North Bros. Ford, Inc.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Bros. Ford, Inc., and Automotive Salesmen's Association (A.S.A.), Affiliated With S.I.U.N.A. AFL-CIO. Case 7-CA-7882 January 8, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On July 31, 1970, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that 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 Res- pondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent North Bros. Ford, Inc., Westland, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 We are here affirming the Trial Examiner's finding that Respondent violated Section 8(aX5) by refusing to meet for any purpose with the union grievance committee We reject Respondent's defense based upon the fact that the committee includes employees of competitors We do not reach or decide the issue alluded to by the parties, but as to which this record presents no facts giving rise to a justiciable controversy-i.e , under what circumstances Respondent would be obligated to disclose to such a committee assertedly confidential pricing information alleged to be relevant to a particular grievance 2 In footnote 2 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Detroit, Michigan, on June 8, 1970. The original charge of unfair labor practices had been filed on April 14, 1970, by the above-indicated Charging Party, hereinafter sometimes referred to as the Union. The complaint herein was issued May 8, 1970, by the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 7; it alleges, and the duly filed answer of the above-indicated Respondent hereinafter sometimes referred to as the Company, denies, the commission of unfair labor practices defined in Section 8(a)(5) and (1) of the Act. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. At the close of the taking of testimony, General Counsel submitted oral argument; subsequent to the close of the hearing counsel for the Company filed a written brief. On the entire record herein, on consideration of the oral and written argument submitted, and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT COMPANY The pleadings and evidence establish and I find that the Company, a Michigan corporation, is engaged in the retail sale, distribution, and service of new and used automobiles with its principal office and place of business Westland, Michigan. During the year 1969, a representative period, the Company purchased and received at its Westland operation new automobiles, parts, and other goods valued in excess of $50,000 and shipped to its Westland operation directly from points outside the State of Michigan. In the same period the Company sold products valued in excess of $500,000. The Company admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union has been, since February 1967, the certified collective-bargaining representative of all new- and used- car and truck salesmen employed by the Company. The current collective-bargaining agreement runs for the period March 7, 1969, to March 7, 1971. Under the agreement salesmen are paid, at least in part, on the basis of commissions computed as a percentage of company profit on a sale It is stipulated that in the event of an employee grievance relating to the amount of his commission it would be necessary for the Union's grievance committee repre- sentative to have access to company books and records. The Union also represents employees of some 40 other new- and used-car and truck dealers in the Detroit metropolitan area. Prior to November 1969 the Union had no permanent grievance committee but designated employee grievance representatives on an ad hoc basis. On November 25, 1969, the Union established a permanent grievance committee of eight members to handle grievances in their respective areas. John Slobodnick, a salesman employed by the Company and a member of the grievance committee, is 187 NLRB No. 106 NORTH BROS. FORD, INC. assigned to handle grievances of employees at company competitors in the west side of the Detroit metropolitan area ; Emerson Rice, chairman of the union grievance committee and a salesman employed by Tennyson Chevrolet in Livonia, and Hugh Betts, a salesman employed by Atchinson Ford, a dealer located in the area also relatively near to the Company, are assigned to handle grievances arising among company salesmen. The evidence establishes that the new- and used-car and truck retail sale business is highly competitive with the price quoted by the dealer being a major factor in sales. Company President North's testimony establishes that a competing dealer who had knowledge of the Company's pricing system would have an advantage in competition. As of the time of the hearing union representatives had not requested inspection of company records but North fears that they might. The Company is willing to meet on grievances with full-time union officials or with Union designated company employees but refuses to meet on grievances with any committee which includes a full-time employee of a competitor. Among the specific guarantees of the Act is the right of employees to bargain collectively through representatives of their own choosing. In Roscoe Skipper, Inc., 106 NLRB 1238, the employer refused to meet with a bargaining committee established by the certified representative so long as it included one George Phillips, a former employee who had been active in organizing on behalf of the Union. The Company's objections to Phillips' presence in negotia- tions were (1) that a nonemployee should have no right to sit in on negotiations, and (2) that Phillips could convey secret information to competitors and injure the Compa- ny's business. The Board adopted the Trial Examiner's decision rejecting both employer contentions. With respect to the possibility of disclosure of secret information to competitors, the Board approved the Trial Examiner's statement as follows: As to Respondent's further contention that Phillips might harmfully disclose to competitors information acquired at bargaining sessions, it is quite apparent that any genuine apprehension it had on this score was based solely on conjecture. No one will deny that the principle of collective bargaining tends to remove a shield of secretiveness from an employer's business operations. But even apart from this sometimes unwelcome reality, no reason was advanced to impel the belief that Phillips would be any more likely to divulge Respondent's pay structure to employees working in rival plants than would any other of Respondent's 60-odd employees. Moreover, it would be entirely unrealistic to assume that information concern- ing the wages paid by the various business in the citrous packing and distributing industry in central Florida would not promptly become generally known by all interested parties through the normal channels of community conversation. Nor can much weight be given to the argument that the mere participation of a non-employee truckdriver in conference concerning hours, wages and terms and conditions of employment might result in a disclosure of secret methods or processes to competitors. Assuming Respondent pos- 767 sesses any special expertise not shared by others, far more informative access to its discovery than through Phillips exists. In enforcing the Board's order in Roscoe Skipper, Inc., 213 F.2d 793 (C.A. 5), the court said: To select one's own representative or agent is a natural right and the statute accords it in express terms. For the employer, in the absence of exceptional circumstances which do not appear here, to have a right of choice either affirmatively or negatively as to any of those who are to sit on the opposite side of the table from him would defeat and nullify the law. On the authority of the Roscoe Skipper case, I find and conclude that the Company's refusal to meet and discuss grievances with any union committee which includes employees of a competitor constitutes an unfair labor practice within the purview of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above and there found to constitute unfair labor practices, occurring in connection with the Company's business operations as set forth 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 such commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in unfair labor practices affecting commerce, it will be recommended that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act and is and has been at all material times the representative of all new- and used-car and truck salesmen employed by the Company within the meaning of Section 9 of the Act. 3. By refusing at material times to meet for the discussion of employee grievances with any union commit- tee which includes employees of a competitor the Company has engaged in unfair labor practices within the purview of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it is recommended that the Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to meet for discussion of grievances with any union committee on the basis of the inclusion thereon of an employee or employees of a business competitor or competitors. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Notify the Union forthwith in writing that it will on request meet for the discussion of grievances duly filed under the existing agreement irrespective of the inclusion on the union committee of employees of business competitors. (b) Post on the Company bulletin board a copy of the attached notice marked "Appendix" I A copy of said notice, on forms provided by the Board's Regional Director for Region 7, shall, after being duly signed by the Company's authorized representative, be posted immedi- ately upon receipt thereof and be maintained by it thereafter for a period of 60 consecutive days. Reasonable steps shall be taken by the Company to insure that said notice is not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days2 from receipt of this Decision what steps have been taken to comply with the terms hereof. i In the event no exceptions are filed as provided by Section 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 2 In the event these recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 7, in writing, within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT refuse to meet and discuss grievances with Grievance Committees of Automotive Salesmen's Association (A.S.A.), affiliated with S.I.U.N.A., AFL-CIO, on the basis of inclusion on such committees of employees of other dealers. WE WILL meet on request with Grievance Commit- tees of the aforesaid labor organization whether or not they include employees of our competitors. WE WILL NOT by refusing to meet with such committees or in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights under the National Labor Relations Act, as amended. NORTH BROS. FORD, INC. (Employer) Dated 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.