Pierotti Motors

PIEROTTI MOTORS 257 Henry Pierotti, Jr., d/b/a Pierotti Motors and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546. Case 20-CA-4183. May 2,1967 DECISION AND ORDER Union, on August 4, 1966,1 the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint on October 4, alleging 8(a)(5) and (1) violations by Henry Pierotti, Jr., d/b/a Pierotti Motors, herein Respondent. The hearing was held before me pursuant to due notice on December 19. The parties fully participated. Their briefs have been considered.2 Upon the entire record in the case and from my observations of the witnesses, I make the following: On March 2, 1967, Trial Examiner E. Don Wilson issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the. Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Henry Pierotti, Jr., d/b/a Pierotti Motors, Fremont, California, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. 'These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted After a careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner : Upon a charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546 , herein the i Herein all dates unless otherwise specified refer to 1966 2 Their joint motion to correct the transcript is granted. 3 In making findings herein I have generally credited the testimony of Manuel Francis and C L McMonagle, each of whom impressed me as an honest witness I was unfavorably impressed by the demeanor of Henry Pierotti, Jr He endeavored in his testimony to satisfy not so much the interests of truth but rather to FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material , Respondent has been a sole proprietorship engaged in the retail business of selling new and used automobiles , and servicing automobiles, with a place of business located at Fremont, California. In the course and conduct of his business in the past year his gross sales exceeded $500,000. So, also, he purchased and received goods from outside California , having a value in excess of $50,000. Respondent at all times material has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material the Union has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES3 A. The Issues (1) Did Respondent unlawfully refuse to bargain with the Union? (2) Was the strike called by the Union against Respondent an unfair labor practice strike? B. The Appropriate Unit All employees of Respondent, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. C. The Majority There were six employees in the appropriate unit, Hamilton, Hubbard, LaComba, Dorry, May, and Matz. In June, Francis, the Union's business agent, began an organizing drive. He discussed the Union and the possibility of a contract with the employees. In early July, Francis distributed authorization cards to the employees. The cards authorized the Union to act as the employees' "representative for collective bargaining." On July 5, Francis obtained signed cards from May and Hamilton. He obtained signed cards from Dorry and Hubbard on July 7. LaComba was already a member in serve what he considered his self interest Frequently, his answers to simple questions were not direct but consisted of volunteering testimony Although he testified he doubted the Union's majority, he also testified that all of his employees "belonged to the Union," after July 15, and "They were already in the union." I do not credit Pierotti's testimony where it is contradicted 164 NLRB No. 32 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good standing of the Union and Francis did not obtain a card from him. Thus, as of July 7, the Union represented 5 of the 6 employees in the unit for the purposes of collective bargaining. On July 8, Francis wrote to Respondent, advising him that the Union represented a majority of Respondent's employees and offering to prove the majority by means of a check by a third party. Francis demanded recognition and a date for a meeting. Pursuant to Respondent's reply, July 15 was fixed as a date for a meeting between Respondent and the Union. On July 15, Francis and another union representative, McMonagle, met with Respondent. They said they were prepared to prove their majority. Francis gave Respondent each of the four authorization cards and a letter from the Union's financial secretary verifying the fact that LaComba was a member in good standing of the Union. Respondent examined each document. Francis asked him if he questioned the Union's majority status. Respondent said no, based on the cards and the letter "it looked as though we represented the majority of his people." Francis then gave Respondent copies of the collective-bargaining agreement the Union had with an association and also one with independents. Francis told Respondent he could join the association so far as the Union was concerned. Respondent replied he wanted nothing to do with the Association and an independent agreement would have to be negotiated if the Union were to negotiate with him. Francis then gave Respondent copies of the health and welfare and pension plans, explaining costs, how they worked and the entire matter. Respondent asked if he would have to hire through the union hall. Francis explained. Respondent said he was going on vacation for a couple of weeks and then for the first time mentioned a Board election. Francis explained the Union already represented the majority and Respondent had recognized the Union and since it represented the majority there was no need for a Board election. Respondent said he wanted time to look at the documents the Union left with him and wanted a couple of days after the first of August when he would return from his vacation. Respondent set up the date of August 3 to meet with the Union. Francis left Respondent and went to the shop, advising the employees that there would be no problem and that Respondent was cooperative and agreeable and as soon as he returned from vacation they could negotiate a contract. As soon as Francis left, he returned to his office and dispatched a letter to Respondent, giving a resume of the events of that day. The letter was received in due course. Respondent did not reply to it. Respondent testified he saw it about August 5 and then said it was not until September. I find he was not frank about the letter but I find insufficient probative evidence that he personally received it by August 3. On August 3, Francis, alone, met with Respondent in the latter's office. Respondent said he had looked over the documents and "everything" and wasn't about to sign a union agreement. When Francis asked if he had any doubt that the Union represented a majority, Respondent replied that majority had no bearing on the matter, he was not going to have a union in the shop. He added that he did not care about his employees' rights in requesting a union. He said he was running the shop and "if the employees didn't like it, they could go to work elsewhere. They could pack up their gear and go to work somewhere else." Francis stated he had no alternative but to picket. Respondent became irate and raised his voice. Francis walked out and advised some of the employees that Respondent had refused to sign a contract and he would have to set up a picket line; he would like them to respect it. The employees said they would respect the picket line. Five or ten minutes later, Francis-returned with a picket but decided again to speak to Respondent to see if the difficulties could not be settled. Francis and a union representative named Cardahan spoke to Respondent.' Respondent said he did not want a union in the shop and he was not about to sign any union agreement and he became agitated in discussing an airline strike. He added that if the employees didn't like the conditions in the shop they could work elsewhere and he would not have a union. The union representatives said they had no alternative but to picket and they did so. Within three-quarters of an hour, five of the six employees walked out. Matz signed an authorization card and walked out the next day. Still on August 3, Respondent came to the picket line and Francis asked him if he would negotiate. Respondent said he wanted nothing to do with it. Also, on August 3, Respondent filed a petition for an election which he subsequently withdrew. Respondent bases his doubt of the Union's majority on the suggestion that "I noticed my men started getting a little nervous and tense." No employee told him in so many words that he did not choose the Union as his bargaining representative by means of authorization cards or other action. Respondent testified he did not believe all his employees who walked out when the picketing began, supported the Union because they did not carry picket signs.5 Respondent testified LaComba and Hubbard stated they were not interested in the Union but added there was nothing specific but it was "just a feeling." As of July 15, no employee told Respondent he was not interested in union representation. Suggestions earlier or later did not dissipate Respondent's recognition that a majority of his employees had chosen the Union as their bargaining representative on July 15. Concluding Findings On July 15, Respondent examined four authorization cards signed by four of his six employees and a letter from the financial secretary of the Union, certifying that a fifth employee was a member in good standing of the Union. Respondent recognized the Union as majority representative when he stated, thereupon, that it looked as though the Union represented a "majority of his people." Thus, the Union became the collective-bargaining representative of Respondent's employees in an appropriate unit. It was an unlawful refusal to bargain for Respondent to withdraw its recognition of the majority representative on August 3. That the Union was not I do not credit the testimony of Leo Mmank where it conflicts had "already done this That isn't necessary We already have with that of Francis In any circumstance , Minank remembered these signed " He heard Respondent say, "All right , maybe you Respondent saying Francis "may have had these cards, and have, but I want a secret ballot as I had before " although these cards may have been what they said they were, he Such is not at all inconsistent with union representation wanted to know, he wanted a vote " He heard Francis say they PIEROTTI MOTORS certified is immaterial. Respondent had no good-faith doubt as to the Union's status on July 15. Nothing took place between July 15 and August 3, which would have afforded Respondent a good-faith doubt. Indeed it should have been made even more clear to Respondent that the Union represented a majority of his employees when he saw five of his six employees on strike on August 3 and six of his six employees on strike on August 4. It is abundantly clear that the picketing and the strike of the six employees was caused by Respondent's unlawful refusal to bargain and that the strike was an unfair labor practice strike. Respondent manifested his bad faith when he repudiated the card checks he had made, and insisted on an election. This Respondent not only accepted the cards and letter as proof of majority, but also he examined proposed contracts and health and welfare and pension plans. He commenced bargaining negotiations. Indeed, Respondent told Francis on August 3, "that he had looked over the documents and everything and he wasn't about to sign any agreement." He insisted he would have no union in the shop. This was a clear repudiation of the principles of collective bargaining. The record makes clear that immediately after Respondent's refusal to bargain with the Union on August 3, Francis told Respondent's employees that Respondent refused to sign a contract. Francis said he was setting up a picket line and he wanted the employees to respect it. The picket line was established. Five employees left work and went on strike. The sixth went on strike the next day. This strike was caused and prolonged by Respondent's unlawful refusal to bargain with the Union. It was an unfair labor practice strike. The strikers were unfair labor practice strikers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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 violations of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The nature of the violations strikes at the heart of the Act and calls for a broad order. As it has been found that Respondent's unfair labor practices caused and prolonged the strike of August 3,I shall recommend that upon unconditional request by or on behalf of any employee who went on strike, Respondent immediately reinstate such employee to his former, or substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging, if necessary to effect such reinstatement, any employee who has been hired since the strike began; that in the event of a failure or refusal by Respondent to reinstate any striker entitled to reinstatement, as provided herein, Respondent make such striker whole for any loss of pay he may suffer by reason of such failure or refusal, together with interest at the rate of 6 percent per year; and that such loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth 259 Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW (1) At all material times Respondent has been an employer within the meaning of the Act. (2) At all material times the Union has been a labor organization within the meaning of the Act. (3) All employees of Respondent, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. (4) At all material times the Union has been the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. (5) By failing and refusing to bargain collectively with the Union as found above, Respondent has violated Section 8(a)(5) of the Act. (6) By interfering with, restraining, and coercing employees in the exercise of their Section 7 rights, as found above, Respondent has violated Section 8(a)(1) of the Act. (7) The strike which began on August 3 was an unfair labor practice strike. The strikers are unfair labor practice strikers. (8) The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that Respondent, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages and other conditions of employment with the Union as the exclusive bargaining representative of the employees in the unit hereinabove found appropriate. (b) In any manner interfering with the efforts of the Union to bargain collectively with Respondent, or in any manner interfering with, restraining, or coercing employees in their Section 7 rights. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the above-described appropriate bargaining unit, with respect to their rates of pay, hours of employment, wages, and other conditions of employment, and if an agreement is reached embody it in a signed contract. (b) Upon request by or on behalf of any employee who went on strike on or after August 3, immediately reinstate such employee to his former, or substantially equivalent, position, without prejudice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement, any employee hired since Respondent committed unfair labor practices on August 3, and in the event of a failure or refusal to reinstate any striker entitled to reinstatement as provided herein, make such striker 298-668 0-69-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole in accord with the section of this Decision entitled "The Remedy." (c) Preserve until compliance with any order for reinstatement or backpay made by the Board in this proceeding is effectuated, and, upon request, make available to the Board and its agents, for examining and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant of a determination of backpay and reinstatement rights provided under the terms of such order. (d) Post at its place of business in Fremont, California, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 20 of the Board, shall, after being signed by a duly authorized representative of Respondent, be posted by him immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in such conspicuous places. Respondent shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days of the receipt of this Decision and Recommended Order, what steps Respondent has taken to comply therewith.' IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the receipt of his copy of this Decision and Recommended Order, Respondent notify the Regional Director that he will comply with the foregoing recommendations, the Board issue an order requiring Respondent to take the action aforesaid. 6 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 1 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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, upon request, bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1546, as the exclusive bargaining representative of a bargaining unit consisting of all of our employees, a bargaining unit consisting of all of our employees, excluding our office clerical employees, salesmen, guards, and supervisors as defined in the Act. WE WILL NOT by refusing to bargain as required above or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights as guaranteed by Section 7 of the Act. Our employees are free to join or not join a union of their choice. We will not in any way interfere with their freedom to do so. WE WILL, upon request, by or on behalf of any' employee who has gone on strike since August 3, immediately reinstate such employee to his former, or a substantially equivalent, position, without prejudice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement, any employee hired since we committed our unlawful refusal to bargain on August 3, and in the event of an unlawful refusal or failure to reinstate any striker entitled to reinstatement as provided herein, we will reimburse or pay such striker for any loss of pay he may suffer by reason of such failure or refusal. HENRY PIEROTTI, J R., D/B/A PIEROTTI MOTORS (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.