Dean Sellers, Inc.

DEAN SELLERS Dean 'Sellers, Inc. and Automotive Salesmen's Associiation (A.S.A.), affiliated with SIUNA, AFL-CIO. Case 7-CA-6639 February 5, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 13, 1968, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed an answering 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 and the entire record in the case,' including Respondent's exceptions and brief, and the General Counsel's answering brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below.2 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 'Respondent's request for oral argument is denied as in our opinion the record, including Respondent's exceptions and brief, and the General Counsel's answering brief, adequately presents the issues and positions of the parties. 'The record reveals that the Trial Examiner's Decision contains certain errors, which are hereby corrected Section I of the Findings of Fact should read , in place of "calendar year of 1937 . ," "calendar year of 1967 "; III, A, 1, should read, in place of "February 22, 1968 "January 22, 1968 .11 We adopt the Trial Examiner' s finding that Respondent violated Section 8(a)(5) and 11) of the Act on and after February 29, 1968 However, we do not adopt his further finding, with regard to the remedy , that Respondent has failed to engage in any good -faith bargaining since January 23, 1967 The Union certification year expired on December 20, 1967. The charge was filed on March 15, 1968 The complaint alleges violation of the Act on February 29, 1968 Under Section 10(b) of the Act, events occurring before September 15, 1967 cannot be proved as independent violations of the Act. Since we do not find that Respondent deprived the Union of the protection afforded by the certification period, we find no reason to extend the certification year We therefore do not adopt the Trial Examiner's recommendation that the certification year be extended for 11 months, and amend his Recommended Order by deleting the final sentence of paragraph 2(a) 311 Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, Dean Sellers, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on March 15, 1968, by Automotive Salesmen's Association (A.S.A.), affiliated with SIUNA, AFL-CIO, herein called the A.S.A. or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7 (Detroit, Michigan), issued a complaint, dated June 28, 1968, against Dean Sellers, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, and Respondent's answer denies, that at all times on and after February 23, 1968, Respondent refused to bargain collectively with A.S.A. as the exclusive collective-bargaining representative of all the employees in a specified appropriate unit in violation of Section 8(a)(5) and (1) of the Act. Pursuant to due notice, a hearing was held before me at Detroit, Michigan on August 5, 1968. All parties appeared by counsel, and were given full opportunity to participate therein On August 26, 1968, I received from the General Counsel and Respondent briefs which I have fully considered. For the reasons hereinafter indicated, I find that Respondent violated Section 8(a)(5) and (1) of the Act. Upon the entire record in the case,' and from my observation of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Dean Sellers, Inc., a Michigan Corporation with its office and place of business in Detroit, Michigan, is engaged in the retail sale and servicing of automobiles and related automotive products. During the calendar year of 1937, a representative period, Respondent received at its Detroit, Michigan location goods and materials, valued in excess of $50,000, directly from points located outside the State of Michigan; during the same period, Respondent obtained gross revenues in excess of $500,000 from the sales of automobiles and trucks at its place of business in Detroit, Michigan. Upon the above undisputed facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find, that Automotive Salesmen's Association (A.S.A.), affiliated with SIUNA, AFL-CIO, the Union herein, is a labor organization within the meaning of Section 2(5) of the Act. ' Certain errors in the transcript have been noted and corrected. 174 NLRB No. 56 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES The issues in this proceeding are (1) whether Respondent's conduct on and since February 29, 1968, constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act; and (2) whether, if the first issue is resolved against Respondent, the normal certification year during which the Union's certification is immune from attack should be extended. A. The Refusal to Bargain 1. The appropriate unit and the Union's representative status therein Pursuant to an election conducted by the Board's Regional Director in Case 7-RC-7463, Automotive Salesmen's Association (A.S.A ), Independent, was certified by the Board on December 20, 1966, as the exclusive collective-bargaining representative of Respondent's employees in a unit of all new and used car and truck salesmen , excluding office clerical employees, guards, and supervisors as defined in the Act, and all other employees. In October 1967, A.S.A. became affiliated with Seafarers' International Union of North America, AFL-CIO, herein called Seafarers, and thereupon filed petitions with the Board to amend its certification to reflect this affiliation (7-AC-16 et al). A consolidated hearing on said petitions was held on January 1, 3, 4 and 5, and on February 22, 1968. Thereafter, on February 9, 1968, the Board' s Regional Director issued his Decision and Amendment of Certification, in which he found that the "affiliation with the Seafarers caused no loss of identity of the certified A.S.A." and that the affiliated A.S.A. was but "a continuation of the certified A.S.A.," and granted the petitions to amend the certification to reflect this affiliation. In its answer to the Complaint, Respondent denies the allegation that A.S.A. has at all times been and still is the exclusive bargaining representative of the unit employees, "for the reason that the majority of the present members of the Certified Bargaining Unit do not wish to be represented by ASA." At the opening of the hearing, the Trial Examiner asked Respondent's counsel, Jon Desenberg, what his position was in this regard. Counsel thereupon stated, "our position is that the Union at present does not have the majority nor did they have the majority at the time any of the acts mentioned in the complaint took place, nor at the time the charge was filed or the complaint issued." However, Respondent adduced not one iota of evidence to support this position.' Indeed, it did not even adduce any evidence on which it might rely for the purpose of entertaining a good faith belief that such was the case. And Respondent's counsel makes no mention of his position in this respect in his brief. I find, as alleged in the complaint, that the unit for which A.S.A was certified is an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. I further find, as also alleged in the complaint, that at all times since December 20, 1966, A.S.A. has been, and still is and continues to be, the exclusive representative of all the employees within said appropriate unit for the purposes of collective bargaining 'Any possible numerical loss of majority after February 29, 1968, is in any event found to be attributable to Respondent's unlawful refusal to bargain, infra, and hence invalid. in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 2 Sequence of events' On January 23, 1967,° Duane Ashley, attorney for A.S.A., wrote a letter to Respondent, referring to A.S.A.'s certification and requesting Respondent to begin collective bargaining with A.S.A. "on February 7, 1967 at 10:00 a.m." The letter also requested Respondent "to indicate your intended compliance with the aforementioned request, in writing, by January 30, 1967," after which "you will be informed of the place at which the bargaining will be held." This letter was sent by registered mail, with the return receipt showing delivery on January 25. Attorney Ashley received a reply letter, dated February 1, 1967, from Respondent's Controller, Robert B. Sellers, advising Ashley to contact Respondent "in person" at its place of business in Detroit, Michigan. Ashley thereupon telephoned Respondent's office to speak to Robert Sellers on two occasions but was unable "to reach him." Robert Sellers never returned Ashley's calls despite the fact that on each occasion he left a message requesting a return call. Ashley thereupon sent a reply letter, dated February 10, 1967, and addressed to Robert Sellers' attention at Respondent's place of business, in which he recounted his unsuccessful attempts to reach Robert Sellers by telephone and advised that "if the intent of your letter was to indicate that you are willing to negotiate with the representative of yottr employees, please contact the writer so that we may work out a date and time that the Union representatives can meet at your dealership.' After almost a month had elapsed without receiving a reply to his February 10 letter, Ashley, on behalf of A.S.A., filed with the Board's Regional office on March 6, 1967, a refusal-to-bargain unfair labor practice charge against Respondent in Case 7-CA-5961. About this point in March 1967, Fred George became secretary of A.S.A. and took over collective bargaining responsibilities with respect to Respondent. On March 21, 1967, George telephoned Respondent at its dealership and asked the operator to be connected with Dean Sellers. The person who answered identified himself as Robert Sellers and stated that he was in charge of the dealership. When George introduced himself, he was told by Robert Sellers to contact Respondent's attorney, Jon Desenberg, for any negotiating dates. Immediately after this conversation, George telephoned Desenberg's law office and spoke with Desenberg himself. George introduced himself by name and title and stated that he "was calling for a negotiation date to be set for the purposes of negotiating" a collective-bargaining agreement for the employees at Dean Sellers. Desenberg's response was that A.S.A. had filed a refusal-to-bargain charge against Dean Sellers and that he would not negotiate unless this charge "were dropped." George replied that he would have to consult with the A.S.A. 'Unless otherwise indicated, the findings in this section are based on credited evidence and testimony which is either admitted or undemed 'Evidence pertaining to events occurring prior to September 15, 1967, were offered and received for background purposes. 'Respondent's Attorney Desenberg testified on direct examination that no response was received to Robert Sellers' letter of February 1 However on cross-examination, he qualified his answer by testifying that there was no "follow-up contact" between "the union and Mr. Sellers to which I was a party " Robert Sellers was not called as a witness and did not testify. DEAN SELLERS board members and Attorney Ashley about withdrawing the unfair labor practice charge, and that Desenberg would be notified.' George immediately consulted with Ashley and A.S.A.'s board members . They decided that it would be better to withdraw the charge and negotiate than to go through with an unfair labor practice proceeding. The charge was thereupon withdrawn. , On March 28 , 1967, George telephoned Desenberg and requested that a date for negotiations be set. A tentative date of April 11, 1967, was set. On that date George for the first time met with Attorney Desenberg in the latter's office. No one else was present. After remarking on the absence of Desenberg 's principals, George gave Desenberg two copies of A.S.A' s noneconomic proposals. One copy was for Desenberg , and the other copy was for Sellers. Desenberg said they would like to read it over and if there were any questions about it they would be answered in a counterproposal which would be submitted to George. They talked "a little" about the noneconomic proposals and discussed "most of our ground rules" for negotiation. It was a short meeting of not more than one hour and ended with the understanding that Desenberg would arrange another meeting when he obtained a counterpi oposal.' From April 11 to May 23, 1967, George was unable to reach Attorney Desenberg by a number of telephone calls placed to his office, although each time he left a message with the office secretary for a return call He finally reached Desenberg on the telephone on May 23, and asked why there had been such delays in arranging further meetings to negotiate a contract . George wanted to know if this was going to be the pattern of negotiations with long "stalls" and delays between meetings . Desenberg's reply was that Respondent was still in the process of reviewing A.S.A.'s proposals and that he still had to discuss the matter with Sellers. Immediately after this telephone conversation, George sent a follow-up letter by certified mail to Desenberg, stating: Repeated attempts as early as April 11, 1967 were made to contact you in regards to Dean Sellers, Inc. for the purpose of negotiating a labor contract for the sales employees. 'The findings in this paragraph are based on the credited testimony of George Desenberg's testimony differed only in the following respect. Desenberg testified that he "proposed to him [George] that the charge be withdrawn and that bargaining be commenced. He agreed to that procedure " However, at another point in his testimony, Desenberg admitted that he would not bargain "while faced with an unfair labor practice complaint," that that position was "in line with all the proposals we had made' to the union in connection with all the other charges made against us," and that "we always proposed to go ahead when the unfair labor practice charge had been resolved." In view of these admissions and the fact that Desenberg did not impress me favorably as a credible witness, as hereinafter further indicated , I do not credit his testimony to the extent that it conflicts with that of George 's as set forth in the text 'Desenberg testified that this meeting occurred about March 28, 1967, and that he had "some further contact with Mr George" about April 11, "the exact nature of which I am not sure of at the present time." George admitted that he might have been mistaken about the date being April 11 rather than March 28 but thought that what had happened was that the date for the meeting had originally been set for March 28 and in a telephone call was changed to April 11 . Desenberg' s admission that he forwarded a copy of the proposed contract to Respondent on, April 12, would tend to support George's version that the meeting occurred on April 11. While it is immaterial whether the meeting occurred on March 28 or April 11, I have accepted the April II version inasmuch as counsel for Respondent has accepted that version in his brief. 313 I find it necessary to write in regards to this matter. A reply upon receipt of this letter will be expected within 48 hours, for the purpose of setting an appointment for negotiations. I hope it will not be necessary to take further action. Although this letter was received by Desenberg on May 25, as the return receipt shows, he never replied thereto. On May 26, 1967, Attorney Ashley sent the following letter by certified mail to the attention of Robert Sellers at Respondent's place of business, with a copy to Desenberg's law firm: The writer is the attorney for the Automotive Salesmen's Association (A.S.A.), Independent, and has been informed by Mr. Frederick George, the Union official in charge of negotiating at your dealership, that he has been unable to arrange meetings with you and your representatives. He has further advised me that your representative has indicated to him that he lacks the power or the authority from you to even set a date to negotiate a contract. If this is not the case, kindly rectify the situation immediately. Looking for your immediate response, I am, - Desenberg admitted that he received a copy of this letter and made no reply thereto. On June 9, 1967, Ashley received the following reply letter, signed by Julia Apian as office manager for Dean Sellers, Inc.: This will acknowledge your letter of May 26, 1967 with reference to the law firm of Mall, Desenbe^g, Purdy, Bayer and Glover. This is to advise that we have utmost confidence in the above mentioned firm and suggest that whatever Mr. Frederick George has to discuss in connection with a salesman union, that such contacts be carried out with Mr. Desenberg. The management of this company, of course, reserves the right of final approval. Desenberg testified that "on or slightly prior to June 16, 1967," he had a telephone call from George, that George "wanted a definite date set for resumption of negotiations and we agreed upon a date" which was "sometime between June 25 and July 1, the exact date I do not recall," that George did not appear on the date of the scheduled meeting, and that he did not hear from George again or any other representative until October 16, 1967, when he had a telephone conversation with George who explained why he had not appeared at the scheduled meeting in June However, Desenberg admitted that he could not recall what George's explanation was. As I have previously noted, Desenberg did not impress me as a credible witness. He displayed a conveniently poor memory on important matters and his testimony was at times contradictory and shifting, as the examples in the margin indicate.' That George would have failed to appear on a specific scheduled date for resumption of negotiations which he had been so assiduously seeking, without any explanation or followup for almost 4 months, as Desenberg testified, just defies belief. It would constitute an incomprehensible deviation from the entire pattern of the conduct and efforts of George and Ashley to have such a meeting take place. Under all the circumstances, I do not credit Desenberg's testimony that he and George had agreed on a definite date for resumption of negotiations, which allegedly was "sometime between June 25 and July 1," and that George failed to appear at that time. 'Thus, he testified that his first involvement in this case occurred about 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Desenberg further testified that George telephoned him on October 16, 1967, requesting a meeting, and that a meeting was held the next day, October 17, lasting about 2 1/2 hours. He further testified that every aspect of the proposed contract was discussed at this meeting, that proposals were made by him and George, and that he could not "remember" whether agreement was reached on anything On the other hand, George testified that on October 17, 1967, he telephoned Desenberg and asked for a negotiation date to bargain for a contract, and that the only response he got from Desenberg was a promise to call back no later than Monday, October 23. Thus, implicit in George's testimony is a denial that any negotiating meeting with Desenberg took place on October 17. On Monday, October 23, Desenberg telephoned George and informed him that "Mr. Sellers would like some questions answered before he would sit down to negotiate any kind of a contract" and that Desenberg orally stated some of the questions. George replied that he did not think any of these questions were "relevant to any part of the negotiations but that if he (Desenberg) wanted to put them in letter form and send them to me I would look them over." Desenberg did not deny George's credited testimony about this telephone conversation, as hereinabove set forth. Indeed, he admitted that this was the subject matter of the October 23 telephone conversation as his letter of October 31, further verifies. Thereafter, George received from Desenberg the following letter, dated October 23, 1967: This will confirm our telephone conversation of October 23rd during which I indicated the company's desire to obtain answers to the following questions: 1. What are the union's long range objectives? 2. What can the union do for the company? 3. Who are the union officers? Upon consideration of all the' foregoing, I am convinced and find that the negotiating meeting of February 1 , 1967, as a result of the unfair labor practice charge filed in Case 7-CA-5961 Yet, the charge itself shows that 'it was not filed until March 6, 1967. He testified on direct examination that no response to Robert Sellers' letter of February 1, 1967, was received; but on cross-examination, when Ashley' s reply letter of February 10, 1967, was pointed out to him, he shifted his position and qualified his answer to state that there had been no "follow-up contact" between "the Union and Mr. Sellers to - which I (Denenberg) was a party " Again he testified at great length and went into considerable extensive detail with respect to all the specific aspects of the union' s proposed contract which allegedly were discussed at a meeting with George ' on October 17, 1967, yet, he conveniently could not recall whether agreement was reached on anything at that meeting Thus he testified that "I simply don't remember." He also at first testified that at this alleged meeting of October 17, George "indicated to me that he would be perfectly happy to obtain answers for me to those questions" which Respondent wanted answered and which Desenberg at that time stated orally and that Desenberg agreed to comply with George's request that Respondent submit these questions in writing. However; almost immediately thereafter , Desenberg contradicted himself by testifying that it was in a telephone conversation with "Mr . George on October 23 , 1967" that "we discussed the questions to be transmitted from the company to the union," thereby corroborating George 's version of that telephone conversation. Still a different version is set forth in Desenberg's brief which quotes George as stating, in response to Desenberg's proposal at the conclusion of the October 17 meeting that the Union supply Respondent with answers to several questions , that "if he (Desenberg) wanted to put them in letter form and send them to me , I would look them over." Not only is Desenberg attributing to George a different answer in his brief from that which he attributed in his testimony , but the quoted answer is George's testimony of his answer in the telephone conversation of October 23. October 17, 1967, to which Desenberg testified, as hereinabove set forth, either did not take place or took place on a different date. In any event, assuming that it did take place as Desenberg testified, I would reach the same conclusions and make the same findings with respect to Respondent's conduct, as hereinafter set forth. A.S.A. made no response to Desenberg's letter of October 31; instead, Attorney Ashley on its behalf filed with the Board another refusal-to-bargain charge on November 9, 1967, in Case 7-CA-6431. This charge was later withdrawn to pave the way for the petition of A.S A. (7-AC-16 et al.) to amend its certification to reflect its affiliation with the Seafarers. As previously noted, a consolidated hearing on this petition was held before the Board on January 3, 4, and 5 and February 22, 1968. Desenberg attended the hearing only for about 1 1/2 hours on the first day at which time he saw George in attendance. About January 10, 1968, George telephoned Desenberg and again asked him to set up a negotiating date. Desenberg replied that they would not bargain while the petition to amend the certificate was pending and that "this was their position on it "9 On February 9, 1968, the Regional Director issued his Decision and Amendment of Certification, granting the petition to amend A.S.A.'s certification to reflect its affiliation with Seafarers, as previously noted. Attorney Desenberg admitted that he received a copy of this Decision during the 'period between February 9 and 13, 1968. On February 23, 1968, Attorney Ashley, on behalf of A.S.A., sent the following registered letter to Respondent, addressed to the attention of "Mr. Dean L. Sellers, P res.": On February 9, 1968, Jerome H. Brookes, Esquire, Regional Director of the National Labor Relations Board for the 7th Region issued the decision amending the certification of representation held by the Automotive Salesmen's Association (A.S.A.), Independent, at your dealership to reflect the affiliated name of the Union. Based upon the aforestated decision, the Automotive Salesmen's Association (A.S.A.), affiliated with SIUNA, AFL-CIO, requests that you recognize your legal responsibilities under the N.L.R.A. by engaging in immediate good faith bargaining with the Union for the purpose of reaching a collective bargaining contract covering your employees in the previous N.L.R.B. certified unit. Accordingly, it is requested that your acknowledgement of this letter be made to this office on or before March 1, 1968. Your failure to respond promptly shall be construed by the Union as a refusal to bargain and the appropriate legal procedures will be undertaken by the Union. Attorney Ashley received the following reply letter, dated February 29, 1968, from Attorney Desenberg: Re: Dean Sellers, Inc. v. N.L R.B. Dear Mr. Ashley: 'The findings in this paragraph are based on George's credited testimony. George testified that he remembered this telephone call because he had made a note of it and because he had been directed by William Shekell, a union agent, to contact Desenberg . The latter testified that during the period from November 9 , 1967, to February 9, 1968 , "I have no recollection of any phone calls from Mr George , any contact from the Union whatsoever." As previously noted, Desenberg conveniently resorted to a lack of memory on significant matters DEAN SELLERS , 315 This will acknowledge receipt of your February 23, 1968 letter with respect to the above captioned matter. On March 15, 1968, Attorney Ashley, on behalf of A.S.A., filed the instant refusal-to-bargain charge against Respondent. The instant complaint was issued by the Board on June 28, 1968, setting the case down for a hearing on August 5. On July 16, 1968, Attorney James Plath, a law partner of Attorney Ashley, sent the following letter by certified mail to the attention of Robert Sellers at Respondent's place of business: The undersigned as one of the attorneys representing the Automotive Salesmen's Association (A.S.A.), affiliated with SIUANA, AFL-CIO, at this time again makes demand upon you to commence collective bargaining with the Union for the purpose of reaching a contract covering the employees within the certified unit. Please be informed that the Union is willing to meet with you and/or your representatives at any location and at any time convenient to yourself, provided, however, that such bargaining take place during the week of July 22, 1968 through and including Friday, July 26, 1968. I request a reply to this letter indicating whether or not you intend to bargain and your suggestions for the commencement date. Attorney Plath received the following reply letter, dated July 17, 1968, from Attorney Desenberg: Re: Dean Sellers, Inc. Dear Mr. Plath: It is not our intention to bargain, while faced with an unfan_r labor practice complaint. refusal to bargain." Desenberg's letter complied only with the second request. Moreover, viewed in the context of the preceding events, there can be no doubt that the letter contained a request that Respondent engage "in immediate good faith bargaining with the Union." Desenberg was aware that this is what the Union and its attorney had been seeking since its certification. Desenberg was an experienced labor attorney who had previously spent about 21 months as a trial attorney with the Board and was therefore familiar with these matters and situations. Indeed, he admitted in his testimony that the letter "was a request to acknowledge the fact that we were ready to commence and resume negotiations." Also in his brief, he states that the letter "requested immediate bargaining." Prior to the receipt of this letter, Desenberg had already received a copy of the Regional Director's Decision in the AC petition, granting the request to amend A S.A.'s certification to reflect its affiliation with the Seafarers. Under all the circumstances, I cannot accept Desenberg's contention in his testimony and brief that he regarded the letter as "in the nature of an announcement that the AC petition had been approved by the Regional Director" and that a mere acknowledge of receipt of said letter would constitute a compliance with the requests contained therein I regard Desenberg's response as a "cute" and deliberately devised stratagem to evade and avoid compliance with the bargaining obligations imposed by the statute. His answer differs only in form, but not in kind, from no answer at all to a bargaining request. I find that Respondent's failure to answer the Union's bargaining request on February 23, 1968, constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. 3. Respects in which Respondent violated the Act The complaint alleges that "about February 23, 1968, and at all times thereafter, Respondent did refuse, and continues to refuse, to bargain collectively with the A.S.A." In support of this allegation, the General Counsel relies principally (a) on Attorney Desenberg's reply letter of February 29, 1968, to Attorney Ashley's letter of February 23, and (b) on Desenberg's reply letter of July 17, 1968, to Attorney Plath's letter of July 16. (a) As to the letter of February 29, 1968 Respondent' s Attorney Desenberg argues in his brief that his letter of February 29, 1968, which merely acknowledged receipt of Attorney Ashley's letter of February 23, complied with the "sole specific request by the Union" and therefore did not constitute a refusal to bargain. This conclusion is invalid because it is based on an erroneous premise. Viewed on its face and in isolation from the events which preceded it, Ashley's letter of February 23 specifically made two requests. Thus it stated ( 1) that the A.S.A. "requests that you recognize your legal responsibilities under the N.L.R.A. by engaging in immediate good faith bargaining with the Union for the purpose of reaching a collective bargaining contract covering your employees in the previous N.L.R.B. certified unit," and (2) that "it is requested that your acknowledgement of this letter be made to this office on or before March 1, 1968 ." The last sentence in the letter seeks a prompt response to both requests and warns that a failure to do so "shall be construed by the Union as a (b) As to the letter of July 17, 1968 Desenberg admitted in his testimony that the position set forth in his reply letter of July 17, 1968, stating that "it is not our intention to bargain while faced with an unfair labor practice complaint," was "in line with all the proposals we had made to the union in connection with all the other charges made against us" and that "we always proposed to go ahead when the unfair labor practice charge had been resolved." It is too well settled for extensive citation of authorities that "the filing of unfair labor charges by a union," and the processing of said charges by the Board, do "not relieve an employer of its obligation to bargain in good faith under Section 8(a)(5)" of the Act.' ° Accordingly, I find that on July 17, 1968, Respondent again refused to bargain in violation of the Act. (c) Concluding findings I find that on February 29, 1968, and at all times thereafter, Respondent had refused and continues to refuse to bargain collectively with A.S.A. in violation of Section 8(a)(5) and (I) of the Act. B. Extension of Certification Year The General Counsel contends that the period during which A.S.A.'s certification is immune from attack, that is the normal certification year, should be extended in this "Skyline Homes, Inc v N L R B., 323 F 2d 642, 647 (C.A. 5), N L R.B. v Southland Cork Co , 342 F.2d 702, 706 (C.A. 4) 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case to the period of one year from the date when Respondent begins to bargain in good faith. Respondent's attorney contends in his brief that "neither an extension of certification nor any time limitation on bargaining is called for." The Board has held that "a certified union is entitled to a full year of good-faith bargaining" [Thompson Machine & Tool Corporation, 172 NLRB No. 193, fn 1] in order "to give a certified union `ample time for carrying out its mandate and to prevent an employer from knowing that `if he dillydallies or subtly undermines union strength' he may erode that strength and relieve himself of the duty to bargain" [Mar-Jac Poultry Company, Inc., 136 NLRB 785, 786-787]. In the instant case, I find that Respondent has in fact "dillydallied" and has failed to engage in any good faith bargaining from the time of the Union's first bargaining request on January 23, 1967. During that entire period, at most only two meetings were held. After repeated efforts by the Union, the first one was finally agreed to by Desenberg for April 11, 1967, almost 3 months after the initial request and only after the Union had filed a refusal-to-bargain charge against Respondent and was required by Desenberg to withdraw it as a condition to commencing negotiations. This was in the nature of a preliminary meeting where the Union submitted its noneconomic proposals for Respondent's consideration and discussion at subsequent meetings Despite the Union's repeated efforts to arrange another meeting, over 6 months elapsed before Desenberg agreed to the second meeting in October 1967, assuming that it did in fact occur. There is no showing that anything was accomplished at this meeting. Desenberg admittedly could not remember if agreement was reached on a single item. Thereafter, Desenberg submitted a series of questions which Respondent wanted the Union to answer before it would "negotiate any kind of a contract." The questions submitted by Respondent are wholly irrelevant to the subject matters concerning which Respondent is required by statute to bargain, and answers to such questions therefore may not validly be required as a condition to such bargaining. Thereafter, Respondent, through Desenberg, continued outright to refuse to meet and bargain despite the Union's requests on at least three specific occasions. At no time did Respondent or Desenberg allay the Union's expressed concern, although requested to do so in Ashley's letter of May 26, 1967, that Desenberg "lacks the power or authority from [Respondent] to even set a date to negotiate a contract." It is clear from the foregoing, as I find, that Respondent's failure to bargain in good faith deprived the Union of the fruits of the normal certification year to which it was entitled. However, since the A.S.A.'s initial bargaining request was made about one month after its certification, I will recommend that the normal year be extended in this case to the period of 1 I months from the date when Respondent begins to bargain in good faith with A.S.A. as the recognized representative of the employees in the certified unit." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations set "Thompson Machine & Tool. supra; Waycross Sportswear, Inc, 166 NLRB 101, fn. 1, and Burnett Construction Company , 149 NLRB 1419, 1421, 1422 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 commerce and the free flow thereof. CONCLUSIONS OF LAW 1. All new and used car and truck salesmen at the Respondent's Detroit, Michigan, place of business, excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since December 20, 1966, Automotive Salesmen's Association (A.S.A.), affiliated with SIUNA, AFL-CIO, a labor organization, has been, and still is, the exclusive representative of all the employees within said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 3. By refusing at all times on and after February 29, 1968, to bargain with the aforenamed Union as the exclusive representative of the employees within the aforestated appropriate unit, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent refused to bargain with A.S.A. in violation of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist therefrom, and that, upon request, it meet with reasonable promptness, regardless of the possible pendency or processing of any unfair labor practice charges, and bargain collectively in good faith with the said A.S.A. with'respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. I will further recommend that upon resumption of such bargaining and for a period of I1 months thereafter, A.S.A be regarded as if the initial year of certification had not yet expired. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Respondent, Dean Sellers, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing or failing to meet with reasonable promptness and to bargain collectively in good faith with Automotive Salesmen's Association (A S.A.), affiliated with SIUNA, AFL-CIO, as the exclusive bargaining representative of all the employees in the following appropriate unit: All new and used car and truck salesmen at Respondent's Detroit, Michigan, place of business, excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. DEAN SELLERS (b) Refusing, during the pendency or processing of unfair labor practice charges, to meet and bargain collectively in good faith with the above-named Union, as the aforesaid exclusive bargaining representative, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectual. the policies of the Act: (a) Upon request, meet with reasonable promptness, regardless of the possible pendency or processing of any unfair labor practice charges, and bargain collectively in good faith with the aforesaid Union as the exclusive representative of all the employees in the above-described unit with respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Regard said Union, upon resumption of bargaining and for 11 months thereafter, as if the initial year following certification had not expired (b) Post at its place of business in Detroit, Michigan, copies of the attached notice marked "Appendix A."' 2 Copies of said notice, on forms to be provided by the Regional Director for Region 7, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent 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 date of receipt of this Decision, what steps Respondent has 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 A NOTICE TO ALL EMPLOYEES 317 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, with reasonable promptness and regardless of the possible pendency or processing of any unfair labor practice charges, meet and bargain collectively in good faith with Automotive Salesmen's Association (A.S.A.), affiliated with SIUNA, AFL-CIO, as the collective bargaining representative of all our employees in the appropriate unit described below concerning rates of pay , wages , hours of employment , and other conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agreement. WE WILL NOT refuse, during the pendency or processing of unfair labor practice charges , to meet and bargain collectively with the above-named Union as the aforesaid exclusive bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. The appropriate bargaining unit is: All new and used car and truck salesmen at our Detroit , Michigan, place of business , excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. Dated By DEAN SELLERS, INC. (Employer) (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 226-3244.