Village Rambler Sales, Inc.

VILLAGE RAMBLER SALES 247 Village Rambler Sales, Inc. and Automotive Salesmen's Association (ASA), affiliated with Siuna, AFL-CIO. Case 7-CA-6547(14) January 28, 1969 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA AFL-CIO, herein called the Union, in violation of Section 8(a)(5) of the Act The charge was filed on January 24, 1968, and the complaint issued on July 26. A brief was filed after the close of the hearing by the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT On October 21, 1968, Trial Examiner Thomas A. Ricci 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. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Village Rambler Sales, Inc., Birmingham, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'The Trial Examiner in his conclusions of Law has dated Respondent's refusal-to-bargain violation as commencing on and after February 1, 1967, the certification date for the bargaining unit herein We hereby find that such violation occurred on and after July 25, 1967, the date in the complaint in conformity with Section 10(b) of the Act _ TRIAL EXAMINER'S DECISION STATEMENT OF TtIE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner at Detroit, Michigan, on September 10, 1968, on complaint of the General Counsel against Village Rambler Sales, Inc., herein called the Respondent or the Company. The sole issue is whether the Respondent refused to bargain with Automotive Salesmen's Association (ASA), affiliated with SIUNA, Village Rambler Sales, Inc., is engaged in the retail sale, service and distribution of automobiles and related products, with its place of business in Birmingham, Michigan. It is a wholly owned subsidiary of American Motors Sales Corporation; the cars and trucks sold by the Respondent are manufactured by American Motors Corporation in Kenosha, Wisconsin, and in Bramton, Ontario. The Respondent's gross overall business annually exceeds $500,000. In late 1966, while a representation proceeding brought by the Union (Case 7-RC-7542) was being investigated, Russell Downey, then president of the Respondent, signed a questionnaire on commerce information which, among other things, states that the Company's "approximate gross purchases of materials or services directly from outside the State of Michigan" in the past calendar year was $100,000. In this proceeding the Respondent disputes the Board's jurisdiction on the asserted ground that the cars sold by this dealer, although produced out of state, "come to rest in the State of Michigan and are removed from the stream of commerce." It appears that purchases are made from American Motors Sales Corporation, which acts as distributor for the manufacturing company. Village Rambler operates through the sales company, purchasing, as a company witness said, "from Detroit office of the American Motor Sales Corporation." I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein.' IL THE LABOR ORGANIZATION INVOLVED I find that Automotive Salesmen's Association (ASA), affiliated with Seafarers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.' IIL THE UNFAIR LABOR PRACTICES This is a refusal to bargain case in a literal sense; it is alleged that the Respondent refused to meet and confer with the statutory bargaining agent of its employees. The answer controverts some of the essential subsidiary factual assertions set out in the complaint, but does not affirmatively explicate a theory of defense. The purport of the Respondent's position in the litigation, so far as indicated at the hearing and its brief, seems to be that the Union waived, or agreed to postpone its demand for bargaining rights. The complaint alleges, the answer admits, and I find that all new and used car and truck salesmen employed by 'Carolina Supplies and Cement Co., 122 NLRB 88 'I take judicial notice of the decision and amendment of certifications issued by the Regional Director for the Seventh Region on February 9, 1968, in Case 7-AC-12, in which Mr Douglas D. Roberts, counsel for the Respondent here, participated as attorney for another client. 174 NLRB No. 43 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent at its Birmingham, Michigan, place of business, excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Upon petition of the Union, a Board conducted election was held in this unit, and in consequence, the Regional Director, on February 1, 1967, issued a certificate of representatives in favor of the Union. While conceding that the election was held and that the Regional Director did issue this certificate, the Respondent in its answer does not admit that a majority of votes cast were in favor of the Union or that the Union was or has been a majority representative. But there is no evidence supporting any possible contention that the certificate was anything but perfectly valid and proper. No appeal from the Regional Director's determination was taken to the Board. Accordingly, I find that at all times since February 1, 1967, and continuing to date, the Union has been the representative for the purposes of collective bargaining of a majority of the employees in the appropriate unit, and, by virtue of Section 9(a), has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.' Demand and Refusal The evidence in support of the complaint on behalf of the Union was given by several of its agents, and is as follows The Union's first demand for bargaining came on April 5, 1967, when Frederick Georg, the assistant secretary-treasurer, spoke to an attorney named Wendell Flynn on the telephone. They were discussing negotiations pending for another auto dealer named Redford Rambler, which Flynn also represented. Georg asked the lawyer "to set up" a meeting for purposes of bargaining about Village Rambler; Flynn answered only "he wasn't able to give me a date at that time." Later that month, or in early May, Georg went to the dealership to seek out Mr. Downey, the old president. He learned Downey was no longer there and that a Mr. Levy was now manager. Levy was not available and Georg left his name and telephone number with the request that the manager call him. He telephoned Flynn's office again, left his name and number, but Flynn did not return his call. On August 21, 1967, the Union hired William Shekell as a full time representative to help in its broad activities to arrange bargaining conferences with a great many auto dealers, the Union had some months before been certified as bargaining agent for car salesmen in upwards of 75 such employers in the Detroit area. Together with Thomas White and Edward Greene, also union agents, Shekell called at the Village Rambler store on September 11, 1967, where they found a Mr. Bennett in charge; they gave him the Union's proposed contract, a comprehensive document limited to noneconomic conditions of employment Bennett told them he was "running the dealership" for American Motors. The Union men asked for a negotiation date and Bennett answered they "would have to contact Mr. Flynn ... he [Bennett] had no power 'The Union was originally certified only as Automotive Salesmen's Association,(ASA); on petition filed (Case 7-AC-11) the certificate was amended to reflect its later affiliations with the Seafarers ' International Union of North America, AFL-CIO to conduct negotiations." He also said he would forward the proposal to Flynn and "Mr. Flynn would call us or he would call us." The next day Shekell himself telephoned Flynn, who promised to call Shekell back a day later and agree to a fixed date for bargaining. He did not do so. Shekell called the lawyer several times in the next few days, again telling the lawyer's secretary his purpose, but Flynn never returned his calls. Shekell also called Bennett two or three times when he had this difficulty in reaching Flynn, and told the manager he "wanted to know what the hoidup is, how we can get together for negotiations." Bennett promised to speak to Flynn, but never called Shekell back Georg called Flynn's office again on October 12 and 13, each time leaving his name and telephone number. As attorney for the Redford Rambler Company, Flynn was then ostensibly bargaining with the Union as to that employer also When, on October 12 and again on October 13 Georg called Flynn's office, he left his name and number with a request that the lawyer call him. It was not until the 17th that he spoke to Flynn; they talked about the Redford Company business. Now Georg again asked Flynn to set a date to discuss Village Rambler, but Flynn said he could not agree to a fixed bargaining appointment because "he wanted to get one case out of the way before he took another ...." There was a conference in Flynn's office on November 22 to talk about Redford Rambler. At the end of the meeting Georg asked Flynn "when I was going to be able to get a date set for Village Rambler because he had been stalling for over a year and I wanted a date." Again Flynn's position was, according to Georg's testimony, "I'd like to get this [Redford] matter out of the way first and then we'll get down to the matters at hand over Village Rambler." Two weeks later, on December 5, Georg tried the store again, and again Bennett, the American Motors manager in charge, gave him no satisfaction on the request for a bargaining date, saying only: " ... I don't know a thing about it; you'll have to talk to my attorney I am sorry, I cannot set it without his knowledge.You talk to Mr. Flynn." Georg tried Flynn a number of times thereafter: a week after visiting the store, on January 2, and on January 10. Flynn held firm to the same position that the Redford matter must be disposed of first. Georg denied flatly that he agreed with the lawyer to defer all consideration of Village Rambler until the Redford question was finally put to rest. He testified he insisted upon a separate meeting but Flynn constantly refused to agree. The Union met with Flynn on the Redford matter only twice - on March 27, 1967 and on November 22, 1967. The meetings produced nothing tangible. On January 24, 1968 the Union filed this charge against the Respondent. Flynn testified for the Respondent. He said he was always fully authorized to bargain for this Company, that he never had a representative of the Company with him when speaking to union agents, and that he did not need them. In its entirety his testimony leaves no doubt his intention always was to refuse to negotiate at all until the Redford matter was finished He started by denying having received any telephone calls from Mr. Shekell. He did not recall any meeting in March of 1967; as to what was said on November 22 his story was evasive, argumentative and irrelevant. He spoke of there being only two employees at the time of the election in 1966, suggested there was at one time only one employee in the unit, recalled coercion and duress over a year before that date. Asked to address himself more pointedly to what VILLAGE RAMBLER SALES was said between him and Georg on November 22, his answer was: "So I didn't propose to waste an awful lot of time discussing the labor contract with one employee. We had more employees with Village Rambler - correction, - Redford Rambler, and we might just as well set up the contract as far as Redford is concerned and then I can minimize my time as far as Village Rambler." "If we can get Redford Rambler agreed to, then we've got a pattern. We've established communication and we're not going to have mulch time wasted on Village Rambler, and ergo, I'm going to be paid for my time." Flynn also recalled talking to Georg on January 2, 8 and 19, 1968. He said Georg came to him at his office on the 19th under the impression a meeting had been set, but that he told Georg: "Hi, John L. Lewis, what the hell are you doing here? We don't have a meeting today and he got irritated and red in the face and turned around and walked out of the door and testified that he called up his attorney, Mr. Ashley, here, and said, File this charge of unfair labor practice." In the end, the General Counsel asked did the witness "have any minutes of negotiations with Village Rambler?" Flynn said he did, and when asked would he show them, answered: "No, because they are privileged communications between the client and the attorney "' Analysis and Conclusion Where Flynn's testimony conflicts with that of Shekell and Georg, I do not credit him. I find that Shekell and Georg did call his office a number of times, as they testified, stated the purpose of their calls, asked that the lawyer communicate with them, and that he did not do so. It is true the Union agents did nothing about it whenever Flynn refused to set a date, as they requested, to bargain on behalf of the Respondent. There was nothing else they could dc, except perhaps to have filed the charge before they did The managers of the store, the direct employer whom they also asked to sit down and negotiate, consistently shifted the responsibility, and the duty, to the lawyer. I do not believe Flynn's statement that all this was with the complete agreement of the Union representatives. The fact simply is that throughout the long period, over a year, he refused to negotiate on behalf of Village Rambler. I conclude that the Respondent refused to bargain with the certified representative of its employees and thereby violated Section 8(a)(5) of the Act. Perhaps Redford Rambler, like the Respondent, is also a wholly-owned subsidiary of American Motors Sales Corporation, or otherwise operates in like fashion, and its collective bargaining approach may therefore be comparable to that of the second company, which Flynn represented, To whatever extent this may be true, that fact alone does not suffice to excuse Village Rambler as Respondent In situations of this kind, the lawyer must be viewed as the client. The two companies are separate employers and each is answerable to the statutory duty to bargain for its own bargaining unit. An employer may not refuse to bargain on the ground that the problem of some other company must be resolved first. Implicit in Flynn's testimony is the contention that it would have been economically unfeasible for him, as a practicing lawyer, to devote the necessary time required to negotiate a contract 'Compare, International Hod Carriers, Building and Common Laborers' Union of America, Local No. 41, 129 NLRB 1447, enfd. 295 F.2d 657 (C.A. 7) 249 on behalf of a client who has too few employees. And this may be so, but it is not he who is being charged personally with wrongdoing under the statute. The Respondent is Village Rambler, and it is the Company upon which the statute imposes the bargaining obligation. No employer may divest itself of the legal obligation by shifting the responsibility to its agents, and then defend on the ground that the agent could not afford to spend his time dealing with the Union.' IV. THE REMEDY The Respondent having refused to bargain with the Union, it must be ordered to do so now. The complaint requests, as part of the remedial order, that the Union be granted a bargaining period of 1 year starting with the time when the Company does begin to bargain in good faith, very much in the fashion that the original Board certification carries a 1-year period of presumative validity. In the circumstances of this case, I find the request reasonable and persuasive. The remedy for unfair labor practices committed must be tailored so as adequately to restore the status quo and thereby effectuate the policies of the Act. Whether it be now or then, the Union must have "ample time for carrying out its mandate." Ray Brooks v. N.L.R.B., 348 U.S. 96. Compliance with the affirmative order to bargain here, therefore, will mean that from the day the Respondent commences bargaining in good faith, at whatever stage of the proceeding it chosen to do so, the Union's statutory majority representative status will be the same as it was at the start of the original certificate year - February 1, 1967. Compare, Minute Maid Corporation, 124 NLRB 355. V. 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 the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All new and used car and truck salesmen employed by the Respondent at its Birmingham, Michigan, place of business, excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Automotive Salesmen's Association (ASA), affiliated with SIUNA, AFL-CIO, was on February 1, 1967, and at all times material has been the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit, within the meaning of Section 9(a) of the Act. 'Compare, Insulating Fabricators, Inc. 144 NLRB 1325, enfd. 388 F.2d 1002 (C. A. 4) 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on and after February 1, 1967, to meet with the above-named labor organization and to bargain with it for purposes of collective bargaining, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Village Rambler Sales, Inc., Birmingham, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Automotive Salesmen's Association (ASA), affiliated with SIUNA, AFL-CIO, as the exclusive representative of all employees in the bargaining unit. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Birmingham, Michigan, copies of the notice attached hereto and marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being signed by the 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. '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." (c) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.' '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 the 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 NOT refuse to bargain collectively with Automotive Salesmen's Association (ASA), affiliated with SIUNA, AFL-CIO, 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 their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL bargain collectively, upon request, with the Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, 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 and used car and truck salesmen, excluding office clerical employees, guards and supervisors as defined in the Act. VILLAGE RAMBLER SALES, INC. (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.