Philanz Oldsmobile, Inc.

PHILANZ OLDSMOBILE, INC. 867 gust 24, damaging a Twin County truck driven by Bociek and in the same incident injuring Bociek; (13) blocking Twin County and Acme entrances at various times between July 28 and August 25; and (14) picketing the Twin County and Acme premises between July 28 and August 25.5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the employers described in section I, above, and the employers described in section III, above, involve an industry affecting commerce, and 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the widespread course of the conduct engaged in by the Respondent, it will be recommended that the Respondent also cease and desist from in any other manner violating the affected provisions of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The persons named in section I are employers within the meaning of Section 2(2) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging and by threatening, coercing, or restraining by the conduct enumerated in the section above entitled "The conclusions," for the pro- scribed object there set forth, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 5 No findings adverse to the Teamsters are based upon the Sohl and Dionne Incidents of July 31 ; the Bartholomew Incident of August 14; and the Michael incident of August 18, as the General Counsel has failed to establish responsibility on the part of the Teamsters for these events. Also, McElligott's statement concerning a grievance to Taylor of ABG Construction on July 28 as shown by the subsequent events appears to be within the con- cept of persuasion and accordingly no adverse findings are based upon this incident. Philanz Oldsmobile, Inc. and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Case No. 3-CA-1613. June 26, 1962 DECISION AND ORDER On December 12, 1961, Trial Examiner William F. Scharnikow is- sued his Intermediate Report in this case, finding that'the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs. 137 NLRB No. 103. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and finding merit in exceptions of the General Counsel and Charging Party, hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only to the extent consistent with- our Decision herein. 1. The facts in this case are as follows : On March 29, 1961, the Union filed a representation petition seek- ing an election among Respondent's employees. During the following week, the employees told the Union's representative that they felt Respondent was delaying the holding of an election and that they were planning a walkout. Although the representative attempted to dis- courage such action, he notified Respondent's president and its attor- ney of the contemplated strike and urged them to agree to a consent election. Respondent took no action. On April 6, the employees struck and reported their action to the Union's representative who pre- pared a picket sign which carried this legend : This employer refused to consent to allow us to exercise our rights under the National Labor Relations Act. The strikers continued to picket for a week with the above sign. On April 12, they mailed an unconditional application to return to work which was received by Respondent on the following day. Respondent told the strikers that it could only employ two of them at that time,, that it would take back the two with the greatest seniority and would reemploy the others as business conditions improved, but that it would treat all returning strikers as new employees and would require them to file new applications for employment. Respondent contends hat the strikers had engaged in unprotected activity because the strike had an unlawful objective and was un- authorized. Respondent also asserts that strikers were returned to their former jobs as soon as jobs became available; that certain strikers. who were offered jobs refused them; and that other strikers were not offered jobs for nondiscriminatory reasons or because they could not be located. The Trial Examiner found that, as the strikers had entrusted the Union with authority to file the petition for an election, they had no right to act independently to force a consent election, only the Union had such authority; and therefore that the strike was unprotected and the strikers were not entitled to reinstatement. Accordingly, he found that respondent could rightfully refuse to reemploy the strikers. PHILANZ OLDSMOBILE, INC. 869 We find merit in the contention of the Union and of the General Counsel that the strike was a lawful economic strike and therefore protected.' In filing a representation petition the Union sought an election to determine the bargaining representative of Respondent's employees. By striking, the employees sought to achieve the same re- sult, only sooner. There was therefore no inconsistency between the objectives of the strike and of the representation petition. Rather, the action was in support of the Union and had the effect of strengthening its stature .2 Under these circumstances, it is immaterial whether or not the strike was authorized by the Union? Moreover, although the Union at first advised against the strike, it quickly ratified the conduct of the strikers by preparing the picket signs used by the strikers and by calling the Board's Regional Director for help in persuading Re- spondent to agree to a consent election. In New Orleans Roosevelt Corporation,4 the Board held that a strike for the purpose of persuading an employer to agree to a consent election is lawful even though a representation petition is pending be- fore the Board. There is nothing in the Board's Rules or in the Act which prohibits parties from agreeing to a consent election even where a representation petition has been filed at a Regional Office of the Board. The only difference between the New Orleans Roosevelt -case and the present one is that in the former the petitioning union called the strike, whereas in this case the Union did not call but ap- proved or ratified it almost immediately after its start. Ratification is legally equivalent to authorization. There is no basis therefore for the dissent's characterization of the conduct of the employees in calling the strike as in derogation of the authority vested in their agent, the Union, even assuming, arguendo, that if this were so the strike would be unprotected. Further the decision in New Orleans Roosevelt did not rest on the circumstance, as the dissent would have it, that the Respondent in that case may have been anxious to delay an election. In fact, the strike occurred there after hearings on the peti- tion then pending had begun before the Board. There is simply noth- ing unlawful or against public policy in employees striking to exert pressure on an employer to agree to a consent election, any more than it is unlawful for employees to strike for outright recognition or for a collective-bargaining contract when no other union has been certi- 1 Cf N L.R B v. Washington Aluminum Company. Inc, 370 U S. 9 z We agree with the Trial Examiner that cases such as those cited in footnote 2 of the Intermediate Report are inapposite , for the same reasons stated by him We note, in addi- tion, that in those cases the disruption of the bargaining process was found to have re- sulted from the fact that the employees sought by their conduct to bring pressure upon their representative , not upon their employer , because of their dissatisfaction with some action concerning which the decision was within the union's sole authority. 3 See Sunbeam Lighting Company, Inc., 136 NLRB 1248. 4132 NLRB 248. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fied.s Of course strikers who engage in such a strike take the risk that they may lawfully be replaced. But they do not otherwise put them- selves beyond the pale of the law. As we have found that the employees who participated in the walk- out were engaged in protected activity, they could not be deprived of their reinstatement rights solely because of their participation therein. We have thus rejected the basis upon which the Trial Examiner con- cluded that reinstatement was validly refused or conditioned upon application for new employment and upon which he recommended dismissal of the complaint. It therefore becomes necessary for us to examine the facts relating to the reinstatement rights of the individual strikers and the adequacy of the Respondent's offers of reinstatement. 2. Upon the basis of these facts discussed below, we agree with the General Counsel that the unreplaced strikers were discriminated against, in violation of Section 8(a) (1) and (3), by the Respondent's statement and requirement that they must file applications and be rehired as new employees.6 We do not, however, agree with his further contention that all the strikers were entitled to reinstatement on April 12,1961. The facts pertaining to these issues are uncontradicted. Follow- ing receipt of the strikers' unconditional offer to return to work, the Respondent rehired the two employees with the greatest seniority, mechanics Murlin Shaw and Anthony Basso; however, it required them and the other strikers to fill out new employment applications. In the meantime, during the strike, Respondent had hired employees to do work formerly performed by certain of the strikers,' in such jobs as motor tuneup specialist and general mechanic, used-car lot boy and apprentice mechanic, wash and cleanup used cars, lubrication, and car polishers. Thereafter, before any new employees were hired following the abandonment of the strike,' Respondent rehired three additional former strikers.' Beginning on May 1, however, Respondent hired new unskilled service department employees before all the strikers had been rehired. Subsequently the remaining skilled strikers 10 were 6 We are unable to agree with our dissenting colleagues that a strike to induce an em- ployer to agree to an election impairs the consensual nature of such an election . Surely he would not find that a strike to compel economic concessions during contract negotia- tions impairs the voluntary nature of a collective-bargaining contract resulting therefrom. We cannot perceive any distinction between these situations The employer is not com- pelled to make the concessions sought in either instance. 6 Fitzgerald Malls Corporati on, 133 NLRB 877 7 These strikers were Black , Blackwell, Hehnley, Davis, and Stubbs s During the strike, Respondent advertised for skilled employees in the jobs of motor tuneup specialist, hydramatic automatic transmission specialist, front- end specialist, and general mechanic ; although his advertisement was also published on April 24, it appears that no employees were hired as a result thereof, following the end of the strike. 9 Dinaro and Eaddy on April 21, and Bye on May 1. 1O Panzarella was recalled to work on June 26. Dulaney and Gumina were recalled on June 20; Gumina returned to work on July 8, but Dulaney did not accept this offer. PHILANZ OLDSMOBILE, INC. 871 recalled, but the two remaining unskilled strikers 11 were never re- called. It appears'that Respondent's business declined substantially fol- lowing the strike, and although it had approximately 20 employees in its service department prior to the strike, at the time of the hearing on September 7, 1961, Respondent had only some 12 employees in this department. The complement as of the date of the hearing included five former strikers, four nonstrikers, and three new employees. As noted above, new employees were hired to perform the work for- merly done by strikers Black, Blackwell, Davis, Hehnley, and Stubbs, before the employees abandoned the strike, and the record establishes that Respondent's replacement of these strikers prior tQ the end of the strike was permanent. Respondent was under the circumstances en- titled to treat these five strikers as new employees, and was under no obligation to reinstate them or give them preferential hiring status." Blackwell and Davis were later rehired, and there is no evidence that Respondent failed to rehire any of the others for discriminatory reasons. Thus, we find that Respondent did not discriminate against Black, Blackwell, Davis, Hehnley, and Stubbs, and we shall dismiss the complaint as to them. In the case of the employees who were not permanently replaced before the end of the strike, Respondent was under an obligation to reinstate them to their former positions, as work became available and before new employees were hired, unless the refusal to reinstate was for nondiscriminatory reasons, established by Respondent. Respond- ent has established, through uncontradicted evidence, that it learned for the first time, some 2 days after the strike began, that White had been engaged in and continued to be engaged in a competing business during off hours, and that it was for this reason that it did not offer him reinstatement. In these circumstances, we are persuaded that Re- spondent has met the burden of proof that its failure to rehire White was for nondiscriminatory reasons, and we shall dismiss the com- plaint as to him. We also are persuaded on the record as a whole that Respondent rehired Basso, Shaw, Dinaro, Bye, Panzarella, and Eaddy as soon as work became available for them. Consequently, we shall not award them backpay. It is clear, however, that Bailey, a carhop, would have been able to perform work which was available, and Respondent's defense, that it attempted to recall him but could not locate him, was not sub- stantiated by any evidence. We therefore find that Respondent's failure to offer him reinstatement on and after May 1, 1961, at a time when Respondent was hiring new unskilled employees, was discrimina- tory in violation of Section 8(a) (3) and (1). As mechanics Gumina "White and Bailey. 12Bartlett-Collins Company, 110 NLRB 395, 397-398. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Dulaney were offered jobs on June 20, 1961, it is clear that work became available for them at that time. As they refused this offer, it becomes necessary to determine whether their refusal was the result of a conditional offer, as contended by the General Counsel, or for other reasons. It is clear that when Respondent offered Gumina and Dulaney their jobs back, on June 20, it gave them no reason to believe that the condition attached to its earlier offer to all strikers, which we have found herein to be an unlawful condition, had been revoked. Further, all strikers who had been rehired were required to fill out employment applications as new employees. Respondent's disavowal at the hearing of any intent to treat them as new employees, and its assertion that it has not treated strikers as new employees, were not, as far as the record shows, communicated to these two employees. Consequently, we find that as to them, the second offer had attached to it the conditions attached to the first. While the record shows Dulaney asked for time to think the offer over and later said he thought he would stay where he was, and that Gumina after thinking it over decided to go to work at another garage, we are not persuaded that their reaction was independent of, or unconnected with, the condi- tional, discriminatory, nature of the offer to them; nor are we per- suaded that they evidenced a clear intent to abandon any rights of reinstatement with Respondent. Indeed, Gumina's return to work on July 8 may be regarded as evidence to the contrary. Accordingly, we find that Respondent discriminated against Dulaney and Gumina in violation of Section 8 (a) (3) and (1), when, on June 20, 1961, it failed to offer them unconditional reinstatement at a time when work was available for them. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above, which have been found to constitute unfair labor practices, occurring in connection with the operations of the Respondent as described in section I of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and comlerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Except for the requirement that they fill out new employment applications, it does not appear that the Respondent has otherwise discriminated against employees who were on strike and who were reinstated. There is, however, no assurance that the rights of the PHILANZ OLDSMOBILE, INC. 873 strikers may not be jeopardized in the future in the event of layoff or other action which is dependent upon a computation of their length of service. Accordingly, we shall order the Respondent to give no effect to the employment applications filed by all strikers, except those strikers found herein to have been lawfully replaced or dis- charged, and in all respects treat them as if their employment had not been interrupted by the strike. As we have found that the Respondent unlawfully failed and re- fused to offer unconditional reinstatement to employees Bailey, Dulaney, and Gumina, when jobs were available, we shall order it to offer Bailey and Dulaney immediate and full reinstatement, each to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging if necessary any replacements in order to provide work for him. We shall also order it to make them and Gumina whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which each nor- mally would have earned as wages from the date of the discrimination (May 1, 1961, in the case of Bailey, and June 20, 1961, in the cases of Dulaney and Gumina) to July 8, 1961, in the case of Gumina, and to the date of Respondent's unconditional offer of reinstatement in the cases of Bailey and Dulaney '13 less the net earnings of each, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company.14 Upon the basis of the foregoing and the entire record, the Board hereby makes the following : CONCLUSIONS OF LAW 1. Respondent, Philanz Oldsmobile, Inc., Rochester, New York, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By its statement and requirement that economic strikers must file applications and be rehired as new employees and its refusal and fail- ure to reinstate unconditionally economic strikers, as found herein- above, Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging protected concerted activity on behalf of the above labor organization, and has thereby also engaged and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) and (3) of the Act. 13 A P.W. Products Co., Inc., 137 NLRB 25. 14 90 NLRB 289. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, Philanz Olds- mobile, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Announcing, maintaining, or otherwise giving effect to any policy of requiring new employment applications from economic strikers, or treating those strikers who have not been permanently replaced prior to the abandonment of an economic strike as new employees. (b) Discouraging membership in and activity on behalf of Inter- national Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America., AFL-CIO, or in any other labor organiza- tion of its employees, by reprisals for engaging in an economic strike ,or refusal to reinstate economic strikers, at a time when work is avail- able and following their unconditional abandonment of the strike, or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will -effectuate the policies of the Act : (a) Rescind its policy that economic strikers file applications and be rehired as new employees, give no effect to any such applications, and treat such strikers, with the exception of those who were perma- nently replaced prior to the abandonment of the strike, or lawfully dis- charged, as if their employment had not been interrupted by the strike. (b) Offer to James Bailey and Burl Dulaney immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (c) Make whole James Bailey, Burl Dulaney, and Matthew Gu- mina in the manner set forth above in the section entitled "The Remedy" for any loss of pay each may have suffered by reason of the Respondent's discrimination against him. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Decision and Order. PHILANZ OLDSMOBILE, INC. 875 (e) Post at its garage and used-car lot in Rochester, New York, copies of the notice attached hereto marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt ,thereof, and be maintained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Third Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. IT IS HEREBY FURTIIER ORDERED that the complaint be and it hereby is dismissed insofar as it alleges that the Respondent discriminatorily refused to reinstate Black, Blackwell, Davis, Hehnley, Stubbs, and White. MEMBERS RODGERS and LEEDOM, dissenting : We dissent from the conclusion of the majority that the strike was, in effect, authorized by the Union, and from their further conclusion that the strike was a protected activity. The Trial Examiner has found that the strike was unauthorized and no party has excepted to that finding. Indeed, the General Counsel and the Charging Party argue in their briefs from the premise that the strike was unauthorized. Thus, our colleagues are deciding an issue which the parties themselves do not regard as being in the case. This, we would not do. Moreover, assuming the question of authorization were in issue be- fore us, we cannot agree that the Union ratified the strike, so that it ,can be considered as an authorized strike. Our colleagues accord no weight to the fact that the Union not only did not initially call the strike, but in fact opposed it. In the light of such opposition, the Union's subsequent conduct falls far short, in our opinion, of what our colleagues describe as conduct tantamount to ratification. We think it more realistic to say that the Union's purpose was to secure an elec- tion without resorting to strike action, and that the object of its con- duct throughout the strike was to end it as quickly as possible, before the employees were replaced and the Union's support thereby dis- sipated. Indeed, some of the employees were in fact replaced during the strike, thereby serving to weaken rather than strengthen the Union's status. Thus, there is no warrant in the record for finding ratification, either on the basis of the Union's conduct, or on some 15 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be 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." 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD theory of objectives supposedly commonly shared by the employees and the Union.1° As to the only issue concerning the strike which in our opinion is properly before the Board-whether an unauthorized strike to compel an employer to agree to a consent election is protected-we would for the reasons fully explicated by the Trial Examiner in his Intermediate Report, find that the strike was unprotected. Moreover, we would confine New Orleans Roosevelt, supra, on which the majority relies in part, to the facts therein, namely, an authorized strike to compel a respondent to agree to a consent election when it was engaged in a deliberate attempt to delay the holding of a representation election. In the instant case it is clear that when the employees struck, there had been no undue delay in holding the election, and there is no evi- dence that Respondent was seeking any unwarranted delay. Under these circumstances it would in our view, even had the strike been authorized, have made a mockery of the Board's consent-election pro- cedure to hold the objective protected and, in effect, have taken the word "consent" out of such procedure. Further, it is our view that, where, as here, such a strike is unauthorized and the employees do not elect to withdraw their designation of the Petitioner, which seeks a Board-directed election pursuant to these designations, such strike is tantamount to a strike in derogation of the authority vested by such employees in their representative and is, accordingly, unprotected. For all the foregoing reasons, we would dismiss the complaint in its entirety. io See in this connection our dissent from the similar position taken by our colleagues in Sunbeam Lighting Co., supra. APPENDIX NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify our employees that : WE WILL NOT announce, maintain, or otherwise give effect to our policy of requiring new employment applications from eco- nomic strikers or treating those strikers who have not been permanently replaced prior to their abandonment of an economic strike as new employees. WE WILL NOT discourage membership in and activity on behalf of International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, AFL-CIO, or any other labor organization of our employees, by announcing, main- taining, or otherwise giving effect to our policy of requiring employment applications from economic strikers or treating PHILANZ OLDSMOBILE, INC. 877 those strikers who have not been permanently replaced prior to the abandonment of an economic strike as new employees, by refusal to rehire economic strikers at a time when work is avail- able, or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL rescind our policy that economic strikers file applica- tions and be rehired as new employees, will give no effect to such applications, and will treat such strikers, with the exception of those who were permanently replaced prior to the abandonment of the strike, as if they had worked during the strike. WE WILL offer to James Bailey and Burl Dulaney immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make whole James Bailey, Burl Dulaney, and Matthew Gumina for any loss of pay each may have suffered by reason of our discrimination against him. PHILANZ OLDSMOBILE, INC., Ernployer. 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. Employees may communicate directly with the Board's Regional Office, 112 U.S. Courthouse Building, 68 Court Street, Buffalo, New York, Telephone Number, Tl. 4-4780, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in this case alleges that, on and since April 14, 1961, the Respondent committed unfair labor practices affecting commerce within the meaning of Section 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as. amended (29 U.S.C., Sec. 151, et seq.), herein called the Act, by (a) informing 15 named employees, who had engaged in a strike and had unconditionally applied for reinstatement, that they would be rehired or reinstated only as new employees; and (b) thereafter failing and refusing to reinstate these employees to their former or sub- stantially equivalent jobs because they had joined or assisted the Union, engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and had participated in the strike. In its answer, as amended before the hearing, the Respondent generally denies the commission of the unfair labor prac- tices thus alleged in the complaint, and further asserts that it either replaced, rein- stated, or offered reinstatement to every one of the employees named in the com- plaint except one, who "could not be contacted and is believed to be out of town." Pursuant to notice, a hearing was held in Rochester, New York, on September 6 and 7, 1961, before Trial Examiner William F. Scharnikow. The General Counsel, the Respondent, and the Union appeared by counsel and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Since the hearing, the General Counsel and counsel for the Respondent have submitted briefs on the issues. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Philanz Oldsmobile, Inc., is a New York corporation engaged in the sale and service of new and used automobiles at its principal office and place of business in Rochester, New York. During the year preceding the issuance of the complaint, the Respondent sold and distributed products of a value in excess of $500,000. During the same year, the Respondent received goods of a value in excess of $50,000 directly from points outside New York State. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, is a labor organization within the meaning of the Act- III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts On March 29, 1961, the Union filed a petition for certification as the exclusive bargaining representative of the Respondents service department employees under Section 9(c) of the Act. Within the following week, a group of these employees told the Union's representative, Edward Halter, they felt the Respondent was delaying the holding of a representation election and that they were planning a walkout. Although Halter discouraged any such action, on April 5, 1961, he notified both Phillip Lanzatella, the Respondent's president, and Manuel Goldman, its attorney, of the employees' plan and urged them to agree to a consent election. Goldman said he had been busy and suggested a meeting with Halter the following Monday, April .10. But at noon on Thursday, April 6, 15 of the Respondent's 21 service department employees left their work without giving notice to the Respondent, and, going immediately to the Union's office, told Halter what they had done. Halter -tele- phoned the Board's agent who was handling the representation case, informed him that the employees "had stopped work and gone on strike in order to bring about an election," and asked the Board's agent to persuade the Respondent "to show . a desire to want to move on this thing," so that "the fellows would go back to work." On April 7, the day following the walkout, and for about a week thereafter, the men picketed the Respondent's shop and salesroom with a sign which was prepared by Union Representative Halter and which read, "This employer refuses to consent to allow us to exercise our rights under the National Labor Relations Act." On Thursday, April 14, all .15 of the employees who had walked out the preceding Thursday, signed and mailed to the Respondent a statement that "Each of the under- signed agrees to return to work immediately." On the following day, they visited the Respondent's president, Phillip Lanzatella. Lanzatella, who had by this time received their application to return to work, told the men that the strike had hurt his business; that "business had gone bad to the point that he could only use two [of the men] at the present -time"; that the Respondent "would take them back as business war- PHILANZ OLDSMOBILE, INC. 879 ranted"; but that the Respondent "would treat them as new employees" and would require them to file new applications. From the uncontradicted and credible testimony of President Lanzatella and Service Manager David Johnson, it appears that the walkout occurred just before the Respondent's business would normally have increased during the spring and summer seasons; that the walkout not only made at extremely difficult for the Re- spondent to complete the work it had in its shop but made it necessary for it to turn new work away; that, in an effort to handle its work and keep its business, the Respondent hired 1 new mechanic and 4 new unskilled workers before the strikers had applied for reinstatement and then, over the next few months, also took back 9 of the strikers, i.e , the janitor, a body man, 5 of the 7 mechanics, and 2 of the 6 unskilled workers who had walked out; that, for short periods, it also hired 6 new unskilled workers; that, in spite of its effort to resume and retain its business and as a clear result of the walkout, the Respondent's monthly business and gross billings in the 5 months following the walkout and preceding the hearing, had dropped to one-third of what they had been and should have been during this period; and that, in consequence, the Respondent's actual and necessary service staff had been re- duced from 21 before the walkout to 14 at the time of the hearing. In the course of recalling only the nine strikers whose services it says it needed in view of the sharp drop in the volume of its business, the Respondent required them to file new applications for employment, although President Lanzatella testified that the Respondent has since respected their vacation and other previous employee rights and has treated them exactly as if their employment had not been interrupted. As has been noted five of the seven striking mechanics,, the body man, and three of the seven unskilled strikers (including the janitor) were returned to work. Two of the mechanics (Shaw and Basso) were almost immediately taken back after they applied for reinstatement, but the other three mechanics, the body man, and the three unskilled workers were recalled to work only on later dates. Of the two striking mechanics who were not returned to work, one of them (Daniel Black) was not recalled and the other (Burl Dulaney) although recalled on June 21, refused the offer. The following summary sets forth, in the case of each of the 15 strikers, the general nature of his work, the date of his original hire by the Respondent, and the Respondent's action, if any, with respect to his return to work and the continuity of his employment by the Respondent up to the time of the hearing: 1. Murlin Shaw, mechanic, hired on February 7, 1956, recalled on April 15, 1961, but discharged on April 28,1961. 2. Anthony Basso, mechanic hired on February 20, 1956, recalled on April 15, 1961, and still in Respondent's employ. 3. Philip Denaro, mechanic, hired on February 28, 1958, recalled on April 21, 1961, and still in Respondent's employ. 4. Matthew Gumina, mechanic, hired on August 3, 1959, recalled on July 8, 1961, and still in Respondent's employ. 5. Daniel Black, mechanic, hired on October 5, 1959, and not recalled. 6. Burl Dulaney, mechanic, hired on October 30, 1959, recalled on June 20, 1961, but did not return to work. 7. Richard Beye, mechanic, hired on March 13, 1961, recalled on May 1, 1961, and still in Respondent's employ. 8. Sam Panzarella, body man, hired on December 21, 1959, recalled on June 26, 1961, but discharged on August 1, 1961. 9. Jerily Eaddy, janitor, hired on March 22, 1961, recalled on April 21, 1961, and still in Respondent's employ. 10. John Blackwell, unskilled, hired on June 11, 1957, recalled on July 6, 1961, but discharged on August 1, 1961. i11. John Davis, unskilled, hired on July 31, 1957, recalled on July 7, 1961, but discharged on July 18, 1961. 12. Melvin White, unskilled, hired on August 20, 1957, and not recalled. 13. Ben Stubbs, unskilled, hired on September 20, 1960, and not recalled. 14. Charles Hehnly, unskilled, hired on December 28, 1960, and not recalled. 15. James Bailey, unskilled, hired on March 13, 1961, and not recalled. B. Conclusions The General Counsel and the Union argue that the walkout or strike of these 15 employees was a concerted activity protected by Section 7 of the Act; that, in hiring the 5 new employees before the strikers made their unconditional application for reinstatement, the Respondent did not fill the specific jobs, nor therefore effect the permanent replacement, of particular strikers; and, as a result, that upon making application, all 15 of the strikers were entitled to immediate and full reinstatement. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon this base, the General Counsel and the Union contend that the Respondent discriminated against the strikers in violation of Section 8 (a) (1) and (3) of the Act, by refusing to permit any of them to return to work except as new employees, by delaying the recall of six of the nine strikers whom it did take back to work, and by failing and refusing to make an unconditional offer of reinstatement to the remain- ing six strikers. The Respondent disputes the General Counsel's contention that the walkout was a concerted activity protected by the Act and denies that the men were entitled to reinstatement. It contends, in its answer to the complaint, in its brief, and in the arguments made by its counsel at the hearing, that the 15 men in effect terminated their employment with the Respondent by leaving their jobs on April 6 without the Union's approval and without prior notice to the Respondent of their intention and objective. In addition the Respondent contends that it took back the strikers when, and as, it needed their services for the reduced volume of its work following their walkout; that it has in fact respected the continuing employee rights of the men whom it has recalled to work; and that, with the exception of Bailey whom it could not locate, "all [of the strikers] were either reinstated, refused recall, or replaced" by the time of the hearing. According to the Respondent, it has thus acquitted itself of its obligations to the 15 strikers even should the Board conclude that their walkout was protected. To support its primary position that the 15 strikers in the present case were not entitled to reinstatement, the Respondent relies in part upon the decision of the Fourth Circuit Court of Appeals in N.L.R.B. v. Washington Aluminum Company, Inc., 291 F. 2d 869, setting aside 126 NLRB 1410 and 128 NLRB 643. In that case, the court, in disagreement with the Board, held that a walkout of employees without prior notice to the employer of their intention and objective, was not protected by the Act and accordingly set aside the Board's Order requiring the employer to rein- state the strikers. It appears, however, that the Board is still disposed to adhere to its original decision holding the walkout to be a protected concerted activity, and, citing a conflict between the Fourth Circuit's decision with that of the Sixth Circuit in the Southern Silk Mills case,' has a filed petition for a writ of certiorari which is presently pending before the Supreme Court. (Docket No. 464, October 1961 term, petition filed on October 2, 1961.) Under the circumstances, I must respect- fully decline to follow the decision of the court in the Washington Aluminum case, and must respect and follow the continuing position of the Board and that of the Sixth Circuit Court of Appeals in the Southern Silk Mills case. Accordingly, I reject the argument of the Respondent that the walkout in the present case was unprotected simply because the strikers did not notify the Respondent before they walked off their jobs, of their intention to do so, and the reason for their action. There still remains for consideration the Respondent's further argument that the 15 employees' walkout was unprotected under the circumstances of the present case, because it was neither authorized nor approved by the Union. In making this argu- ment during the hearing, Respondent's counsel referred to the walkout as unprotected "wildcat" action on the part of the employees. But, as it has been used by the Board and the courts, this term does not accurately describe the walkout of the Respond- ent's employees. For the "wildcat" strikes or walkouts with which the Board and the courts have dealt, have been strikes or walkouts of employees, unauthorized by their currently established, exclusive bargaining representatives, and, as a matter of policy have been held to be unprotected by the Act because they disrupted the smooth operation of the bargaining process of the employer with the statutory bar- gaining representative which the Act was intended to substitute for industrial strife? This, of course was not the precise situation in the present case and the decisions of the Board and the courts with respect to "wildcat" strikes are, strictly speaking, not apposite to the present case. But this does not dispose of the substance of the Respondent's argument that the unauthorized walkout of the Respondent's employees to force a consent election agreement should also, as a matter of policy, be held to be unprotected by the Act So far as I can determine, the matter is one of novel impression, although the Board has recently held in New Orleans Roosevelt Corporation, 132 NLRB 248, that a strike or walkout to force the employer to agree to a consent election in a pending representation case, is protected when the strike or walkout has been authorized and directed by the union which filed the petition. But neither the Board nor the courts have considered the propriety of a spontaneous, unauthorized employee- i N L R.B v. Southern Sslk Mills, Inc., 209 F. 2d 155, rehearing denied 210 F. 2d 824, cert denied 347 U S 976. See N L.R B. v Draper Corporation, 145 F. 2d 199 (C A. 4) ; Harnischfeger Corpora- tion v N.L R B , 207 F. 2d 575 (C.A. 7) PHILANZ OLDSMOBILE, INC. 881 walkout to compel the employer to consent to an immediate election and the elimina- tion of a hearing, after the union which is the apparent choice of the striking em- ployees has filed a petition for certification under Section 9(c) of the Act. This is the precise situation in the present case and, in my opinion, there are important con- siderations of policy which require a holding that such a walkout is not protected by the Act. Section 9(c) of the Act provides orderly and peacable procedures for the de- termination of all questions concerning the representation of employees under the Act. Although the Act does not ordinarily preclude the establishment of a union's representative status in some other satisfactory manner,3 it is clear that, once a petition has been filed under Section 9(c), the Board has the power and the obliga- tion not only to decide the question of representation in accordance with the statutory provisions and the congressional objectives prompting their enactment, but also to regulate the use of the processes in accordance with these provisions and objec- tives, and to protect them against abuse.4 Furthermore, employees like the striking employees in the present case, who are apparent supporters of the representation claim of a union which has filed a petition under Section 9(c), must be assumed at least to have authorized the Union's filing the petition and pursuing the course pre- scribed by that section of the Act. It is true that the procedures thus prescribed con- template the possibility, under Section 9(c)(4) of the Act and Section 102.62 of the Board's Rules and Regulations, of a "waiving of hearing for the purpose of a con- sent election." But it is equally clear from the situation and from the Board's Regulations that, so far as the employees are concerned, the power and authority to conduct the representation proceeding and to decide whether a consent-election agree- ment should be sought and, if so, the manner in which it should be sought, have been entrusted to the petitioning union. To give any other construction to the pro- visions governing representation proceedings would not only be unreasonable but would invite strikes, such as that which occurred in the present case, which in the responsible judgment of the unions are unnecessary, and which therefore defeat the purposes for which Section 9 was enacted by the Congress. For these reasons, it is my opinion that, as a matter of policy dictated by the provisions of Section 9 of the Act and the apparent congressional objectives underlying these provisions, a strike or walkout to compel an employer to enter a consent-election agreement in a pend- ing representation case, is protected under the Act only if it has been authorized by the union which has filed the representation petition. (See the New Orleans Roose- velt decision of the Board, supra ) Accordingly, I conclude that such unauthorized walkouts to compel a consent election as occurred in the present case, are unpro- tected by the Act and the strikers are not entitled to reinstatement. Since I have concluded that the walkout of the Respondent's employees was un- protected by the Act, it follows that they were not entitled to reinstatement, that the Respondent did not commit the unfair labor practices alleged by the complaint either by informing the strikers that they would be taken back to work only as new employees or by failing or refusing to take some of them back, and that the com- plaint should therefore be dismissed. In reaching these conclusions, I have found it unnecessary to pass upon the Respondent's alternative defense that, following the strikers' applications for reinstatement on April 15, 1961, the Respondent did in fact either reinstate or offer reinstatement to all of the strikers for whose services it had any need in view of the reduced volume of its business. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Philanz Oldsmobile, Inc., is engaged in commerce within the meaning of the Act. 2. The Respondent has not engaged in unfair labor practices within the meaning of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that the complaint herein be dismissed in its entirety. 8 See United Mine Workers v Arkansas Oak Flooring Co, 351 U S. 62, 74-75, L'kco Products Company (Sta-Brite Division), 117 NLRB 137, 141-142, 188-189 4 See Elko P,odacts Company (Sta-Brite Division), supra, at 190-191, and cases therein cited 649856-63-vol. 13 7-5 7