Friendly Ford

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Ford Sales, Inc , d/b/a Friendly Ford (formerly d/b/a Paul Johnson Ford ) and International Association of Machinists and Aerospace Workers, AFL-CIO, Dis trict Lodge No 87 Case 20-CA-5585 May 22, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, Dis trict Lodge No 87, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint dated June 4, 1969, against Valley Ford Sales, Inc , d/b/a Friendly Ford herein called the Respondent, alleg- ing that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent With respect to the unfair labor practices, the com- plaint alleges, in substance, that on February 12, 1969, a majority of the employees, in a unit found appropriate by the Acting Regional Director for Region 20 of the Board,' in a secret-ballot election conducted under the supervision of the Regional Director for Region 20, of the National Labor Relations Board, designated and selected the Union as their representative for the purpos- es of collective bargaining, and on February 20, 1969, said Regional Director certified the Union as the exclu- sive collective-bargaining representative of the employ- ees in said unit The complaint further alleges that since on or about May 6, 1969, and at all times thereafter, the Respondent did refuse, and has continued to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees On or about June 7, 1969, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint, presenting an affirmative defense, and requesting that it be found not to have violated the Act On August 12, 1969, the General Counsel filed with the Board a Motion for Summary Judgment alleging that there are no factual issues which would warrant a hearing Thereafter, on August 15, 1969, the Board issued an order transferring proceeding to the Board and notice to show cause On August 19, 1969, the Respondent filed its opposition to motion for summary judgment 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 Upon the entire record in this case, the Board makes the following ' Decision and Direction of Election issued January 3 1969 in Case 20-RC-8363 (not printed in NLRB volumes) Rulings on the Motion for Summary Judgment Pursuant to a petition filed on September 25, 1968, by the Machinists, seeking to represent certain employ- ees of the Respondent, a hearing was held on October 16, 1968 On January 3, 1969, the Acting Regional Director for Region 20 issued a Decision and Direction of Election finding the following unit of employees appropriate and directing an election All new car, used car, fleet and truck department salesmen employed at the Employer's Fresno, Cali- fornia operations, excluding all other employees, guards and supervisors as defined in the Act The Respondent's request for review of this decision was denied by telegraphic order of the Board on January 30,1969 On February 12, 1969, pursuant to the Decision and Direction of Election, an election was held among the employees in the unit described above, to determine whether or not they desired to be represented for collec- tive-bargaining purposes by International Association of Machinists and Aerospace Workers, AFL-CIO, Dis- tract Lodge No 87 The tally of ballots showed that 11 votes were cast for the Union, 4 against the Union, and 5 were challenged Thereafter, a certification of representative was issued to the Union on February 20, 1969 By a letter dated April 17, 1969, the Union requested the Respondent to bargain collectively The Respondent refused by a letter dated May 6, 1969 On May 13, 1969, the Union filed the charge upon which the com plaint herein was predicated In its memorandum of points and authorities in opposi- tion to motion for summary judgment, the Respondent contends in substance that (1) the petition filed in Case 20-RC-8363 should have been dismissed on the ground that it was not signed by an authorized representative of the Petitioner, (2) the Regional Director erred in failing to dismiss the petition for failure to encompass the appropriate bargaining unit, (3) the conduct of the hearing resulted in prejudicial error by virtue of the Hearing Officer's refusal to strike testimony regarding the contents of rules of the Petitioner, such testimony not being the best evidence, and (4) the Petitioner is creating the possibility of labor strife by splintering the bargaining units Respondent's contentions seek to relitigate conten- tions made prior to and rejected in the Regional Director's decision in Case 20-RC-83632 and in the Board's denial of Respondent's request for review of that decision Inasmuch as Respondent has already liti- gated such contentions, it has not raised any issue which is properly triable in this proceeding 3 ' We have again examined the Decision and Direction of Election in Case 20-RC-8363 and made an independent review of the record of the hearing in the representation case and conclude that the Regional Director s findings were correct 3 E Z Davies Chevrolet 161 NLRB 1380 enfd 395 F 2d 191 (C A 9) 182 NLRB No 94 FRIENDLY FORD 647 As all material issues have been previously decided by the Board, or admitted by Respondent's answer to the complaint, there are no matters requiring a hearing before a Trial Examiner Accordingly, the General Coun- sel's Motion for Summary Judgment is granted On the basis of the record before it, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is and at all times material herein has been a California corporation with an office and place of business located in Fresno, California, where it has been engaged in the retail sale of new and used automo- biles During the past year, a representative period, Respondent, in the course and conduct of its business operations, made retail sales of goods and services valued in excess of $500,000 During the same period, Respond- ent purchased and received goods and materials valued in excess of $50,000 from Ford Motor Company, San Jose, California, Division, which company purchased and received goods and materials valued in excess of $50,000 directly from outside the State of California Respondent admits, and we find, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act representative of the employees in said unit and the Union continues to be such representative B The Request To Bargain and Respondent's Refusal Commencing on or about April 17, 1969, and continu ing to date, the Union has requested and is requesting the Respondent to bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit Since May 6, 1969, and continuing to date, the Respondent has refused and continues to refuse to bargain collectively with the Union as exclusive collective-bargaining repre- sentative of all employees in said unit Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employ- ees of the Respondent in the appropriate unit described above and that the Union at all times since February 20, 1969, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act We further find that the Respondent has since May 6, 1969, refused to bargain collectively with the Union as the exclusive bargaining representative of its employ- ees in the appropriate unit By such refusal the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act II THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No 87 is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Representation Proceeding I The unit The following employees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act All new car, used car, fleet and truck department salesmen employed at the Employer's Fresno, Cali- fornia operations, excluding all other employees, guards and supervisors as defined in the Act 2 The certification On February 12, 1969, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 20, designated the Union as their representa- tve for the purposes of collectve bargaining with the Respondent, and on February 20, 1969, the Regional Director certified the Union as the collective-bargaining 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 its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collec- tively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit See Mar-Jac Poultry Company, Inc, 136 NLRB 785, Commerce Com- pany d/bl a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5), cert denied 379 U S 817, Burnett 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction Company, 149 NLRB 1419 , 1421, enfd. 350 F . 2d 57 (C. A. 10). CONCLUSIONS OF LAW 1. Valley Ford Sales, Inc., d/b/a Friendly Ford (for- merly d/b/a Paul Johnson Ford), is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All new car, used car, fleet and truck department salesmen employed at the Employer's Fresno, Cali- fornia operations, excluding all other employees, guards and supervisors as defined in the Act. 4. Since February 20, 1969, the Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing on or about May 6, 1969, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent , Valley Ford Sales, Inc., d/b/a Friendly Ford (formerly d/b/a Paul Johnson Ford), Fresno, California, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All new car, used car, fleet and truck department salesmen employed at the Employer's Fresno, Cali- fornia operations, excluding all other employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its place of business in Fresno, California, copies of the attached notice marked "Appendix. "4 Copies of said notice, on forms provided by the Regional Director for Region 20 shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 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 said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 20, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. " In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All new car, used car, fleet and truck depart- ment salesmen employed at the Employer's Dated FRIENDLY FORD 649 Fresno, California operations, excluding all other employees, guards and supervisors as defined in the Act. VALLEY FORD SALES, INC., D/B/A FRIENDLY FORD '(FORMERLY D/B/A PAUL JOHNSON FORD) By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. , Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 13050 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Tele- phone 415-556-3197. I