdrew its claim to
represent the employees and the parties by mutual consent
abrogated the existing contract , there was no similar disclaimer or
mutual abrogation here
S N L R. B v. Marcus Trucking Company, Inc., 286 F 2d 583,
592-593 (C.A. 2)
6 In so concluding , I have not reached Respondent Union's
defense based on the 6- months statute of limitations contained in
Section 10(b) of the Act and the decision in Local 1424, IAM
[Bryan Manufacturing Company] v N.L.R B., supra. In view of
my disposition of the charges against Respondent Union, I deem it
unnecessary to rule upon this particular defense
' In this connection it should be noted in passing that, had
Respondent Employer recognized Local 10 at that time, he might
well have violated Section 8(a)(1), (2 ), and (3) of the Act See
N L R B v. Marcus Trucking Company, Inc , supra. But that issue
need not be determined
8 The vital difference between outright abandonment of a
contract , or its voluntary relinquishment , on the one hand, and
mere neglect or failure to police its terms on the other hand, is
illustrated in N L R.B v Teamsters , Chauffeurs, Warehousemen
and Helpers, Local 901 (Valencia Baxt Express, Inc), 314 F.2d
792, 795 (C. A. 1).
" Compare Retail Clerks International Association, AFL-CIO,
Locals 698 and 298 (Skorman's Miracle Mart), 160 NLRB 709.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at all material times have been, labor organizations
within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a fair
preponderance of the evidence that Respondent Union ► s
engaging in or has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) or (2) of the Act.
4. The General Counsel has failed to establish by a fair
preponderance of the evidence that Respondent Employer
is engaging in or has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (2 ), or (3) of the Act,
of sufficient gravity to warrant a remedial order.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and on the entire record in these cases,
I recommend that the consolidated complaint herein be
dismissed in its entirety.