Frisch Chevrolet, Inc.

FRISCH CHEVROLET, INC. 73 Frisch Chevrolet, Inc. and International Union, United Auto- mobile and Agricultural Implement Workers of America, Amalgamated Local No. 259, UAW, AFL-CIO and Allied Trades, Local No. 18,1 Party to the Contract. Case No. 2-CA-6191. July 18, 1960 DECISION AND ORDER On May 6, 1960, Trial Examiner Ramey Donovan issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Frisch Chevrolet, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Giving effect to, performing, or in any way enforcing any agreement with Allied Trades, Local No. 18, including the agreement 'After this proceeding was transferred to the Board, the National Independent Union Council (NIUC) informed the Board that Allied Trades, Local No. 18 was not an affiliate of the Council and requested that reference to the Council in this proceeding be deleted On June 20, 1960, the Board issued a notice to show cause why the Council's request should not be granted As no response to the notice to show cause has been timely received, we hereby grant the Council's request and delete reference to it in this case 2In the only exception filed in this case, the General Counsel urged that paragraphs 1(b) and 2(a) of the Trial Examiner's recommended order, and related language in the notice, be amended to preclude recognition of Allied Trades, Local No 18 by Respondent "unless and until said labor oiganization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees," rather than when that labor organization has demonstrated its majority status in a Board election As the Board now, as a matter of course, certifies a union which is successful in a Board elec- tion, we shall amend the order and notice herein in conformity with the General Counsel's request. In the absence of exceptions by the Respondent to the Intermediate Report, we hereby otherwise adopt the Trial Examiner's findings, conclusions, and recommendations pro forma. 128 NLRB No. 19. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of March 3, 1959, or any extension, renewal, modification, or supple- ment thereof. (b) Recognizing Allied Trades, Local No. 18, or any successor thereto, as the collective-bargaining representative of its employees unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Discriminating against employees in regard to terms and condi- tions of employment, except to the extent permitted under Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) Interfering with, restraining, or coercing its employees in the right to engage in or refrain from engaging in any or all the activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, executed in con- formity with Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Allied Trades, Local No. 18 or any successor labor organization, as the exclusive representative of its employees for the purposes of collective bargain- ing unless and until such labor organization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of such employees. (b) Reimburse its employees for all initiation fees and dues paid to Allied Trades, Local No. 18, pursuant to a contract or agreement between Respondent and said Local. (c) Post at its shop in Brooklyn, New York, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent's authorized representative, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply therewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall he substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." FRISCH CHEVROLET, INC. APPENDIX NOTICE TO ALL EMPLOYEES 75 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT give effect to, perform, or in any way enforce our agreement of March 3, 1959, or any other agreement with Allied Trades, Local No. 18, or any extension, renewal, modification, or supplement thereto that may now be in force covering our shop. WE WILL withdraw and withhold all recognition from Allied Trades, Local No. 18, or any successor thereto, as the collective- bargaining representative of our employees unless and until said organization has been duly certified by the National Labor Rela- tions Board as the exclusive representative of such employees. WE WILL NOT encourage membership in said labor organization or in any other labor organization by discriminating in any manner against our employees in regard to terms and conditions of employment, except to the extent permitted under Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL reimburse our employees for all initiation fees and dues paid to Allied Trades, Local No. 18. WE WILL NOT interfere with, restrain, or coerce our employees in the right to engage in or refrain from engaging in any or all the activities guaranteed themby Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, executed in conformity with Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. FRISCH CHEVROLET, INC., Employer. Dated---------- ------ By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon duly filed charges by Local No. 259, UAW, AFL-CIO, herein called Local 259, the General Counsel issued an amended complaint against Frisch Chevrolet, Inc., herein called Respondent. The complaint alleged that since May 10, 1951, Local 259 and Respondent have been parties to collective-bargaining agreements covering all Respondent's employees except sales staff, office force, service manager, and nonworking foremen and that there was in effect a collective-bargaining agree- ment between the aforementioned parties from May 10, 1957, to May 10, 1958. It was alleged that: On or about May 8, 1958, and in July 1958, Respondent paid to Local 18 the initiation fees and dues for its employees in the aforedescribed unit without reimbursement from said employees; on or about May 10, 1958, and March 3, 1959, Respondent and Local 18 executed and maintained a collective-bargaining contract that recognized Local 18 as the exclusive bargaining representative of the employees aforedescribed and that required membership in Local 18 as a condition of employment; and Respondent engaged in such conduct although Local 18 was not the duly designated collective-bargaining representative of an uncoerced majority of employees and although Local 259 was the contractual bargaining repre- sentative of such employees. By the aforedescribed conduct, the complaint alleged that Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. In its answer to the complaint Respondent denied that it had engaged in unfair labor practices as alleged. A hearing, with all parties represented, was held before the duly designated Trial Examiner in New York City on February 23 and 24, 1960. Based upon the entire record in this case and upon observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Frisch Chevrolet, Inc., is a New York corporation with its principal office and place of business in Brooklyn, New York, where it is engaged in the sale and distri- bution of automobile parts and accessories and related products During the past year Respondent has caused to be purchased, transferred, and delivered to its place of business, automobiles, automobile parts, and accessories of a value in excess of $500,000, of which, goods and materials valued in excess of $500,000 were transported to said place of business directly from States of the United States other than the State of New York. It is found that Frisch Chevrolet, Inc., is engaged in commerce within the meaning ,of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile and Agricultural Implement Workers of America, Amalgamated Local No. 259, UAW, AFL-CIO, and Allied Trades, Local No 18, National Independent Union Council (NIUC), are labor organizations ,within the meaning of Section 2(6) and (7) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES From May 10, 1951, a series of collective-bargaining contracts has been in effect between Respondent and Local 259. By the terms of the contracts Respondent recognized Local 259 as the exclusive bargaining agent for all its employees except its sales staff, office force, service manager, and nonworking foremen. Among other provisions the contracts contained a union-security clause The most recent contract between the aforementioned parties was in the form of a supplemental agreement by which the contract, with changes set forth in the supplemental agree- ment, was extended for the period from May 10, 1957, to May 10, 1958, with provision for automatic renewal for an additional year unless either party notified the other of proposed changes, cancellation, or termination According to the uncontroverted testimony of Myers, the Local 259 representative who at that time serviced the Frisch unit, he came to the shop "around the beginning of 1958" because the contract would be coming up for negotiation. Myers met with the Frisch employees across the street from the shop and contract proposals were ,drawn up. There were three employees present at this meeting. Myers described FRISCH CHEVROLET, INC. 77 the employees present as the "usual three." The evidence indicates that there were actually five employees in the unit but Myers testified that he was unaware that there were more than three men working in the shop. The May 1957-May 1958 agree- ment names three employees. The parties stipulated that two employees, Price and Steiger, were employed in the period from May 1 to 15, 1958, but were on piece- work and therefore were not on the payroll record. In any event it is found that employees Alexis, Garoni (or Guerim), and Nelson Hairston were the employees who were members of Local 259 and for whom Respondent had transmitted checked- off dues to Local 259 for the month of April 1958.1 On February 14, 1958, Local 259 notified Respondent in writing of its desire to terminate the contract and to negotiate changes or modifications therein on wages, fringe benefits, and other matters. Myers attempted by telephone and by visiting the shop to talk to Frischling, the owner of Respondent, about contract proposals and negotiations. These efforts, however, were unsuccessful and Myers did not succeed in making contact with Frischling. Martini, who was Myers' successor as Local 259 representative, spoke to Frischling about the first week in May 1958 and requested that arrangements be made for contract negotiations. Frischling agreed to telephone Martini. Not having heard from Frischling, Martini went to the shop about May 6 or 7 but could not find Frischling. At the end of May or early in June Martini told Frischling that he would like to start contract negotiations. Frischling, according to Martini, said, "Well, as far as the contract with 259 you can forget about it-I have my own union and that's it." 2 Jack Fecter, secretary-treasurer of Local 18, testified that early in February 1958 he spoke to the men in the shop and satisfied himself that they offered a fertile field for organization. Thereafter Fecter, by visiting the shop over a period of time, secured signatures on Local 18 cards or applications from all the employees in the unit. The signatures were apparently secured during working hours but there is no evidence that the employer was aware of such activity. Fecter testified that he "sneaked in" to the shop from time to time while organizing. While some of the cards and applications are undated and others bear dates not inserted by the signatory employee either at the time of signing or otherwise, the Trial Examiner credits Fecter's testimony that he had secured signed cards or applications from at least a majority or all of the employees in the unit when he approached Frischling According to Fecter he went to Frischling in the early part of May 1958, and told him he had cards and applications from the employees. Frischling and Fecter together then went to the employees and Frischling asked each man if he had signed the Local 18 card. Frischling also asked the employees on the same occasion if they wished to have Local 18 represent them. The answers of the employees were in the affirmative. Fecter was unable to recall how many times he saw Frischling before a contract was signed or whether the contract was signed when he first approached Frischling as aforedescribed. It is clear, however, that Respondent and Local 1& executed a contract, dated May 10, 1958, for a term from May 10, 1958, to May 9, 1961, by which Local 18 was recognized as the exclusive bargaining agent The contract included, inter alia, a union-security and checkoff clause. This contract was maintained and enforced by the parties as Respondent admits in its answer. It is also admitted that the same parties aforementioned executed a contract on March 3, 1959, for a term of 3 years. This latter contract contained the same basic provisions as the preceding contract and was maintained and enforced. There is no evidence that the employees ever resigned from Local 259 or advised that Union that they no longer wished to be represented by that organization. Apparently the only action taken was that the employees signed Local 18 cards, a 1 The Trial Examiner credits Myers' testimony that Local 259 was unaware of the two- additional employees, Steiger and Price In view of the union shop provision of the contract and the checkoff arrangement it seems unlikely that Local 259 would have ignored the existence of two employees if it had been aware of their presence. 2 Since Frischling was deceased at the time of the hearing Respondent objected to the foregoing testimony citing Section 346 of the New York Civil Practice Act [We believe Section 347 is the pertinent section ] The Trial Examiner credits and relies upon Martini's testimony concerning the above occasion to the extent only that it is evidence that Respondent refused to enter into contract negotiations with Local 259 It is our opinion that this fact is corroborated by the evidence as a whole and that Respondent does not contend that it was prepared at the end of May or early June 1958 to deal with Local 259 as the bargaining agent of its employees, having admittedly, as we shall see hereinafter, entered into a contract with Local 18, commencing May 10, 1958 See also the third paragraph of Respondent's answer. Cf. The Linde Air Products Company, 86 NLRB 1333, 1336-1337. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact of which Local 259 was not advised. Respondent entered into a contract with Local 18 without prior communication with Local 259 or without having received any word from that organization that it was no longer claiming to be the bargaining agent of the employees. The evidence in fact established that Local 259 continued to assert its bargaining agent status and at all relevant times was desirous of nego- tiating a contract with Respondent on behalf of the employees in the unit. In addi- tion to the evidence previously referred to as indicative of Local 259's continued interest, Respondent had received a letter, dated April 7, 1958, from the New York State Board of Mediation to the effect that Local 259 had instituted arbitration proceedings regarding the hiring of new employees. This subject matter was indica- tive of both a current and a prospective interest on the part of the Union. Nothing had been said to the employees by either the Respondent or by Local 18 about the matter of initiation fees for that organization. The first mention of the topic occurred in May 1959 when Frischling informed Garoni, the shop steward, that he had paid the initiation fees for the men in Local 18 and that they would have to repay him.3 Garoni so advised his fellow employees. It was decided that since the employees were not prepared to pay the $25 fee at one time they would each authorize the Company to deduct so much per pay period from their sick leave pay until each had repaid the Company the sum of $25 that hey owed. This was done. Conclusions On the foregoing facts it is found and concluded that Respondent in the early part of 1958, particularly in May 1958, had at most a situation where Respondent was faced with conflicting claims by two unions. These claims gave rise to a question concerning representation and Respondent was not at liberty to recognize or enter into a contract with one of the unions until its right to recognition had been deter- mined by the procedures provided for by the Act. By recognizing Local 18 and by entering into a contract with that organization and by paying initiation fees to Local 18 on behalf of its employees , Respondent has illegally assisted that union and has violated Section 8(a)(1), (2), and (3) of the Act.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with its operations 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 Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take the customary type of affirmative action designed to effectuate the policies of the Act. In view of the illegal assistance to Local 18 and the illegal contract , including a requirement that membership in Local 18 was a condition of employment, reim- bursement of dues and fees will be recommended .5 CONCLUSIONS OF LAW 1. Respondent, Frisch Chevrolet , Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 259, United Automobile and Agricultural Implement Workers of America, AFL-CIO, and Local 18, Allied Trades, National Independent Union Council, are labor organizations within the meaning of Section 2(5) of the Act. 3. By assisting and contributing support to Local 18, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 4. By discriminating with respect to terms and conditions of employment, Re- spondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By the foregoing conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, I By check, dated May 8, 1958, Frischling had paid Local 18 a total of $160 of which $24 was for dues, $36 was for welfare, $100 was for initiation fees. A Midwest Piping & Supply Co, Inc, 63 NLRB 1060 ; Novak Logging Company, 119 NLRB 1573 and cases cited therein ; A 0 Smith Corporation, 122 NLRB 321. 5 Virginia Electric and Power Company v . N L R.B., 319 U . S. 533. BURKE OLDSMOBILE, INC. 79 thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Burke Oldsmobile, Inc. and Local 259, United Automobile, Air- craft and Agricultural Implement Workers of America, UAW, AFL-CIO and Local 868, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Case No. 2-CA-6285. July 18, 1960 DECISION AND ORDER On March 22, 1960, Trial Examiner W. Gerard Ryan 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 Inter- mediate Report attached hereto. Thereafter, the Respondent and Local 868, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed exceptions and a joint brief in support thereof. 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 Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in this 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, Burke Oldsmo- bile, Inc., New York, New York, its officers, agents, successors, and assigns, shall: I We adopt the Trial Examiner's finding that at the employee meeting in March 1958, 27 employees signed new authorization cards for Local 259, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO. Although these cards were not offered into evidence witnesses Ireland and O'Connell further testified that these cards were not available at the hearing as they were lost, together with other records of the Local, in the summer of 1958 during a change of administration in the Union. 128 NLRB No. 12.