Cavalier Olds, Inc.

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cavalier Olds, Inc. and Tom Farabaugh Company and Godard VonGunten Sales, Inc. and Burt Greenwald Chevrolet, Inc. and Lyle Chevrolet Co. and Meech Pontiac, Inc. and Summit Buick, Inc. and Wallace Oldsmobile, Inc. and Professional Automobile Salesmen Union, Local 436, affiliated with Office and Professional Employees International Union, AFL-CIO. Cases 8-CA-5194, 8-CA-5196. 8-CA-5197, 8-CA-5198. 8-CA-5199, 8-CA-5200. 8-CA-5202, and 8-CA-5204 September 18, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 17, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that the Respondents cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiners Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, 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 exceptions and brief, and the entire record in this 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 Recommended Order of the Trial Examiner, and hereby orders that the Respondents. Cavalier Olds, Inc., and Summit Buick, Inc., both of Akron, Ohio; Toni Farabaugh Company, Meech Pontiac, Inc., and Burt Greenwald Chevrolet, Inc , of Barberton, Ohio; Lyle Chevrolet Co , and Wallace Oldsmobile, Inc.. of Cuyahoga Falls, Ohio; and Godard VonGunten Sales. Inc., Tallmadge, Ohio, their officers, agents, successors. and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL FXAMINER'S DECISION STATrMFNT OF IIIP CASF FANNIE M. Boyi.s, Trial Examiner. These consolidated cases were tried before me at Akron, Ohio, on April I. 1969. The complaint against each Respondent, issued on February 5, 1969 pursuant to charges and amended charges filed on October 30, 1968, and January 22. 1969, alleged that it had violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with the labor organization certified by the Board as the bargaining representative of its employees. Each Respondent filed an answer denying that it had engaged in the unfair labor practice alleged. After the conclusion of the hearing counsel for the General Counsel filed a helpful brief Counsel for Respondents filed none. Upon the entire record, upon my observation of the sole witness. and upon a consideration of the General Counsel's brief. I make the following FINDINGS OF FACT I. THr BUSINESS OF RFSPONDENTS As alleged in the complaints and admitted in the answers, each Respondent is an Ohio corporation, engaged in Ohio in the retail sale of new and/or used automobiles Each annually, in the course and conduct of its business operations, derives in excess of S500,000 in gross receipts from the retail sale of automobiles and each annually receives at its place of business in Ohio, directly from points outside the State, products valued in excess of $50,000. On the basis of these admitted facts, it is found that each Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein 11. THP LABOR ORGANIZATION INVOI VED Professional Automobile Salesmen Association, herein called PASA, was certified by the Board as the collective bargaining representative of each of Respondents' employees in an appropriate bargaining unit at various times in August, October or November 1967 1 find that at all times material herein it was a labor organization within the meaning of Section 2(5) of the Act. On October 9. 1968, the Board amended the certification of PASA, in each of the representation cases in which that labor organization had been certified as representative of each of Respondents' employees, to reflect that Professional Automobile Salesmen Union, Local 436, Affiliated with Office and Professional Employees International Union. AFL-CIO. herein called Local 436, was a continuation of and successor to PASA. I find that Local 436 is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Except where necessary hereinafter to distinuish between PASA and Local 436, they will be treated as' one and the same labor organization and will he referred to as the Union 11I. IIII UNFAIR LABOR PR&CTiCES A The Issues Posed Each Respondent admits that it has refused to bargain and continues to refuse to bargain with the Union as the 178NLRB No.79 CAVALIER OLDS, INC. 491 representative of its employees in the appropriate bargaining unit consisting of the new and used car salesmen, licensed by the State of Ohio and employed by each Respondent. Each, however, defends its refusal on the following grounds. It asserts that on June 3. 1968, the first date on which Respondents are alleged in the complaint to have refused to bargain with PASA, PASA was defunct and no longer existed as a labor organization. It further asserts that the Board's later amendment of certifications on October 9, 1968 to reflect Local 436 as the bargaining representative of each of Respondents' employees is invalid and of no effect. It denies that Local 436 is the collective-bargaining representative of the employees of any of the Respondents here involved. The General Counsel, on the other hand, contends that PASA and Local 436 are one and the same labor organization and that Respondent unlawfully refused to bargain with that labor organization when it was called PASA as well as when it was called Local 436. The subsidiary facts pertinent to the issues thus presented are now set forth. B. Events Leading to Amended Certification on October 9, 1968 1. Early ineffectual attempts of PASA to affiliate with OPEIU and have its certifications amended PASA was certified as the bargaining representative of' the salesmen employed by Meech Pontiac, Inc., on August 8, 1967, of those employed by Wallace Oldsmobile, Inc. on November 28, 1967 and of those employed by each of the other Respondents on October 26, 1967. Early attempts of PASA to affiliate with Office and Professional Employees Union, AFL-CIO, herein called OPEIU, are described in detail in the Regional Director's Decision and Order of April 24, 1968, dismissing petitions by Local 436 to amend the certifications of PASA as bargaining representative of employees at each Respondent These facts arc briefly summarized below. As early as September or October 1967 there were discussions at PASA membership meetings about the desirability of affiliating with some international union. Upon the first occasion when a vote was taken as to whether PASA should affiliate with OPEIU. the proposal was rejected. However, at another membership meeting held on January 9, 1968. and called for the purpose of voting on the question of affiliation with OPEIU, a majority of those voting approved affiliation. Notice of this meeting, however, was given to members only by word of mouth or telenhone and only 40 to 50 out of a total of 326 members attended the meeting. They voted unanimously by show of hands to affiliate ' PASA's Business Manager Kenneth Ciarcia. then applied to OPEIU for a local charter and PASA was issued a charter on January 22, 1968 as Local 436. As a result of questions arising as to the adequacy of notice to members and the conduct of the affiliation vote itself at the January 9 meeting. PASA's board of directors decided that a new affiliation vote should be taken. On March 4. 1968, letters were mailed to all salesmen who had signed PASA authorization cards, informing them that a three part resolution would be voted upon by secret 'The figure 326 was the total of all who had ever signed an authorization card for PASA in either the Cleveland or Akron areas. whether still employed in the industry or not The Respondents here involved are located in the greater Akron area. ballot on March 13, 1968. Part I of the resolution provided that PASA be dissolved and that members of PASA become members of Local 436: Part II provided that all Board certifications and pending petitions, together with all assets and liabilities of PASA be transferred to Local 436; and Part III provided that PASA's constitution, bylaws and procedures be continued by Local 436 and submitted to OPEIU for its approval. The balloting which followed was conducted by PASA's Business Manager Ciarcia and other PASA officers Each person who appeared to vote at the appointed polling places merely signed his name and address on a sheet of paper without indicating what automobile dealer he worked for or, indeed, whether he worked as a salesman at all He was given a small sheet of paper on which he was instructed to vote "yes" or "no." Only 18 persons, including Ciarcia (who was not employed by any automobile dealer) voted. All voted "yes" and this was construed as a unanimous vote for affiliation. Following the March 13 balloting all assets of PASA were transferred to Local 436. The same individuals who held offices with PASA, with the exception of one who resigned from PASA, have continued as officers of Local 436. The latter occupies the same offices and has the same telephone number as that previously used by PASA. Following the affiliation vote, Local 436 filed with the Regional Director of the Board petitions, in Cases 8-AC-26 through 40. to have the certifications amended to reflect the change in name and affiliation. A hearing on those petitions was held on March 29, 1968. The Respondents in the consolidated cases before me are only 8 of the 15 employers involved in Cases 8-AC-26 through 40. A transcript of the hearing in the latter proceeding was received in evidence at this hearing. On April 24, 1968, the Regional Director issued his Decision and Order dismissing the petitions, finding on the basis of the facts recited therein. greatly condensed here, that a serious question existed concerning whether the affiliation of PASA with OPEIU truly reflected the wishes of a majority of the members of PASA or of the employees in the units in which amendments of the certification were sought 2. Further attempts to perfect affiliation and have certifications amended After receiving the Regional Director's April 24 Decision, the Union, continuing to act through its same officials, took renewed steps to perfect the affiliation in such a manner as it believed would result in an amendment of the certifications. These steps, which are summarized below. are set forth in detail in the Regional Director's Decision and Order amending certifications issued on October 9, 1968, and received in evidence in this proceeding A membership meeting, pursuant to letters of notice sent to approximately 139 individuals in the greater Akron area in which all of Respondents are located, was held on July 9, 1968. At this meeting affiliation with OPEIU was again discussed. It was decided by those attending to hold another meeting on July 30 to further discuss affiliation and to take a vote on the matter. Following another letter to the approximately 139 individuals, in which the purpose of the July 30 meeting was announced, a meeting was held and a vote was taken. The balloting was conducted under the supervision of a priest from a local Roman Catholic Church. Each voter was required to sign a registration sheet showing his name and the name of the automobile 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agency for whom he worked. He was given a ballot on which was printed the question whether he wished "to affiliate with the Professional Automobile Salesmen Union, Local 436, who is affiliated with the Office and Professional Employees International Union, AFL-CIO" and was instructed to mark an "X" in either the "yes" or "no" box to express his preference. Of the 51 votes cast, 49 voted for affiliation Following- this vote Local 436 again filed petitions to amend certifications. These petitions, in Cases Nos. 8-AC-55 through 64, involved each of the 8 Respondents here involved and two other employers. A hearing on these petitions was held on September 24, 1968 On the basis of the evidence adduced at that hearing which is only briefly summarized in the preceding paragraph, the Regional Director found that Local 436 "is. in reality, a continuation of PASA which was certified in the original representation cases" and "is the successor of PASA as the representative of the employees involved here." He accordingly granted the petitions to amend the certifications by substituting "Professional Automobile Salesmen Union. Local 436, affiliated with Office and Professional Employees International Union, AFL-CIO" for "Professional Automobile Salesmen Association" as the name of the Union certified as bargaining representative for the salesmen working for each Respondent. Respondents and the two other employers affected by the amended certifications, acting through their attorney, Edward C Kaminski, filed with the Board a request for review of the Regional Director's Decision and Order. The Board, on November 7, 1968, denied the request for review on the ground that it raised no substantial issues warranting review. The Trial Examiner is accordingly bound by the Decision and Order of the Regional Director amending the certifications. C. The Refusals To Bargain On January 26, 1968, Ken Ciarcia, business manager of PASA (who continued in the same capacity with Local 436), wrote each Respondent, on PASA's letterhead, that members of PASA were signing membership cards for Local 436, affiliated with OPEIU, but that this action would not disturb the bargaining relationship with Respondents established by the Board's certifications. He promised to forward copies of the Union's proposed agreement in the near future. He did, in person, deliver copies of the proposed contract to each of the Respondents within 3 or 4 days thereafter. In a letter dated February 2, 1968, each Respondent. through its attorney, Kaminski, replied that PASA was the certified bargaining representative and that Respondents would not recognize or bargain with Local 436. On February 15, 1968, Ciarcia (this time on a letterhead of Local 436), wrote each Respondent that PASA and Local 436 were "one and the same," and requested a meeting to start negotiations on the proposed agreement. Kaminski, on behalf of each Respondent, replied by a letter to Ciarcia dated February 20. He reiterated the position stated by him in his February 2 letter and requested that all future communications be sent to him as labor relations counsel for each of the Respondents - 'Following the receipt of this letter, Ciarcta, as the Union' s business manager, filed with the Regional Office of the Board refusal-to-bargain On May 23 or 27, 1968, following the initial denial by the Regional Director of PASA's petition to amend the certifications, and after consulting counsel, Ciarcia, as "business manager" again wrote each Respondent (this time on blank stationery), with a copy of his letter to Kaminski, stating that PASA, "assisted by" Local 436, desired to meet with each Respondent for the purpose of negotiating an agreement. Kaminski, as labor relations counsel for each Respondent, replied on June 3. 1968. He stated that he regarded Ciarcia's letters as efforts of Local 436 to go around the Board's denial of the petitions to amend the certifications "and assume the bargaining rights of the defunct" PASA. He stated that each Respondent would accordingly refuse the demand for bargaining made in the May 23 and 27 letters. On October 19, 1968, following further steps to perfect affiliation and the Board's amendment of the certifications on October 9 (which have been described in the preceding section of this Decision), Business Representative Ciarcia again wrote each Respondent, with a copy of the letter to Kaminski, requesting a meeting with each Respondent, before October 29 if possible, for the purpose of negotiating an agreement with Local 436. Receiving no response to these letters, the Union filed refusal-to-bargain charges with the Board on October 30, 1968. On or about November 7, 1968, Respondents Cavalier Olds, Inc.. Lyle Chevrolet Co. and Burt Greenwald Chevrolet, Inc., each filed a petition (8-RM-546, 8-RM-545 and 8-RM-547) with the Regional Director questioning the continued representative status of the Union among its employees and requesting the Union's decertification Each of these petitions was dismissed on the ground that the refusal-to-bargain charges filed against each Respondent on October 30 were still pending.' On November 26, 1968, Kaminski, as counsel for each of the Respondents, wrote the Regional Office of the Board, explaining the position of each Respondent with respect to the refusal-to-bargain charge which had been filed against it. He stated this position to be: It is the position of the Employers that they are not obligated to bargain with the Charging Party, PASU Local 436. The certified bargaining agent is the now defunct PASA and the Employers doubt that the Charging Party represents the majority of the salesmen working for each Employer. The Employers maintain that they are not obligated to bargain with PASU Local 436. On behalf of the Respondents Cavalier Olds, Inc., Lyle Chevrolet Company and Burt Greenwald Chevrolet, Inc., Kaminski wrote separate letters explaining that each had charges as well as petitions to amend the certifications On advice of a Board agent, however, he withdrew the charges and proceeded merely with the petitions to amend the certifications . These petitions, as already shown, were dismissed by the Regional Director on April 24, 1968 'The charges filed on October 30 alleged that each Respondent had refused to bargain with Local 436 since on or about October 22, 1968 Amended charges were filed on January 22, 1969, alleging , in addition, that each Respondent had refused to bargain with PASA on or about June 3, 1968 Because Sec 10(b) of the statute precludes the issuance of a complaint based on unfair labor practices occurring more that 6 months before the filing of a charge, the complaint does not encompass refusals of the Respondents to bargain prior to June 3, 1968. The alleged refusals to bargain on June 3, 1968, being within 6 months of the original charge, are not barred under Section 10(b) Cooper Thermometer Company, 160 NLRB 1902, 1915. Kansas Milling Co v NLRB B. 185 F 2d 413, 415 (C A 10) CAVALIER OLDS, INC. filed a decertification petition because of a doubt of the Union's majority status based on the fact that none or less than a majority of its employees had attended the July 30. 1968, meeting at which the last affiliation vote was taken. I find no merit in these defenses asserted by Respondents. As already indicated, Local 436 is merely a continuation of and successor to PASA Lach must be treated as one and the same labor organization. At the outset, therefore, Respondent's contention that PASA became defunct when it made an ineffectual attempt in March 1968 to dissolie and transfer its affiliation and certification to Local 436 must be rejected Respondents cannot have their cake and cat it too. If the "yes" votes on the three part resolution voted on be counted as validly effecting a dissolution of PASA, as Respondents apparently contend, then they must also be considered as validly effecting the affiliation with Local 436 and the transfer of the certifications to the latter Union The intention of the ollicers and members of PASA was clear. They were voting on whether their labor organization certified by the Board should deal with the employers as a local of an international union, namely the OPEIU, or remain an independent union. The voter's choice was one "yes" or "no" vote on the entire resolution, not on any single part of the three part resolution. If their vote in March was ineffective, as the Board found, to accomplish a valid affiliation with and transfer of PASA's certification to Local 436, it was also ineffective to accomplish a dissolution of PASA. Within the 6 month period preceding the filing of the October 30, 1968 charges. the Union. while acting under the name of PASA as well as acting under the name of Local 436, requested each Respondent to bargain with it and each Respondent refused and has continued to refuse to bargain. Since, as I have found, Local 436 is merely a continuation and successor of PASA, both are to be regarded as one and the same labor organization and it is unnecessary for purposes of this proceeding, to determine whether a refusal to bargain at any given time was with PASA or with Local 436. These refusals, 1 find, were in violation of Section 8(a)(5) and (I) of the Act whether the requests were made in the name of PASA "assisted by" Local 436, as were the May 23 and 27 requests, or in the name of Local 436, as were the October 19 requests. General Electric Company, 173 NLRB No. 46 It would be no defense to these refusals to bargain even if a majority of the employees in the appropriate units no longer desired the Union to represent them, for a bargaining relationship once established must be given a fair chance to succeed before the majority status may successfully be challenged. All of these Respondents had refused to bargain with the Union within the certification year. As the Supreme Court ruled in Ray Brooks v. N L R B . 348 U.S. 96. even in the absence of employer unfair labor practices which might contribute to a loss of the majority, there normally is an irrebuttablc presumption as to the Union's continuing majority status within the certification year.' Here, each Respondent had unlawfully refused to bargain with the Union during the certification year and dimunition in Union support. if any occurred, must be attributed to Respondents' unfair labor practices. To remedy these refusals to bargain, each Respondent must now he required to bargain with the Union. Franks Brothers Company v. N L.R.B., 321 U.S 702. 'Moreover, even after the certiiication year the presumption of majority status continues and may be rebutted only by evidence furnishing a CON( LUSIONS OF LAW 493 I The following employees of each Respondent constitute separate appropriate bargaining units within the meaning of Section 9(b) of the Act. All new and used car salesmen, licensed by the State of Ohio, excluding office clerical employees, professional employees, irregular part-time salesmen, guards and supervisors as defined in the Act 2. The Union, whether acting in the name of PASA or in the name of Local 436, has at all times since its certifications in 1967 been the exclusive representative of all the employees in the aforesaid units for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment 3 By refusing on and after June 3, 1968. to bargain collectively with the Union, each Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act Ttir. REMI DY It having been found that each Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, my Recommended Order will require that each Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Since the Union's certifications were amended on October 9, 1968 to reflect that Local 436 is the correct name of the bargaining representative of the salesmen of each Respondent, my Recommended Order will require that each Respondent, upon request, shall bargain with Local 436. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in these consolidated cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that each of the Respondents, Cavalier Olds, Inc.. Tom 1-arabaugh Company, Godard VonGunten Sales. Inc , Burt Greenywald Chevrolet, Inc , Lyle Chevrolet Co., Meech Pontiac, Inc.. Summit Buick, Inc. and Wallace Oldsmobile, Inc.. their officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Refusing to bargain with Professional Automobile Salesmen Union. Local 436. Affiliated with Office and Professional Employees International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All new and used car salesmen, Licensed by the State of Ohio. excluding office clerical employees, professional employees, irregular part-time salesmen, guards and supervisors as defined in the Act (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act reasonable basis for doubt as to the continuing status, a type of evidence not presented by any of the Respondents here involved Celanese Corporation of America , 95 NLRB 664, n' L R B v . Gulfmont Hotel Company, 362 1. 2d 588 (C.A 5) 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to effectuate the purposes of the Act (a) Upon request, bargain collectively with the above named Union as the exclusive representative of all the employees in the unit described above concerning rates of pay, wages, hours of employment and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at their respective dealerships copies of the attached notice marked "Appendix"' Copies of said notice, on forms provided by the Regional Director for Region 8, shall, after being duly signed by an authorized representative of each Respondent, be posted immediately upon receipt thereof and be maintained by it thereafter for 60 consecutive days in conspicuous places, including all places where, notices to employees are customarily posted. Reasonable steps shall be taken by each Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify ' the Regional Director for Region 8. in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply with the terms hereof.' '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 said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith APPENDIX NOTICE TO A r_f. EMPLOY12ES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to eflectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- W'F WILL No-1 refuse to bargain collectively with Professional Automobile Salesmen Union, Local 436, affiliated with Office and Professional Employees International Union, AFL-CIO as exclusive representative of our employees in the following appropriate unit All new and used car salesmen, licensed by the State of Ohio, excluding office clerical employees, professional employees, irregular part- time salesmen, guards and supervisors as del'ined in the Act. WE WILL, upon request, bargain collectively with the aforesaid union and will embody any understanding reached in a signed agreement. WF WILI NOT by refusing to bargain with the aforesaid labor organization or in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. (Employer) Dated By (Representative) (Title) I his 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, 1695 Federal Office Building, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 522-3715.