The Birdsall-Stockdale Motor Co.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.1o [Text of Direction of Election omitted from publication in this volume.] MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Decision and Direction of Election. 10 Kays-Newport contends that the part-time shoe salesman should be excluded from the unit This employee works each Saturday and occasionally on other days during the week , performing duties similar to those of the other shoe salesmen . We find that he serves as a regular part-time employee, and that lie is entitled to participate in the election directed herein H. E. Butt Grocery Company, 93 NLRB No. 88 , Harms Hosiery Co , Inc., 91 NLRB 330. THE BIRDSALL-STOCKDALE MOTOR COMPANY and INTERN ATiON AL AS- SOCIATION OF MACHINISTS , LODGE No. 750. Case No. 30-CA-113. May 1 7, 1951 Decision and Order On February 21, 1951, Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 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 [Chairman Herzog and Members Murdock and Styles]. The Board has considered the stipulation entered into by the parties, the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions : 1 1. The Trial Examiner found that the Respondent is engaged in commerce within the meaning of the Act.' The Respondent has excepted to this finding and contends that it is not so engaged. The record shows, and the Respondent admits, that it has dealer agreements with General Motors Corporation, Pontiac Motor 'We find, contrary to the contention of the Respondent , that the complaint alleged facts which support a finding that the Respondent is engaged in commerce within the meaning of the Act Accordingly, we hereby affirm the Trial Examiner' s dismissal of the Respondent 's motion to dismiss the complaint which was based on this ground. 'The Trial Examiner , in the Intermediate Report, sets forth in detail the pertinent commerce facts relating to the Respondent's business 94 NLRB No 117. THE BIRDSALL-STOCKDALE MOTOR COMPANY 581 Division, and Packard Motor Car Company. Respondent contends that these agreements are not "franchises" but are merely "simple contracts'" between the Respondent and the manufacturers. Respond- ent further contends that under these agreements it does not acquire title to any automobile, shipped in commerce by other parties, until the vehicle reaches Colorado Springs, and that the Respondent is there- fore not engaged in commerce within the meaning of the Act. How- ever, the Board has recently held specifically that what is controlling in a case of this type is the fact that, by virtue of its dealer agreements, the respondent is one of a limited number of dealers functioning as an essential, integral part of a Nation-wide system (in this case two systems) for the manufacture and distribution of automobiles.3 Upon the entire record, we find that the Respondent is engaged in commerce within the meaning of the Act, and also that it will effectuate the policies of the Act to assert jurisdiction over the Respondent. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Birdsall- Stockdale Motor Company, Colorado Springs, Colorado, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Associa- tion of Machinists, Lodge No. 750, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) In any manner interfering with the efforts of International Association of Machinists, Lodge No. 750, to negotiate for or represent the employees in the aforesaid unit as their exclusive bargaining a gent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Asso- ciation of Machinists, Lodge No. 750, as the exclusive representative of the employees in the aforesaid unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post in conspicuous places at its plant in Colorado Springs, Colorado, including all places where notices to employees are custom- arily posted, copies of the notice attached to the Intermediate Report 8 Conover Motor Company, 93 NLRB 867; see also Harbor Chevrolet Company, 93 NLRB 1326; Baxter Bros, 91 NLRB 1480. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an Appendix.' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for at least sixty (60) con- secutive days thereafter. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify'the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Intermediate Report and Recommended Order Mrs. Margaret L. Fassig, for the General Counsel. Mr. Thomas M. Burgess, of Colorado Springs, Colo, for the Respondent. Mr. Ernest M. Gibson, of Kansas City, Mo., for the Union. STATEMENT OF THE CASE This complaint is based upon a charge duly filed on June 7, 1950, by Inter- national Association of Machinists, Lodge No. 750, Ind., herein called the Union, against The Birdsall-Stockdale Motor Company, of Colorado Springs, Colorado, herein called the Respondent. The complaint, issued on July 13, 1950, by the General Counsel of the National Labor Relations Board; by the Regional Director of the-Seventeenth Region (Kansas City, Missouri), alleges that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copy of the charge was duly served on the Respondent. By stipulation entered November 7, 1950, all parties waived formal. hearing, reserving the right, upon issuance of an Intermediate Report, to argue orally before the Board, if permitted to do so, to file briefs, and to litigate the issue of jurisdiction in the United States Court of Appeals. In lieu of presentation of oral testimony and documentary evidence before a Trial Examiner, the parties further stipulated that the record should consist of the formal pleadings, certain documents in the representation proceeding previously held before the Board,' a stipulated statement of facts, and certified copies of dealer's contracts between the Re- spondent and Pontiac Motor Division, General Motors Corporation, and Packard Motor Car Company. Specifically, the complaint alleges that, since on or about May 23, 1950, the Respondent has refused, and continues to refuse, to bargain collectively with the Union as the statutory representative of the employees in the appropriate 4 This notice , however, shall be and it hereby is amended by striking from the first paragraph thereof the words, "The Recommendations of a Trial Examiner" and substi- tuting in lieu thereof the words, "A Decision and Order " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order" the words, "A Decree of the United States Court of Appeals Enforcing." I The General Counsel and his representative in this proceeding are referred to herein as the General Counsel ; the National Labor Relations Board is called the Board. - P The Birdsall-Stockdale Motor Company, Case No. 30-RC-262. THE BIRDSALL-STOCKDALE MOTOR COMPANY 583 unit, and has thereby engaged in, and is engaging in unfair labor practices within the meaning, of Section 8 (a) (5), and 8 (a) (1) of the Act. In its answer, filed on July 24, 1950, the Respondent substantially admits the allegations of the complaint regarding the nature and extent of its operations, and the certification of the Union by the Board, but denies the validity of said proceedings, the appropriateness of the unit, and the jurisdiction of the Board. Further answering, the Respondent admits that it refused to bargain with the Union on or about the date alleged in the complaint, and that it has since refused to bargain with said Union, though denying that it has engaged in any unfair labor practices. On July 24, 1950, the Respondent also filed a motion to dismiss the complaint on the ground that it is not engaged in, and that its operations do not affect, commerce within the meaning of the Act. For reasons appearing hereinafter, the motion is hereby denied Hearing having been waived, pursuant to stipulation of the parties, the entire record in the matter was referred to Irving Rogosin, the undersigned Trial Examiner, duly designated by the Associate Chief Trial Examiner, for the issuance of an Intermediate Report. Upon the basis of said stipulation, and upon the entire record thus made, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The ,Birdsall-Stockdale Motor Company, a Colorado corporation, with its place of business at Colorado Springs, Colorado, is, and at all times material herein has been, engaged in the operation of a retail automobile agency engaged in the sale, servicing, and storaging of new and used automobiles. The Respond- ent is an authorized dealer in the sale, under separate franchises, of Packard and Pontiac automobiles, and the sale and installation of replacement parts and accessories for such automobiles. During the year 1949, the Respondent purchased from the Denver Zone office for the Pontiac Motor -Division of General Motors Corporation, automo- biles valued at $144,988, which were assembled in and ultimately shipped to the Respondent's place of business from the Fairfax District adjoining Kansas City, Kansas, although shipped and invoiced to General Motors Acceptance Corporation, Colorado Springs, Colorado. During the same period, the Respond- ent purchased from the Packard Motor Car Company, Detroit. Michigan, auto- mobiles valued at $134,634, which were similarly shipped and invoiced to said General Motors Acceptance Corporation at Colorado Springs 8 New automo- bile parts and accessories purchased by the Respondent from said plants during this period amounted to $44,004, of which $21,465 in amount consisted of Pontiac parts and accessories, purchased and shipped to the Respondent from Denver, Colorado; and the balance of $22,539 consisted of purchases of Packard parts and accessories ordered and shipped to the Respondent from points outside the State of Colorado. During the same period, the Respondent's total sales and receipts amounted to $685,547, all of which were made in the State of Colorado, specifically in Colorado Springs. 3 That title to the automobiles may not have passed to the Respondent until after necessary arrangements with the finance company is immaterial to the issue of the Board's jurisdiction . Williams Motor Company V . N. L. R. B., 128 F. 2d 960 , 963, 964 (C. A. 8), and cases cited. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the operation of the Respondent's business, it employs a total of about 40 employees, of whom about 12 are in the bargaining unit represented by the Union.' On the basis of the foregoing, and the entire record, the undersigned finds, contrary to the Respondent's contention, and for reasons stated in the Baxter Brgs case,' that, at all times material herein, the operations of the Respondent have affected commerce within the meaning of the Act, and that the assertion of jurisdiction by the Board will effectuate the policies of the Act. If. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge No. 750, Ind., is a labor organ- ization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A The refusal to bargain 1. The appropriate unit The complaint alleges, in accordance with the Board's finding in its Decision and Direction of Election, dated March 23, 1950, that the following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All mechanics, bodymen, painters, trimmers, apprentices and helpers at the Respondent's Colorado Springs, Colorado, plant, excluding all office and clerical employees, salesmen, guards, professional employees, and all supervisors as defined in the Act. In its answer, the Respondent admits that such a unit is appropriate within the meaning of Section 9 (b) of the Act, but denies that "any unit whatsoever is appropriate for the purposes'of collective bargaining under the Act in relation to any employees in the retail business of this Respondent." The Board has already decided this issue, as well as the issue of jurisdiction, adversely to the Respondent.' No new evidence has been adduced by the Re- spondent in support of its contention, and the Board's decision is, therefore, deter- minative of this issue.' The undersigned finds that the unit above described is appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, and that said unit will assure to the Respondent's employees the full benefit of their right to self-organization and collective bar- gaining and will otherwise effectuate the policies of the Act. 2. Majority representation by the Union At an election held under the auspices of the Regional Director on April 11, 1950, pursuant to the Board's Decision and Direction of Election, dated March 23, 1950, a majority of the valid votes were cast in favor of -the Union. No objec- tions to the conduct of the election were thereafter filed by the Respondent, and, on April 19, 1950, the Board, by its Regional Director, issued its Certification 4 The findings in this section are based on the stipulation of the parties , the admissions in the Respondent's answer to the pertinent allegations of the complaint , and the record and exhibits in the representation proceeding. 5 Avedtis Baxter and Ben Baxter, doing business as Baxter Bros., 91 NLRB 1480; see also, M. L. Townsend, 81 NLRB 839, enfd. 185 F . 2d 378 ( C. A. 9), rehearing denied, November 22, 1950 , 27 LRRM 2155. s See footnote 2, supra. 7 Conlon Brothers Manufacturing Company, 88 NLRB 107. THE BIRDSALL-STOCKDALE MOTOR COMPANY 585 of Representatives, attesting that the Union had been designated and selected by a majority of the employees of the Respondent, in the unit theretofore found by the Board, and now found by the undersigned, to be appropriate. The undersigned accordingly finds that the Union was, on April 19, 1950, and has been at all times material since, the duly designated collective bargaining representative of the employees of the Respondent in the unit found appropriate, and, as such, the exclusive representative of said employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment,- and other conditions of employment, as provided in Section 9 (a) of the Act. 3. The refusal to bargain It was stipulated between the parties, and the undersigned finds, that on May 23, 1950, M. A. Lovay, Grand Lodge Representative of the Union, called on Thomas M. Burgess, counsel for the Respondent, and requested that the Respond- ent negotiate a collective bargaining agreement with the Union as the statutory representative of the Respondent's employees. In response to this request, Burgess handed Lovay a memorandum in which the Respondent renewed its denial of the Board's jurisdiction over the Respondent, contested the validity of the election conducted, and the certification of the Union by the Board and refused to bargain with the Union. It was further stipulated, and the under- signed finds, that the Respondent has, since May 23, 1950, refused, and continues to refuse, to bargain with the Union as the representative of any of the Respond- ent's employees. No new considerations have been presented by the Respondent in this proceed- ing in defense or justification of its refusal to bargain. The contentions raised herein were urged before the Board in the representation proceeding involving the same parties, and dealing with the same basic issues, and were overruled. The Respondent's admitted refusal to bargain with the Union after certification by the Board, upon grounds advanced before and overruled by the Board, consti- tutes a refusal to bargain within the meaning of the Act .8 The undersigned therefore finds, on the basis of the stipulation of the parties, and the entire record, including the representation proceedings, that, since May 23, 1950, the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees of the Respondent in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, in violation of Section 8 (a) (5) of the Act, and that, by such refusal has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 8 See Conlon Brothers Manufacturing Company, supra. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOA11D It has been found that the Respondent has refused to bargain collectively With the Union as the exclusive representative of the employees of the Respondent in the appropriate unit. It will, therefore, be recommended that the Respondent bargain collectively with the Union, upon request, as the statutory representative of the employees in the unit found to be appropriate, and, if an nuderstandiug is reached, embody such understanding in a signed agreement. Since the record does not reveal any evidence that the Respondent has engaged in any other unfair labor practices, and since it appears that the Respondent's refusal to bargain is based on its desire to litigate the issue of the Board's juris- diction over the operations of the Respondent, rather than a fundamental atti- tude of opposition to the objectives of the Act, it will be recommended merely that the Respondent cease and desist from refusing to bargain with the Union as the exclusive representative of the employees in the unit, and from in any man- ner interfering with the efforts of the Union to bargain collectively oil their behalf. Upon the basis of the foregoing findings of tact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge No. 750, Ind., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All mechanics, bodymen, painters, trimmers, apprentices, and helpers at the Respondent's Colorado Springs, Colorado, plant, excluding all office and clerical employees, salesmen, guards, professional employees, and all super- visors as defined in the Act, constitute, and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Association of Machinists, Lodge No. 750, Lid., was, on April 19, 1950, and has been at all times material since, the exclusive representative of all the employees in the unit above described for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By refusing, on May 23, 1950, and thereafter, to bargain collectively with International Association of Machinists, Lodge No. 750, Ind., as the exclusive representative of all the employees in the unit above described, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the :Act. [Recommended Order omitted from publication in this volume.] SUPERIOR COMPANY, INC. and TEx'rILE WORKERS UNION OF A MERICA, CIO. Case No. 8-Cpl.-4,05. May 17, 1915-1 Decision and Order On January 29, 1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that 94 NLRB No. 90.