Stuart Wilson, Inc.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stuart Wilson, Inc. and Automotive Salesmen's Association (A.S.A.), affiliated with Seafarers' International Union of North America, AFL-CIO. Case 7-CA-6629 January 31, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 28, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above -entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision . Thereafter, 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 Natiorral 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 exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner with the following modifications. On October 31, 1966, in Case 7-RC-7534, the Regional Director for Region 7 issued a Decision and Direction of Elections in a stipulated unit of Respondent's employees . Respondent's request for review of that decision was denied by the Board on November 23, 1966. The election was won by the Union, and on February 15, 1967, the Regional Director overruled Respondent 's objections and certified the Union . Thereafter , on April 27, 1967, the Board denied Respondent' s request for review. On February 9, 1968, in Case 7-AC-59, the Regional Director granted the Union's petition for an amendment to the certification to reflect the Union' s affiliation with SIU, and the Board on April 26, 1968, denied Respondent' s request for review. Respondent, in its exceptions , contends that the certification and amendment are invalid . These are the same allegations that were made by Respondent and fully litigated in the related representation and amendment proceedings . Respondent has not offered any new evidence not previously available to it; nor has it asserted the existence of special circumstances which would warrant reconsideration of the Board's prior determinations. In these circumstances, we find no merit in Respondent's exceptions. Inasmuch as Respondent has already litigated these issues, it has not raised any issue which is properly triable in the instant unfair labor practice proceeding.' We find, in agreement with the Trial Examiner, that Respondent refused to bargain with the certified union upon request, in October and November 1967, within the certification year, and thereafter. We further find these refusals to be in violation of Section 8(a)(5) and (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent 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. THE REMEDY Having found that 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 collectively 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. CONCLUSIONS OF LAW 1. Automotive Salesmen's Association, affiliated with Seafarers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Stuart Wilson, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. All new and used car and truck salesmen at Respondent's places 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. By virtue of a Board certification dated February 15, 1967, and an amendment of certification dated February 9, 1968, the above-named labor organization has been, and now is, the certified and exclusive representative of all of the employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and after October 1967, to bargain in good faith with the Union concerning 'Pittsburgh Plate Glass v. N L.R.B, 313 U S. 146, Debne Press, Inc, 165 NLRB 857 174 NLRB No. 49 STUART WILSON, INC. wages, rates of pay, hours, and other terms and conditions of employment, 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 affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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 Respondent, Stuart Wilson, Inc., Dearborn, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION BUCHANAN, Trial Examiner The complaint herein (issued April 1, 1968; charge filed March 8, 1968) alleges that the Company has violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 73 Stat 519, by refusing to meet and bargain with the Union as collective-bargaining representative although the Union had been certified as such representative. The answer, as amplified at the trial, denies that the Company refused to meet before, as claimed, the Union lost its majority status. The case was tried before me in Detroit, Michigan, on May 20, 1968. Counsel were heard in oral argument at the close of the trial. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company. I regret that seven intervening cases have delayed issuance of this Decision Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Michigan corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted. I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(A)(5) AND (1) Having indicated to counsel that, at the trial and in their briefs, they confine themselves to the specific points at issue, but that they cover these points thoroughly, I shall myself follow that suggestion; with a minimum concerning recitals of the necessary elements on which we obtained agreement. No issue has been raised with respect to the unit as certified by the Board on February 15, 1967, in Case 7-RC-7534, and as further described in an Amendment of 285 Certification on February 9, 1968, in Case 7-AC-59. I find and conclude that the following is an appropriate unit within the meaning of Section 9(b) of the Act: All new and used car and truck salesmen at the Company's places of business, excluding office clerical employees, guards and supervisors as defined in the Act. About or immediately after February 15, 1967, Van Zant, a company salesman at that time and until June, when he resigned, and president of the Union since April 3 of that year, asked John Blackwell,' president of the Company, to sit down and negotiate a contract. There were several such requests until the end of Van Zant's employment in June, Blackwell replying, as he himself testified, in substance that he did not want to be the first to negotiate a contract but wanted to wait to see what the other certified automobile dealers would do. A refusal to bargain on that account is not justified even if one recognizes the possible economic disadvantage under such circumstances. Blackwell could say in this connection only that at that early period Van Zant made no request for a specific date to negotiate; but the general refusal and the reason given therefor was an anticipatory refusal and could have indicated the futility of any suggestion of a specific date. Thereafter, by certified letters dated July 21 and August 30, the Union requested that the Company bargain with it. There was apparently no reply to either letter. These events prior to the statutory 10(b) period are noted because the intent or attitude thereby indicated may be considered, not as violative in itself, but as explaining the Company's acts or failure to act within the statutory period. The earlier demands are not to be deemed "meaningless" ' as in a case where the union lacks a majority at the time they are made. Although barred procedurally as the basis for a complaint, those demands indicate the Union's existing and continuing desire for bargaining as the Company's failure to reply indicates the latter's continuing refusal. But in any event and without reliance on any prestatutory period tests or events, we have and can consider events which occurred during the 10(b) period, which began on September 8. Thus in October and November several' requests were made to meet and bargain, company counsel promising to check with their client and call back; but the calls were not returned. A request to bargain and an unexplained failure to comply establish an unlawful refusal to bargain. I find and conclude that such refusal occurred in October. On September 27 the Union filed against the Company a refusal-to-bargain charge, which it withdrew on November 30. None of this affected the duty to bargain. Neither was any exculpatory issue raised by the AC petition, which was filed on November 20 and could not in any event affect any finding of earlier refusal to bargain. 'He will be referred to as Blackwell . His brother, James, is general manager and , less frequently mentioned , will be referred to as Jim Blackwell. 'N L.R.B v. Arkansas Grain Corporation , 390 F.2d 824 (C.A. 8) 'I have considered the testimony pro and con with respect to the number of telephone calls and requests to bargain, whether they concerned this Company alone, and the absence of response. The credible testimony indicates that there were such requests, that the Union was told that they were to be handled by counsel for the Company, and that there was no reply to at least some of them and for a significant time . Nor have I o""erlooked Jim Blackwell ' s suggestion, although he recalled little of the conversation, that he was told that the Union's proposed contract would be left with the Company in November as a mere formality to be disregarded Not only is his testimony that the Union 's requests to bargain were never 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, omitting harrowing details concerning a call from Van Zant to Blackwell late in November or early in December, others on December 19 and 21 and about the first of the year, one of the lawyers for the Company did call Van Zant and speak with him about setting up negotiations Thereafter it was agreed to meet to bargain on March 5. But on February 26 counsel for the Company requested a postponement, and the meeting was rescheduled for March 7. Three days after this arrangement was made, company counsel filed with 'the Board a charge against the Union and a decertification petition. Much was made at the trial, and with some reason, of Blackwell's alleged surprise, which I do not credit, when he received a copy on March 2 of the petition filed by his attorney on February 29 (he allegedly had no knowledge that his attorneys had taken such action), and of the employee meeting which he called on March 4 when, denying the Union's majority and on advice of counsel, he announced cancellation of the meeting scheduled for March 7. But more significant is the fact that there is no evidence of any event between February, 26 when counsel, indicating no doubt of continuing majority, arranged a postponement of negotiations, and February 29, when he filed the decertification petition on which Blackwell relied in canceling the meeting. Aside from prior unlawful refusal to bargain, this latest series of events, unexplained by the Company or its attorneys, itself indicates bad faith. Quite apart from this, but not to overlook a claim made, if as counsel for the Company suggested, the Union was too busy with other automobile dealers to press harder than it did here for negotiations, that did not vest in this Employer any right to ignore its bargaining obligation when requests were made; and ignore it, it did Hardly probative is counsel's early statement that employees told the Company that they no longer wanted the Union to represent them. So far from any proof of this and of action which would reliably indicate loss of the Union's majority, it appears that Blackwell was informed only that the employees had said that they would get out of the Union if it forced a strike on them, that none got out, and that none told the Company that he had left the Union The Union had not been repudiated and the Company was not even informed of any such repudiation. In this case we do not even reach the question whether information, which the Company might have claimed was sufficient, was reliable The rebuttable presumption of continuance of majdrity has not been rebutted. It may also be noted that, stating first that there were 14 to 16 employees in the unit at the time of the February 1967 certification, Blackwell then adopted as correct his affidavit declaration that there were approximately 14 at that time. This would appear to be more reliable than the reference to 17 as the approximate number of eligible voters made in the Regional Director's report. It appears further that eight of the employees who voted in the election were still employed in March 1968, and there is no evidence that the earlier proportion in favor of the Union was now modified. But in any event that issue is irrelevant in the light of the refusal to bargain within 1 year of the certification. specific contrary to the Union' s letters, but it is belied by his brother's explanation for the refusal to bargain RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company, Stuart Wilson, Inc., Dearborn, Michigan, its officers, agents, successors, and assigns, shall. 1 Cease and desist from: (a) Refusing to bargain collectively with Automotive Salesmen's Association (A.S.A.), affiliated with Seafarers' International Union of North America, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its places of business in Dearborn, Michigan, copies of the attached notice marked "Appendix "° Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by its representative, shall be posted by the Company, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' '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 " 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 7, 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 bargain, upon request, with Automotive Salesmen's Association (A.S.A.), affiliated with Seafarers' International Union of North America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment , or other conditions of employment , and embody in a signed agreement any understanding reached. The bargaining unit is: STUART WILSON, INC. 287 All new and used car and truck salesmen at our places of business, excluding office clerical employees, guards and supervisors as defined in the Act. 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 STUART WILSON, INC. or compliance with its provisions, they may communicate (Employer) directly with the Board's Regional Office, 500 Book Dated By Building, 1249 Washington Boulevard, Detroit, Michigan (Representative) (Title) 48226, Telephone 226-3200