Branch Motors, Inc.

906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group 2. All other full-time and regular part-time store employees. Group 3. All warehouse employees, including truckdrivers and mechanics. We shall place the names of the Meat Cutters and the Teamsters on the ballot in the election among the employees in Group 1; the Clerks and the Teamsters in group 2; and the Teamsters alone in group 3. If the majority of employees voting in group 1 select the Meat Cutters, or if the majority of employees voting in group 2 select the Clerks, they will be taken to have indicated their desire to constitute separate units, and the Regional Director conducting the elections directed herein is hereby instructed to issue a certification of repre- sentatives to the Meat Cutters and to the Clerks for such units, which the Board, in such circumstances, finds appropriate for the purposes of collective bargaining. However, if a majority of the employees in group 1 and in group 2 do not vote for the Meat Cutters and the Clerks, respectively, those employees will appropriately be included with the employees in group 3, and their votes will be pooled with those in group 3.6 The Regional Director is instructed to issue a ,certification of representatives to the Teamsters if it is selected by the majority of the employees in group 3 or in the pooled group, as the case may be, which the Board, in such circumstances finds to be a unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] U If the votes are pooled , they are to be tallied in the following manner : the votes for the labor organizations seeking separate units in groups 1 and 2 shall be counted as valid votes , but neither for nor against the labor organization seeking to represent an employerwide unit. All other votes are to be accorded their face value, whether for repre- sentation by the union seeking the more comprehensive group or for no union. Branch Motors, Inc. and Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case No. 9-CA-6903. December 9, 1960 DECISION AND ORDER On May 5, 1960, Trial Examiner John F. Funke issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter mediate Report and a supporting brief. 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, Fanning, and Kimball]. 129 NLRB No. 109. BRANCH MOTORS, INC. 907 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] 1 At the hearing, the Trial Examiner denied the General Counsel's motion to amend the complaint for the purpose of adding certain 8(a) (1) allegations As the record shows that the General Counsel had all the pertinent information with respect to these alleged violations in his possession at the time when the complaint was issued, the proposed amendment of the complaint was untimely and the motion was properly denied. In footnote 1 of the Intermediate Report, the Trial Examiner recited his disposition of this mattei In so doing he engaged in a general criticism of the administrative policies of the General Counsel of the Board and attacked the performance of the General Counsel's -duties in a wholly unwarranted and offensive manner The Trial Examiner acted clearly ultra vsres we hereby disassociate ourselves from, and do not adopt, the last sentence in footnote 1 of the Intermediate Report beginning with the words. "The denial of . . ." and -ending with " . . to the hearing." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding came on to be heard before the duly designated Trial Examiner at New York, New York, on February 24 through March 2, 1960. The complaint alleged that Branch Motors, Inc, herein called the Respondent or the Company, refused to bargain in good faith with Local 810, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, herein called the Union or Local 810; unilaterally changed conditions of employment; refused to sign a written agreement; and refused to recognize Local 810 as bargaining representative of its employees in violation of Section 8(a)(1) and (5) of the Act. The answer denied the allegations and presented a separate and distinct defense. At the opening of the hearing counsel for Respondent moved to dismiss the com- plaint on the ground that the issues had been fully litigated in Case No. 2-RM-1040. (This was one of the separate and distinct defenses set forth in the answer.) The petition in that case was dismissed by the Board after hearing but without decision on the merits because the instant charge had been filed and the issues litigated in Case No. 2-RM-1040 would be litigated in the instant case. The motion was accord- ingly denied. During the hearing the General Counsel moved to amend his complaint to allege that Respondent violated Section 8 (a) (1) of the Act by interrogating its employees with respect to their union membership and activity. The evidence to support the amendment was testimony given by Respondent's president during the hearing in Case No. 2-RM-1040 and in a pretrial affidavit. The motion was denied at that time on the ground that the General Counsel had ample time to amend the com- plaint before hearing and give adequate notice of this issue to Respondent. The Trial Examiner suggested that if the issue was fully litigated during the hearing he would reconsider his ruling at the end of the hearing. At the end of the hearing the Trial Examiner again denied the motion.' i Martin Gottleib, president of Respondent , testified that he interrogated his employees respecting their union affiliation and sympathy after his return from Florida. Such interrogation was within the limitation set forth in Section 10(b) However, the testi- mony does not reveal the manner or the circumstances of the interrogation. Since interro- gation is not per se a violation of the Act (see Blue Flash Express, Inc., 109 NLRB 591), I do not find that the issue was fully litigated or that the record is sufficient for the making of any finding The denial of the General Counsel's motion at the hearing as untimely was made with recognition of the fact that the imposition of arbitrary admin- istrative deadlines has, except for those Regional Offices which are overstaffed, impaired the Regions in making adequate investigations, in giving full deliberation to the issues, and in effecting informal settlements prior to the hearing. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel for Respondent and for the General Counsel submitted oral argument and a brief was received from counsel for the Respondent on March 28, 1960. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a New York corporation having its principal office and place of business at Hewlett, Long Island, New York. It is engaged in the sale and servicing of automobiles and during the past year it purchased and caused to be transported and delivered to its Hewlett place of business from places outside the State of New York automobiles and parts valued in excess of $1,000,000. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Local 810, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Martin Gottleib was president and secretary of Branch Motors , Inc., and its chief stockholder . He had operated the business for some 10 years at Hewlett, Long Island. On March 20, 1959, 16 employees were employed in Respondent's service department , exclusive of Herbert Dupree, the service manager. Although there was dispute as to whether or not Jimmy D'Amica, service salesman , and Grill, the parts man, were supervisors,z it was agreed that the service department constituted a unit appropriate for the purposes of collective bargaining and I so find. Gottleib operated his business free from contractual relations with any labor organization until February 1959, when time and the march of events caught up with him. On February 28 Gottleib signed, on behalf of Respondent, a collective- bargaining contract with a labor organizaton identified only as Amalgamated Local Union 355 . The circumstances under which he signed the contract, the means and methods by which Local 355 organized the men , if it did, and the evidence he re- ceived of its majority designation , are not disclosed by the record herein The contract 3 does not spell out the unit covered but the evidence indicates it was intended to cover the service department employees . The contract did contain the all-important checkoff provision and Gottleib testified that as soon as he signed the contract he received authorization of checkoff cards from the union representative and that his service manager , Dupree, called the servicemen into the salesroom where they signed the cards. That same day he was informed by Dupree that the men were disgruntled with the selection of Local 355 as their bargaining agent. A second meeting of the employees was held at which the men rejected Local 355 as their bargaining agent (Again the circumstances are not disclosed .) Gottleib then called Local 355 and told its representative that the men did not want repre- sentation and the contract was "off." Such was Gottleib's experience with the processes of collective bargaining when the Teamsters came. Robert Pedian , parts department employee, testified that sometime in early March he was introduced to Milton Finn (inevitably nicknamed Mickey ) at the Mill Road Inn, a bar and restaurant located about one-half mile from Branch Motors. Finn, an organizer for Local 810 , urged Pedian to discuss the benefits of union organiza- tion with the other employees of Respondent and to arrange a meeting for them with Finn . The following night (March 24) Pedian and four other employees 4 met Finn at the inn At this meeting, which lasted about 2 hours, all five employees signed authorization cards designating Local 810 and delivered them to Finn Finn gave the employees other cards so that more signatures could be obtained the next day. Pedian and Bob Koester were tentatively appointed members of the negotiating committee to meet with Gottleib when the Union attained majority status. The next night Pedian again met Finn and gave him four additional cards. These were signed a In view of my finding herein that nine employees signed authorization cards , I find It unnecessary to resolve this issue ° General Counsel's Exhibit No 13 4 These were Koester, Jackowski , Morrissey, and Hughes . Morrissey had left the em- ploy of Respondent before the hearing and did not appear Hughes had died. BRANCH MOTORS, INC. 909 by employees Joseph Liotta, Alexander Daniels, James Martin, and John Vinson .5 I find that on March 25, 1959, 9 employees of a total of not more than 16 in an appropriate unit had signed authorization cards designating Local 810 as their bar- gaining agent. On March 26 Finn called Gottleib, identified himself, told him Local 810 repre- sented a majority of the service employees, and asked for a meeting to negotiate a contract. Gottleib suggested a meeting at the beginning of the following week. (March 26 was a Thursday.) Either that day or the next day Gottleib held a meeting of the employees in the service department. Gottleib's testimony, and it is not substantially contradicted by the employees present, is that there was a general discussion of Local 810's repre- sentative status and the employees indicated by a "show of hands" vote that they did not want to be represented by Local 810.6 On Sunday, March 29, Milton Silverman, former president and general manager of Local 810,7 Finn, and Gottleib met in Gottleib's office. Gottleib was flying to Florida that day and the meeting was a brief one. Silverman arrived before Finn and, according to his testimony, he had a preliminary conversation with Gottleib with regard to Gottleib's contract with Local 355. The testimony is in a vernacular peculiar to New York and its environs and not too clear as read from the record but Silverman assured Gottleib it would be easy to get rid of Talco (Bernard Talco, presumably the representative of Local 355), stating, ". . . the easiest thing is to ask Mr. Talco to withdraw. Also, Mr. Talco is going to withdraw himself without your asking." 8 When Finn arrived he displayed the authorization cards to Gottleib to support the claim that Local 810 represented a majority of the employees. Gottleib ran through them and remarked, "The men are a bunch of whores. The same people that told me they are with me, signed the cards." Silverman testified that Gottleib mentioned an election among the men 9 and then decided it would cause too much 5 Over objection from the General Counsel testimony was received from these em- ployees respecting the circumstances under which they signed the cards. Their testi- mony was marked by certain deadly parallels Thus each testified that at the time he signed he was assured that all of the employees were signing or had signed and that he would not have signed had it not been 'for such assurance and his own belief that all the employees were signing Each testified that he had never met Finn prior to signing, had never attended a meeting of the Union, and never paid dues to Local 810 e There is confusion but not contradiction among the witnesses on this point Pedian could not recall a show of hands vote but did recall that a majority of the emnloyees voiced their opposition to Local 810. Koester testified that he told Gottleib he was .opposed to representation by Local 810 after each man had been interrogated by Gottleib and that at the end of the meeting a show of hands indicated a majority were opposed to 810 Vinson, Martin, and Jackowski testified that each raised his hand to show oppo- sition to Local 810. On the basis of this uncontradicted testimony I find that four of the employees who signed authorization cards indicated their repudiation of the Union at this meeting and that a majority of the employees who attended the meeting indicated their opposition to the Union (There is no evidence that a single employee who attended this meeting expressed himself as favoring the designation ) Pedian testified that after this meeting the employees did not want to be bothered with Local 810. Although I find that Gottleib did interrogate the employees at this meeting as to whether or not they wished to be represented by Local 810, there is no evidence that any threats of reprisal or promises of benefit were made by any representative of management at the meeting and Gottleib testified that all of the men expressed their opposition to representation by Local 810 7 Silverman testified that he resigned the presidency of Local '810 in 1959 because he held office in the "IBW" [sic], an AFL-CIO affiliate, and was requested to resign the presidency after the Teamsters were expelled from AFL-CIO 8 Silverman's explanation, on the record Q (By TRIAL EXAMINER) How did you know this' A We had been talking to Talco and we had told him he jumped a couple of shops which our orgamreis were canvassing This was not the only one I told Mr Gott- leib-I had told Mr Gottleib of one or two other instances where we had a strike situation in another Ford Distributor's plant in which the same thing took place. Where Talco finally conceded that lie had no interest and mentioned the men who had no choice and that particular shop was assigned and we were conducting a strike against Talco in a shop in which a similar situation occurred and I Said, "You aie going to get 3 ourself involved You are going to have to answer for your conduct." Finn's testimony is that no one mentioned an election. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "commotion." It was agreed that Silverman would meet Gottleib in Florida to continue the discussion but the meeting there was inconclusive.io Finn met with Gottleib upon his return to Hewlett and called him several times without any progress.li On May 21 he went to Gottleib's office with another or- ganizer, Ed DeLang, and took with him the contract which Gottleib had signed with Local 355. He told Gottleib Local 810 had a statement from Local 355 "with- drawing from the picture," 12 accused Gottleib of stalling, and demand a meeting to negotiate a contract. A meeting was arranged for May 27. It started in the turkish baths of the Biltmore Hotel and ended with dinner at the Christ Cella restaurant. Gottleib and his accountant, Sam Stern, attended and Silverman, Finn, and Gard, another organ- izer, represented Local 810. A proposed contract, Local 810's basic contract,13 was submitted to Gottleib who asked for time to study it. Finn and Gottleib then met on June 4 at Gottleib's office. According to Finn, he (Finn) made certain changes in the contract in red ink during the meeting to conform to changes and modifica- tions suggested by Gottleib and it was agreed that Finn would draft another contract incorporating these changes. On June 21 Finn and Gottleib met again to go over the contract which Finn had revised as a result of the June 4 meeting. Finn's testi- mony is that still further changes were made in this contract,14 Finn again making some of the changes in red ink and Gottleib making some changes in pencil. (Gottleib's testimony is that the contract contained the red ink changes when Finn brought it to him and that he made the penciled changes after Finn left.) Finn admitted that there was dispute concerning the welfare clause. Gottleib claimed to have a welfare plan of his own but the testimony on this is almost incompre- hensible.15 Finn testified that it was finally agreed that Finn should have the Union's attorney make a new draft of the contract incorporating the changes and notations and it would then be signed. This done, Finn met again with Gottlelb on June 30 with "about five copies" of the final agreement. Gottleib again made objec- tions to the form of the contract, made further corrections, pleaded that he was tired and needed a rest, and asked that the signing be postponed until the end of the summer. Finn then picked up the contracts and left. No further negotiations were conducted. Some of the discrepancies in the testimony between Finn and Gottleib have already been noted. Gottleib testified that he continually suggested that a Board election be held since he was not convinced the Union represented a majority of his employees. Finn denies that an election was ever mentioned. Gottleib testified that he was told by Silverman and Finn that they had received a valid assignment of his contract with Local 355. Their testimony is that Gottleib knew this contract was invalid and ii The Local 355 contract was again mentioned and Silverman testified : . . I sat down in the vestibule with Mr. Gottlelb and he had told me, apologized for getting into a mess like this. I said, "You do not have to apologize. There are a lot of promoters who go around with cards and references and they do not organize the people, they organize the employers and it is a common practice and that is why the present law is going to be changed. They are going to put a stop to this It is going to be a serious violation. A number of labor relations people have no regard for the law and you should not get yourself involved " u Finn thought Gottleib was stalling and told Silverman, "Mr. Gottleib is stalling. There is one serious obstacle. We eliminated out other paragraphs in the contracts, but we are stymied on welfare. He is also delaying concluding the agreement by talking to the people. . . . I got an idea that he is intimidating some of the active people that we have. 13 General Counsel's Exhibit No 9 This was an agreement between Local 355 and Local 810 by which Local 355 ceded jurisdiction over Branch Motors to Local 810 and assigned its contract with Branch Motors to Local 810. Local 355 also ceded jurisdiction over two other employers to Local 810 and Local 810 disclaimed jurisdiction over two employers The agreement was a negotiated peace with no plebiscite among the employees. 33 General Counsel's Exhibit No. 2. 14 General Counsel's Exhibit No 3 15 Silverman testified to this plan as follows : He ((Gottleib) asked some other questions in regard to welfare at the time. He said, "I got a good welfare program," kidding around I asked him what he meant by that. He said, "I pay full time to all employees who are sick." I said, "How is that possible'? You cannot possibly do that" He said,, "I do not have it in the contract If I feel like doing it I do it You make promises too, don't you, Mr. Silverman?" And that was it. BRANCH MOTORS, INC. 911 that he did not have to worry about it. The general theme running through Gottleib's testimony (and a great deal of the testimony of Gottleib, Finn, and Silverman is equivocal and ambiguous) is that he was unwilling to sign because he doubted that the men wanted to be represented by Local 810 (he had already been trapped by one labor organization into signing a contract only to have it repudiated by the men); that he requested an election but the Union said it was unnecessary; and that he continued to meet with Finn and discuss the contract because he was afraid that Local 810 would picket and stop deliveries to his p] ant. I do not find that the events which occurred subsequent to the meeting of June 30 between Finn and Gottleib relevant to the issues herem.is My conclusions and recommendations are based solely on the evidence of the transactions, events, and negotiations which terminated on that day. B. Conclusions In his oral argument counsel for the Respondent, a man not at a loss for words, referred to the transactions and negotiations which took place between the parties as "a rather shoddy picture." The description is apt and the language well chosen. Not a single witness who appeared in this case impressed me as having a regard for the truth other than as a device to be employed when it furthered his purpose and to be disdained when it did not. The absence of any fully credible evidence makes the resolution of questions of fact more difficult. On the basis of testimony which is uncontradicted I find that a majority of the employees in a unit appropriate for the purposes of collective bargaining designated Local 810 as bargaining agent on March 25, 1959. On that day nine authorization cards signed by employees were delivered to Finn. I also find that on the next day, March 26, Local 810, acting through Finn, made a proper demand for bargaining negotiations upon Respondent. Upon receipt of such demand Respondent admittedly undertook to ascertain for itself whether or not the Union did in fact represent a majority. It did not at that time suggest to the Union that it submit proof of majority status nor that it seek an election under Section 9 of the Act. Only because there is no contradiction or inconsistency in fact or testimony do I credit Gottleib's testimony that he was unaware of an employer's right to file for an election until so advised by his attorney in August. Although Gottleib and his employees testified to the circumstances of the meeting called by Gottleib to ascertain the wishes of the men this meeting is still shrouded in doubt. Gottleib testified that the meeting lasted about 2 hours yet there is almost no testimony as to what was said and by whom. The testimony of all the witnesses does support a finding that a majority of the employees present, and quite possibly all of them, repudiated their designation of Local 810. There is no evidence that such repudiation resulted from either threats of reprisal or promises of benefit on the part of management. The case does not, therefore, fall within what 'is commonly known as the Joy Silk class,17 i.e., those cases where the employer asserts a doubt as to the union's majority to delay negotiations and utilizes the time so gained to dissipate its majority. Neither does this record establish whether or not the interrogation was accompanied by the safeguards required by the Blue Flash rule, supra, and, since the interrogation was beyond the 10(b) limitation, it is unnecessary to determine that point. Since Gottleib had only recently experienced the embarrassment of repudia- 30 On or about August 5, 1959, Local 810 commenced picketing the Respondent's premises. The picket sign (Respondent's Exhibit No 1) bore this legend: Branch Motors Refuses to Abide By A Labor Contract Assigned to Local 810 I.B.T. and Is UNFAIR to LOCAL 810 IBT. As soon as the picketing started Gottleib consulted Attorney Raines and the petition in Case No. 2-RM-1040, a hearing was held on August 28, and the petition was dismissed by the Board after the charge herein was filed. 17 Joy Silk Mills, Inc., 85 NLRB 1263, 185 F. 2d 732 (CAD. C ), cert. denied 341 US 914. See also Adhesive Products Corporation, 117 NLRB 265, 284; D. Gottleib h Co , 102 NLRB 1308, enforcement denied 208 F. 2d 682 (C.A. 7) ; Geigy Company, Inc., 99 NLRB 822; Reeder Motor Company, 96 NLRB 831, enforcement denied 202 F. 2d 802 (C A. 6), cited by counsel for the General Counsel. .912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of a bargaining contract by his employees he had reason to doubt the designation .of Local 810 without some proof. This doubt he chose to resolve by direct inter- rogation and the result of that interrogation could certainly lead him to conclude that the men rejected Local 810 as they had rejected Local 355. 1 do not find, how- ever, that his subsequent dealings with Local 810 were governed entirely by a good- faith doubt. Rather he chose to go through the motions of collective bargaining through fear of picketing while forestalling the execution of a contract through fear -of repudiation by his employees. He may have requested an election of the Union, as his own testimony avers, but he did not insist upon one and he continued to meet with the Union and discuss contract terms with its representatives. Thus his own conduct was inconsistent with his denial of majority status. But the issue on which this case must rest is not Gottleib's motives or his conduct but his obligation, and I do not find that an obligation to bargain existed after the meeting at which his em- ployees rejected Local 810. Without condoning his conduct in continuing negotia- tions, even though motivated by fear of economic reprisal, I do not believe it was in violation of the Act. Had Gottleib signed a contract with Local 810 after the ex- pression of opinion by his employees he would have been guilty of unlawful assistance to Local 810 if it did not, in fact, represent a majority.18 It cannot then fairly be said that his refusal to sign a contract was a violation of Section 8(a) (5). The diffi- culties in this case stem directly from the failure of either Respondent or the Union to utilize the procedure of Section 9(c) and to determine the question of representation by secret ballot. The value of those procedures is nowhere better illustrated than in this case This case makes no contribution to labor law. My finding is confined to the pe- culiar circumstances of the case. I find that Gottleib did have reason to doubt that the Union represented a majority of his employees and that, however inconsistent his action in meeting with the Union was in the face of such asserted doubt, the ob- ligation to bargain was never incurred.19 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. Local 810 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. [Recommendations omitted from publication.] 18 Bernhard-Altmann Texas Corporation, 122 NLRB 1289 "In view of this finding I reject the contention that the unilateral application of the incentive plan during a period from May until July 1959, was also in violation of Sec- tion 8(a) (5) Since Respondent was under no obligation to bargain with the Union at this time it was lawful for it to make such a change in working conditions unless the change waz, made to interfere with, restrain, or coeiee its employees I find the change had neither an unlawful motive nor did it constitute unlawful interference California Lingerie Inc. and Industrial Workers Federation of Labor, Local 886. Case No. 01-CA-3846. December 9, 1960 , DECISION AND ORDER On June 20, 1960, Trial Examiner Eugene K. Kennedy 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. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the 129 NLRB No. 108.