Suffolk Mack, Inc., 433 (1969)

SUFFOLK MACK, INC.

Suffolk Mack, Inc. and Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local 259, International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America (Suffolk Mack, Inc.) and Local 553,

International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America.

Cases 29-CA-1605, 29-CA-1633, and 29-CB-61'7

Jane 16, 1970 DECISION AND ORDER

By Members MCCULLOCH, BROWN , AND JENKINS On November 25, 1969, Trial Examiner John F.

Funke issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed.

Thereafter, the General Counsel, the Respondent Employer, and the Respondent Union filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel filed a reply 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 proceeding 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 ' As the record and briefs adequately present the issues and the positions of the parties, Respondent Employer's request for oral argument is hereby denied In addition , Respondent Employer's alternative request to reopen the record and receive further evidence before a member of the Board, or other Board agent or agency is hereby denied II The Trial Examiner inadvertently referred to Local 553, where it is clear that he meant Local 259, in the first sentence of the eighth paragraph in section 111,C, in the first and second sentences of the ninth paragraph in section III ,C, and in the first sentence of the second paragraph in section IV of his Decision, and in section A, 2(f) and section B,2 (b) of his Recommended Order In addition, the Trial Examiner, in the first sentence of the second paragraph in section IV of his Decision and in section A,1 (c) of his Recommended Order, referred to the date of the contract that Respondent Employer signed with Respondent Union as April 17, 1969, when the correct date is February 17, 1969 The Trial Examiner, in his first Conclusion of Law, also incorrectly referred to the date that Respondent Employer recognized Respondent Union as being February 5, 1967, when the correct 433

Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding,' and hereby adopts the findings 2 conclusions,' and recommendations of the Trial Examiner with the following addition We agree with the Trial Examiner that Respondent Employer violated Section 8(a)(5) of the Act when, as a successor to Liquiservice, it refused to bargain with Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.4 The record shows that for a period of 15 years the truck mechanics have been bargained for separately. A 1966 supplemental agreement applicable only to the truck mechanics was made a part of an agreement that Local 553 and Liquiservice had covering the petroleum truckdrivers. We construe this supplemental agreement as accomplishing nothing more than providing possibly for joint bargaining thereafter. We therefore conclude that the truck mechanics constituted a separate appropriate unit and that in the circumstances of the case Respondent Employer became a successor in interest to their former employer.

Furthermore, it is conceded by Respondent Employer that, at the time of its acquisition of Liquiservice, it knew that the truck mechanics were represented by Local 553, and it is not disputed that it knew that all of the truck mechanics were members of Local 553. Shortly after the acquisition, Local 553 demanded that Respondent Employer bargain with it as the representative of these mechanics. In addition, there is no question that, in the course of events which followed this demand, the mechanics expressed a desire to retain membership in Local 553 because of pension benefits which had accrued to them over the years; that Respondent Employer unequivocally informed them that it would not have anything to do with Local 553; and that both Respondent Employer and Respondent Union coerced the mechanics into signing authorization cards on behalf of Respondent Union by threats that otherwise they would be replaced, thus effectively destroying Local 553's date is February 4, 1969 The Trial Examiner, in section II1,B of his Decision, stated that Peter Gillespie testified that he had engaged in negotiations with Frank Clarke for the purchase of the 1575 Patchogue Road property from sometime in June 1968, when the record shows that the discussions did not begin until September 1968 Finally, the Trial Examiner inadvertently omitted the word 'not' after the word 'complaint ' in the last sentence of his Recommended Order We hereby correct these errors ' The Trial Examiner inadvertently failed to make a formal conclusion of law that Respondent Employer warned its employees that it would not recognize and bargain with Local 553, and warned and directed them to refrain from remaining members of Local 553 in violation of Section 8(a)(1) of the Act The Trial Examiner also inadvertently failed to make a formal conclusion of law that Respondent Union threatened to cause the discharge of employees if they did not join Respondent Union in violation of Section 8(b)(I)(A) and (2) of the Act We hereby correct these omissions and have modified the Recommended Order accordingly ' Hereinafter called Local 553

183 NLRB No. 55 status as majority representative of the mechanics.

In light of the foregoing, we find that, even in the absence of an 8(a)(5) violation, a bargaining order would nevertheless be required to remedy the 8(a)(1) violations committed by Respondent Employer.

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 as modified below, and hereby orders that the Respondent, Suffolk Mack, Inc., Port Jefferson Station, New York, its officers, agents, successors, and assigns, and the Respondent, Local 259, International Union,

United Automobile, Aerospace and Agricultural Implement Workers of America, New York City and Long Island, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified:

1. Add the following as paragraphs A, 1 (e) and (f), and renumber paragraph A, 1 (e) as paragraph Al-1(0.'(e) arning its employees that it would not recognize and bargain with Local 553.

   '(f) Warning and directing its employees to refrain from remaining members of Local 553.' 2. Add the following as paragraph B, 1 (d) and renumber paragraph B, 1 (d) as paragraph B, I (e):

   '(d) Threatening to cause the discharge of employees if they did not join Local 259.' 3. Add the following after the last paragraph in Appendix A:

   WE WILL NOT warn our employees that we would not recognize and bargain with Local 553.

   WE WILL NOT warn and direct our employees to refrain from remaining members of Local 553.

4. Add the following after the last paragraph in Appendix B:

   WE WILL NOT threaten to cause the discharge of employees if they do not join Local 259.

   MEMBER JENKINS, concurring in part, dissenting in part:

   I concur in the findings herein in that Respondent Employer violated Section 8(a)(1), (2), and (3) of the Act and that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. I do not agree with the majority's conclusion that the Respondent Employer was a successor to Liquiservice and as such violated Section 8(a)(5) in its refusal to bargain with the Charging Party.

   Liquiservice, prior to Gillespie's acquisition of its tools, equipment, and assets, was engaged in the sale and distribution of petroleum products. In connection with such enterprise it maintained its own repair shop for the servicing of its delivery trucks and those of its petroleum customers. Prior to the final acquisition of its properties by Gillespie,

   Liquiservice notified all of its customers that it was discontinuing all operations. While it is true that Gillespie, through one of his solely owned enterprises, shortly after acquisition of Liquiservice's physical assets reopened the repair shop, such shop became the part of a totally different enterprise.

   Gillespie is engaged in the sale and servicing of Mack trucks through another one of his solely owned enterprises known as Minneola Mack. The reopened repair shop was operated for the purpose of servicing and repairing trucks for customers of Minneola Mack. Under these circumstances, I cannot agree that there existed that degree of continuity in the employing enterprise, Suffolk Mack, that would establish a successor-employer relationship.5

   I would dismiss the 8(a)(5) allegation of the complaint.

   ' Travelodge Corporation , 182 NLRB 370, Thomas Cadillac, Inc, 170

   NLRB 884 (for reasons noted in my concurring opinion ), Chemrock Corporation , 151 NLRB 1074, 1085 (for reasons noted in my dissent) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   JOHN F. FUNKE, Trial Examiner: Upon a charge in Case 29-CA-1605 filed March 17, 1969, and a charge and an amended charge in Case 29-CA-1633 filed April 16 and June 16, 1969, by Local 553, International Brotherhood of Teamsters,

   Chauffeurs, Warehousemen and Helpers of America, herein Local 553, against...