Beglinger-Massie Oldsmobile-Cadillac, Inc.

BEGLINGER-MASSIE OLDSMOBILE-CADILLAC, INC. Beglinger-Massie Oldsmobile-Cadillac, Inc. and Automotive Salesmen's Association (A.S.A.), Affiliated with SIUNA, AFL-CIO. Case 7-CA-6971 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 11, 1969, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation 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, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner 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 hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Beglinger-Massie Oldsmobile-Cadillac, Inc., Plymouth, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Although we agree with the Trial Examiner that employee turnover in this case would not be a factor reflecting good-faith doubt of majority, we further note that, contrary to Respondent's contention there was such turnover, Respondent's Manager Massie testified that at least five of the seven employees in the unit at the beginning of the certified period were still employed I year later. TRIAL EXAMINER'S DECISION SAMUEL M. SINGER, Trial Examiner: This case was tried before me at Detroit, Michigan , on February 3 and 4, 1969, pursuant to a charge filed on September 24 and complaint issued on November 15, 1968. The complaint alleged that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by 161 refusing to meet and bargain collectively with the Charging Party as representative of its employees. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Briefs were filed by General Counsel and Respondent. Upon the entire record' and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED Respondent, a Michigan corporation with its office and place of business in Plymouth, Michigan, is engaged in selling and servicing automobiles and trucks.' During the year ending October 31, 1968, a representative period, Respondent' s gross volume of business from sales and services of new and used automobiles exceeded $500,000; during the same period it received goods and materials valued in excess of $10,000 directly from points outside of Michigan. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction here is proper. The Charging Party (ASA) is, and has been at all times, a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. Certification of Union Based on a Board-conducted election won by ASA 5 to 2 on April 25, 1967, the Regional Director on October 3, 1967, certified it as the exclusive bargaining representative of Respondent's new and used car and truck salesmen. (Case 7-RC-7565.) On November 20, 1967, ASA filed a petition with the Regional Director to amend its certification to reflect its recent affiliation with the Seafarers International Union of North America (SIUNA), AFL-CIO. (Case 7-AC-67.) After a hearing on this petition, the Regional Director on February 9, 1968, issued a decision amending the certification . On April 26, 1968, the Board dismissed Respondent's appeal from the Regional Director's action.' 'Transcript corrected by my order on notice dated March 21, 1969. 'At the hearing, Respondent admitted the complaint allegation that "Beglinger-Massie Oldsmobile-Cadillac, Inc. [named in the caption] is the selfsame corporation" as was "Beglinger Oldsmobile-Cadillac, Inc.," which until September 1, 1967, operated under the latter name at the same location as did the first-named corporation. 'Mr. Colombo, attorney of record in this case, represented Respondent and 21 of the 55 other employers objecting to amendment of the certification in the consolidated "AC" proceeding See also Barnett Pontiac, Inc, 174 NLRB No 57; Woody Pontiac Sales, Inc, 174 NLRB No. 81. (ASA had filed separate "AC" petitions-one for each auto dealer where it had been certified .) In his February 9, 1968, decision, the Regional Director held that the affiliation in no way affected the identity of the certified ASA, the affiliated ASA constituting but "a continuation of the certified ASA." The Regional Director found no change in ASA's structure, constitution, bylaws, officers, or collective-bargaining procedures or control. It was also noted that the ASA membership had by vote approved the affiliation. Although Respondent did not litigate or question the validity of the amendment of the certification at the instant hearing, it nevertheless reserved the right to raise the matter in a future court proceeding. Respondent stated at the hearing that its only defense here is that it "had a good faith doubt" as to the Union' s majority status 177 NLRB No. 28 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Respondent's Refusal To Bargain' 1. September 18-January 24 The Union's "first contact" with Respondent regarding negotiations was on September 18, 1967,' when ASA Business Agents Shekell and White visited it and requested a bargaining meeting . Company Manager (and Secretary-Treasurer) Massie agreed to meet and said he would call his attorney, Mr. Colombo. Hearing nothing from Massie or Colombo, the Union representatives revisited Respondent on October 7 at which time Massie said he had been unable to reach his attorney, but again indicated that he was willing to negotiate a contract, explaining that he "thought the union was a real good thing for the automobile business." On October 9, Union Attorney Ashley followed up the business agents' verbal bargaining requests with a written request to bargain. On October 12, Business Agent Shekell again telephoned Massie for a meeting, but the latter stated he was still "unsuccessful in getting in touch with Mr. Colombo," requesting Shekell to call him back a few days later. When Shekell did so, on October 16, Massie told him that "he couldn't do anything now" because Colombo was "appealing the election."' On November 1, Shekell telephoned Colombo, who agreed to meet with the Union on November 12, this date later deferred to December 12. On November 29, however, Colombo canceled the December 12 meeting by letter to Union Attorney Ashley stating: Up to November 24, 1967, our client, Beglinger Oldsmobile, had agreed to meet with A.S.A. representatives for the purpose of entering into labor contract negotiations for its employees represented by the A.S.A. However, in light of the ["AC" or certification amendment] hearing scheduled for December 5, we are of the opinion that all bargaining sessions between our client and your union should be suspended and held in abeyance until such time as the NLRB reaches a decision in this matter. Certainly it would serve no useful purpose for the parties to spend time negotiating a contract if there is a serious defect in the order of certification. If and when the NLRB rules that the A.S.A.'s affiliation with the Seafarer's International Union is in full compliance with the provisions of the Labor Management Act, then our client will again be willing to meet with the A.S.A. Ashley answered this letter (and similar ones sent by Colombo on behalf of other Detroit area dealers): - As I understand the position as expressed in your letter and subsequent contacts between the Union and your various clients, you have indicated that you are refusing to bargain until the resolution of the AC Petitions. It would appear that by your taking this position that you are also indicating that you intend to 'Findings concerning the negotiations and attempted negotiations are based largely on documentary evidence and essentially uncontradicted testimony of Union Representatives Shekcll and White, in part corroborated by Company Official Massie. Shekell's testimony is supported by contemporaneous notes. Massie, who kept no such notes, displayed poor recollection of the events. 'Unless otherwise noted, all dates refer to the period September 1967-August 1968. 'Respondent had appealed for review the Regional Director 's October 3 Supplemental Decision and Certification of Representation. The Board denied the request for review on November 14. take no legal steps or initiate or encourage such steps until after the resolution of the AC Petitions. It is apparent that these various dealers have elected through you to take a parallel stand on this matter and, therefore, upon the resolution of the AC Petitions, we would naturally expect that these same dealers will take a parallel and simultaneous stand on future negotiations. Should you have any wish to clarify my understanding, please respond. Colombo did not respond . However, notwithstanding Colombo' s November 29 letter suspending negotiations until disposition of the AC proceeding, Company Manager Massie met and negotiated with the Union on three occasions (December 6 and 21 and January 8.) At the December 21 session, the Union submitted proposals and Massie presented counterproposals . At the January 8 meeting, the parties reached agreement on a substantial number of subjects (including "quite a few of the economic portions") and a further meeting was scheduled for January 15. On January 10, Union Representatives Shekell and White visited Respondent and set January 15 as the "contract deadline." Notwithstanding the foregoing, however, on January 12, Colombo wrote Ashley. reiterating his previous position that the Company would not bargain with the Union until the Board resolved the pending certification amendment proceeding . Colombo requested Ashley to "instruct the representatives of the Union not to interfere with the normal operations of our client's business by calling them at their offices for the purpose of seeking to continue negotiations." Responding to this, on January 16 Ashley wrote Colombo: . . . In light of our prior exchange of letters and previous discussions, I believe that your letter concerning Beglinger-Massie Oldsmobile is inconsistent with your prior representations. However, the following comment shall also apply to Beglinger. I take the position and have so advised the Union that the filing of an AC Petition for the purposes that the Petition in the present case was filed does not constitute a defense or bar to the Employer's duty to bargain collectively. Therefore, I am this day commencing to file 8(a)(5) Charges covering the above entitled dealerships and have advised the Union to take appropriate action on an individual dealership basis. In the meantime (January 15), Union Representatives Shekell and White presented themselves at Respondent's premises to resume negotiations in accordance with the agreement at the January 8 meeting . No negotiations were conducted, the Union acceeding to Massie's request to postpone the meeting until January 18 in view of Company President Beglinger's illness. When Union Representatives Shekell and Gough appeared at Respondent's premises on January 18, they were informed by Massie that he "would not negotiate" unless Union Attorney Ashley would first send him a letter requesting negotiations. The union representatives answered that they had been authorized to negotiate and no such letter was needed. Thereafter, the Union again on January 22 and 24 requested Massie to resume the interrupted negotiations. On January 24 Massie agreed to resume negotiations on January 26. 2. January 26 The January 26 meeting, held at the dealership, was attended by Union Representatives Shekell and Burke, BEGLINGER-MASSIE OLDSMOBILE-CADILLAC, INC. 163 and by Respondent's General Manager Massie and its 10 or 12 salesmen.' Massie stated that he "had been advised by counsel" not to sign a contract because of the pending certification modification (AC) proceeding. According to Massie, he wanted the salesmen "to understand [his] position," expressing the "hope" that "they could see fit to go ahead and work" rather than go on strike.' One salesman then said that he "was in favor of going to work" and another suggested taking a vote. Protesting that the "AC" proceeding might take a long time the Union representatives urged Respondent to consummate the negotiations, pointing out that "we have reached an agreement on a contract, all except a couple of items, which we were to finish today." Nevertheless, despite the Union's admonition to Massie that it was "against the law" to do so, an open hand vote of the salesmen was taken in the presence of Massie and the Union officials, the men raising their hands to indicate that they were willing to return to work without requiring Massie to sign a contract at that time.' 3. February 12-August 27 On February 12, Union Representative Shekell telephoned Massie "to tell him about the AC win," meaning the Regional Director's February 9 decision amending the certification to reflect ASA's affiliation with the Seafarers. Massie informed Shekell that he would contact Attorney Colombo. On February 23, Union Attorney Ashley wrote Respondent reminding him of the Regional Director' s action and requesting "immediate good faith bargaining" to complete a collective-bargaining contract. On April 29, Shekell telephoned Massie and informed him that the Board denied his appeal from the Regional Director's decision amending the certification. When Shekell asked Massie "if we could set up negotiations," the latter said "he would call Mr. Colombo about it." On June 29, the Union (through Business Agent White) wrote to Respondent complaining that "[r]epeated attempts by the Union to bargain collectively . . . have met with no success," and asked it to arrange a bargaining meeting. On July 2, Company Attorney Colombo answered that he had not yet had "an opportunity to speak to Mr. Massie" and that he would advise the Union of the Company's position after discussing the matter with him. On July 10, Colombo informed the Union that Respondent would be "willing to meet" with it, but not until August 15 because of his own commitments and Massie's vacation plans. On August 15, the Union wrote Respondent reminding it of Colombo's promise to meet and requesting a specific bargaining session. Receiving no response, the Union on 'While admitting that it was he who had notified the salesmen of the meeting, Massie claimed that the men "more or less invited themselves prior to this time." 'Massie admitted that the Company and Union "were reasonably close to a deal" by January 26, with "a few things that had not been covered." He further testified, "I understood I either had to sign a contract now or the place would be under strike," explaining that the Union gave him "a deadline to sign." 'The findings in this section are based primarily on credited portions of Massie's testimony and partly on credited portions of Shekell's testimony. I do not credit that portion of Massie's testimony in which he sought to convey the impression that the Union 's representatives agreed to suspend negotiations "until the certification had been made clear , or the affiliation had been completed." Nor do I credit his testimony that the Union agreed to take a vote of the salesmen . Massie's testimony on these two subjects was vague, evasive, and unconvincing. August 23 again requested a negotiation date. On August 27, the Union received a letter from Colombo's secretary indicating that Colombo would be unavailable until September 4. Protesting that it had still not heard from Respondent, the Union on September 6 wrote Respondent still another letter referring to its three previous bargaining requests and complaining that it had still "received no indication as to when, where or whether you intend to honor your lawful obligations as defined in the National Labor Relations Act." 4. September 11-24 On September 11, 1968, Company Attorney Colombo for the first time advised the Union that Respondent was questioning the Union's majority status and that for this reason it refused to arrange any bargaining meeting. Colombo wrote: we wish to advise you that our client has been informed by a majority of its sales employees that they are no longer desirous of representation by the Automotive Salesmen's Association, S. I. U.N.A., AFL-CIO. As a result of these conversations and discussions, the employer has a good faith doubt as to whether or not your union represents a majority of its employees as of this date. Accordingly, our client sees no useful purpose in attempting to negotiate a contract when its employees do not wish to be represented by the Automotive Salesmen's Association, S.I.U.N.A., AFL-CIO. On September 13, Union Attorney Ashley wrote Colombo that "despite" Respondent's "history of refusing to respond to" bargaining requests, "the Union was still interested in" meeting with Respondent and asked Colombo to "reconsider his position" regarding the Company's previously announced refusal to bargain. On September 24, 1968, the Union filed its refusal-to-bargain charges in this proceeding. 5. The September 25 employee letter repudiating the Union; Respondent's alleged good-faith doubt of the Union's majority status In October 1968, employee Corbeau handed Massie a letter dated September 25, 1968, purportedly signed by eight salesmen, stating: We the undersigned no longer want the Automobile Salesmens Association to represent us for collective bargaining." Although at the hearing Massie had difficulty recalling precisely when he received this letter, it is clear that it was at least a week or 10 days after September 25." It is also clear that Massie did not show or mention this letter to his attorney until October 29, 1968.'= "The record does not show how many salesmen Respondent employed at this time. Massie testified that the number employed ranged from 7 to 12 between October 1967 and September 1968. None of the signatories of the September 25 Corbeau letter was called to identify his signature "Thus, Massie at one point testified that when Corbeau "first approached me . . when he first gave me this letter, as I recall , it was old, a week or ten days or so old." In his preheanng affidavit (dated October 29, 1968) Massie fixed this time as "[a]bout two weeks ago, sometime in October 1968." Corbeau, now Respondent's sales manager, did not testify. "Massie testified that upon receipt of Corbeau 's September 25 letter in October, he "[r]ushed down the bank and put it in [his] safety deposit box" and that "it might have been a couple of weeks" later that he first showed it to Colombo. In his preheanng affidavit, Massie averred that he 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Massie testified that Corbeau, the Union's steward (dealer representative) during the period here involved, first informed him that he was "no longer interested in having ASA represent him" in late summer or early fall of 1968, indicating in his preheating affidavit, however, that "the subject . . . came up in rather a joking manner." Massie further testified that other employees also had discussed the Union with him, but had difficulty in recalling the time when and the circumstances under which he spoke to them. He then indicated that the salesmen raised the Union question "numerous" times - ever since the middle or end of 1967 - asserting that "practically every salesman" asked him "to keep the union out of our dealership."" However, Massie named five of these as "new employees," hired since the April 1967 election, recalling that several of them told him that they would not work in a unionized dealership. However, he also testified that he informed all new employees that the dealership "was a union shop," the Union having won a Board election, and that all nevertheless thereupon accepted employment. Nor, according to Massie, did any "old" employee quit the dealership because of the Union's advent although (still according to Massie) several spoke of a change of heart concerning the Union. In any event, Massie admitted that no employee ever informed him that he had withdrawn or intended to withdraw from the Union before receiving (in October 1968) Corbeau's letter to the effect that eight men no longer wanted the Union; that he "never questioned" the claim that the Union failed to represent a majority of his employees, at least until receiving that letter; and that it was "about the time [he] presented [Attorney Colombo] with this letter" on October 29, 1968, that he (Massie) first advised Colombo that a majority of his men did not want the Union." C. Conclusions 1. As noted, on October 3, 1967, the Union (ASA) was certified as bargaining representative of Respondent's automobile salesmen. After several requests to bargain, Respondent agreed to meet with it on December 12. However, on November 29, Company Attorney Colombo canceled this meeting upon the ground that Respondent would not negotiate further until the Board disposed of a first showed it to him on the day he executed the affidavit , October 29, 1968. Explaining that Colombo was in Florida during this period, Massie testified, "I don't believe I discussed it with anyone in his office until that date [October 29, 1968] " "Respondent's witness Sutton (an antiunion employee) sought to corroborate Massie . He named employees and former employees who had expressed dissatisfaction with a Union strike at another dealership and some who expressed general opposition to the Union Sutton admitted, however, that "no one ever told" him that "they withdrew their membership" or that "they did not want [the Union] to represent them." Although Sutton testified that it was his "custom " to report to Massie all antiunion remarks and "the specific ones" that made them, explaining that he was "interested in the organization and kin folks too" (he was a relative of Massie by marriage), Massie himself could not "recall anything of any importance" reported by Sutton other than "reports of rumors of strikes"; nor could he "recall anyone specifically that [Sutton ] mentioned" other than one employee (Reed) who no longer works for Respondent. "At another point, however, Massie indicated that he had conveyed such information to Colombo in "[m]id summer of '68," presumably on the basis of conversations with individual salesmen before receiving the Corbeau letter. Asked by his attorney on redirect whether he recalled talking to Colombo in "August of 1968 " (time supplied by Colombo), Massie testified, "I remember calling Mr. Colombo and telling him that it seemed I didn't know which way to go, that they were demanding me [sic] to bargain for people that didn't want to be bargained for, about that time, in the latter part of the summer." pending union petition to amend its certification so as to reflect its affiliation with an International (Seafarers). Respondent's officer and general manager (Massie) nonetheless met with union representatives three times thereafter (December 6 and 21 and January 8 ) until (in Massie's words) the parties "were reasonably close to a deal" so that on January 10 the Union set January 15 as the "contract deadline." However, in the interim Company Attorney Colombo blocked further negotiations by requesting the Union representatives "not to interfere with the normal operations of [his] client's business by calling them at their offices for the purpose of seeking to continue negotiations." Responding to this, Union Attorney Ashley wrote Colombo that "the filing of an AC Petition . . . in the present case . . . does not constitute a defense or bar to the Employer's duty to bargain collectively." At an ensuing meeting on January 26, called by the Union to consummate the negotiations, Massie declined to deal further with the Union because of the pendency of the AC petition, in accordance with Attorney Colombo's "advice" while simultaneously pressing the "hope" to his 10 to 12 salesmen present at this meeting that they "could see fit" to work without a contract. Thereupon the salesmen - over the union representatives' objection - there and then, by hand vote, in Massie's presence, expressed willingness to continue working without a contract." After the Regional Director's February 9 decision amending the certification so as to reflect ASA's affiliation with Seafarers, Respondent ignored two (February 12 and 23) union requests to resume bargaining. Following two more (April 29 and June 29) bargaining requests subsequent to the April 26 Board affirmance of the Regional Director's decision, Company Attorney Colombo on July 10 finally advised the Union that he would meet with it around August 15, delaying the meeting until then for personal reasons. Notwithstanding this, however, Respondent again failed to heed three more ensuing pleas by the Union to bargain (August 15 and 23 and September 6). The finale occurred on September 11, when Colombo wrote the Union that as "a result of .. . conversations and discussions" with employees, Respondent entertained "a good faith doubt as to whether or not your union represents a majority of its employees as of this date." In early October, Respondent received a letter, signed by eight of its salesmen , stating that they "no longer want the Automobile Salesmen's Association to represent us in collective bargaining." Massie passed this on to Attorney Colombo on October 29, 1968. 2. The statute imposes on employers the obligation "to meet at reasonable times" and confer with a view of reaching collective-bargaining agreements. (Section 8(d) of the Act.) Absent "unusual circumstances," there is a virtually conclusive presumption that a union's majority status continues for 1 year following certification. See Ray Brooks v. N.L.R.B., 348 U.S. 96; McLean, d/b/a Ken's Building Supplies v. N.L.R.B., 333 F.2d 84, 88 (C.A. 6). After the 1-year period, the presumption of majority continues, but becomes rebuttable so that the employer may refuse to bargain if he can show a good-faith doubt of the union' s continuing majority by "objective considerations." Laystrom Manufacturing Co., 151 "Based upon the above conduct, General Counsel at the hearing moved to amend the complaint to allege that Respondent violated Sec. 8(a)(1) of the Act "by conducting a poll of its employees " However, the motion was withdrawn upon Respondent's application "to adjourn this hearing until [it was] allowed to question all of the men that were present at this meeting." BEGLINGER-MASSIE OLDSMOBILE-CADILLAC, INC. NLRB 1482, 1484, See also N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 589 (C.A. 5). Furthermore, the duty to bargain during the certification year exists "even if the union loses its majority status through no fault of the employer." N.L.R.B. v. Universal Gear Service Corp., 394 F.2d 396, 398 (C.A. 6); N.L.R.B. v. U.S. Sonics Corp., 312 F.2d 610, 616 (C.A. 1); Rish Equipment Company, 407 F.2d 1098 (C.A. 4). The underlying rationale for this rule rests on strong Federal policy to encourage negotiation of collective agreements. As the Supreme Court has stated, "a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 705. The 1-year mandatory bargaining period is required to afford a newly certified union "ample time for carrying out its mandate on behalf of its members," and removes from a recalcitrant employer the temptation of "know[ing] that, if he dillydallies or subtly undermines, union strength may erode . . . [so as to] thereby relieve him of his statutory duties at any time." Ray Brooks, supra, 348 U.S. at 100; N.L.R.B. v. Universal Gear Service Corp., 394 F.2d 396, 398 (C.A. 6); Mar-Jac Poultry Company, Inc., 136 NLRB 785, 786-787. Here, Respondent openly expressed its refusal to bargain on September 11, 1968 (3 weeks before the end of the certification year), telling the Union that as a result of "conversations and discussions" with its salesmen, it entertained "a good faith doubt" of the Union's majority "as of this date." Respondent argues in its brief (pp. 8, 10, 16) that for all practical purposes the certification year had run by September 11 and that the Union's majority status became rebuttable. It then cites (at p.11) seven "objective considerations" which allegedly afforded it grounds "for believing that the union has lost its majority status since certification." These are: (a) the "close vote" in the April 25, 1967, election; (b) employee turnover during the certification year; (c) fluctuation in size of the bargaining unit; (d) failure of ASA representatives to appear at Respondent's premises; (e) the Union's "refusal to submit to an [other] election and its adamant demand to go through `AC' hearing"; (f) the salesmen's nonattendance of meetings during the certification year; and (g) "numerous discussions" between Massie and salesmen "after the certification year expired" in which "they related to him their desire not to be represented by A.S.A." Assuming, arguendo, the validity of Respondent's premise that the September 11 refusal to bargain must be tested under the rule governing certifications over a year old, I find that Respondent did not meet "the burden" incumbent upon it to show that "it had a good faith doubt"" of the Union's majority on that date. 3. To begin with, the Union won the April 1967 election by a 5 to 2 vote, by no means a "close vote" as claimed by Respondent. As to employee turnover, it is clear that this factor "is not such a change in circumstances as would relieve [Respondent] of its obligation to bargain with the Union." Superior Engraving Company v. N.L.R.B., 183 F.2d 783, 792 (C.A. 7)." Nor is the circumstance significant that the size of the unit in the certification year fluctuated from 7 to "N L R B v Gulfmont Hotel Company. 362 F 2d 588, 592 (C.A. 5); N L R B v Rish Equipment Co., 407 F 2d 1098 (C A. 4) Accord: N.L.R B v. John S. Swift Company, Inc, 302 F 2d 342, 345 Cf Stoner Rubber Company, Inc., 123 NLRB 1440, 1445; Universal Life Insurance Co, 169 NLRB No. 165 165 12. See McLean, d/b/a Ken's Building Supplies, 142 NLRB 235, enfd. 333 F.2d 84 (C.A. 6); N.L.R.B., v. Albert Armato and Wire & Sheet Metal Specialty Co., 199 F.2d 800, 802, 803 (C.A. 7); N.L.R.B. v. J. W. Rex Co., 243 F.2d 356, 360 (C.A. 3). Contrary to Respondent's claim, the circumstances (a) that ASA representatives failed to appear at Respondent's premises after January 26 and (b) that unit employees failed to attend bargaining sessions, do not establish that the employees "did not want the ASA to represent them." (Resp. Br. p.11.) In view of Respondent's express refusal to negotiate until the Board resolved the AC question1e and its dilatory tactics in avoiding and putting off negotiations even subsequent to Board resolution, the Union representatives' appearance at the dealership premises would have served no useful purpose. And as far as employee alleged nonattendance at bargaining sessions is concerned, even if true it is not the employer's concern how employees choose to conduct their affairs; nor is it unusual to confine such meetings to union agents acting as spokesmen for employees; moreover, one of the purposes of union designation is for employees' representatives, rather than employees themselves, to attend negotiation meetings. Respondent additionally urges (br. p. 11) that "[a]fter the certification year expired the salesmen had numerous discussions with Mr. Massie when they related to him their desire not to be represented by the A.S.A." However, Massie's testimony on this point is too vague and confusing to justify my crediting it. Furthermore, the alleged conversations to which Massie alluded in any event hardly "furnish[ed] a `reasonable basis' for the asserted doubt" (Laystrom Manufacturing Co., 151 NLRB 1482, 1484) concerning the Union's majority status. Massie (and employee Sutton who allegedly reported to him on employee antiunion attitude) admitted that no employee-much less a majority of employees- stated that he no longer wished to be represented by the Union. Massie's testimony indicates only that employees expressed general displeasure with the Union and its strike activities. Insofar as appears, Respondent was not advised of any unequivocal renunciation of the Union until it received the Corbeau letter in October 1968-after Respondent's September 11 letter to the Union asserting "good faith doubt" concerning the Union's majority. However, the validity of Respondent's doubt as to the Union's majority must be assessed in light of what Respondent actually knew at the time it withdrew recognition, rather than what it subsequently learned. N.L.R.B. v. Kellogg's Inc., d/b/a Kellogg Mills, 347 F.2d 219, 220 (C.A. 9). See also N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 589 (C.A. 5)." Finally, I reject Respondent's contention (br. p. 14) that "the Union's refusal to submit to an [other] election "See also Reliance Clay Products Company, 115 NLRB 1736, 1747, enfd 245 F 2d 599 (C A. 5); Woody Pontiac Sales, Inc, 174 NLRB No. 81. "Respondent's Attorney Colombo specifically requested the Union's representatives "not to interfere with the normal operations of our client's business by calling them at their offices for the purpose of seeking to conduct negotiations." "Although in its brief, Respondent claims that it had questioned the Union's majority as far back as the AC proceeding, it made no such claim in any communication to the Union until September 11, 1968 , when it withdrew Union recognition, expressing doubt that the Union "represents a majority of its employees as of this date " Cf. Woody Pontiac Sales, Inc, 174 NLRB No 81, where counsel in the instant case unsuccessfully made a similar claim 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than go through the `AC' hearing create[d] a strong presumption that even the Union knew that they did not represent a majority of the men in November of 1967," when the AC petition was filed . Since, as we have seen, the law accords as irrebuttable presumption of union majority during the certification year and a rebuttable presumption thereafter, no sound reason would appear why the Union should have had to reaffirm its majority in another Board election . To say that because ASA sought a technical correcting amendment of its certification so as to reflect its affiliation with an International through an AC proceeding (the customary way to do this) somehow supplies a "presumption" that the Union "knew" it had lost its majority is indeed farfetched , even if the Union could have accomplished that objective by the representation election route. In addition to these "objective considerations" advanced to justify its claimed good-faith doubt concerning union majority , Respondent contends (br. p. 15) that the Union is "estopped to argue that the employer has refused to bargain because of its own dilatory tactics," asserting that between January 26 and July 2, 1968, the Union contacted Respondent only once (on April 29). In so arguing Respondent overlooks the uncontradicted evidence that it was the Company which insisted that the Union keep away from it between January 26 and April 29 (the date of the Board's disposition of the AC proceeding); and that despite such insistence the Union contacted it at least twice (February 12 and 23) prior to April 29, the second time by Union Attorney Ashley who expressly demanded "immediate good faith bargaining." Nor did Respondent honor the Union's April 29 request to bargain , Massie merely stating that he "would call Mr . Colombo about it." Under the circumstances, including Respondent's dilatory tactics before and after April 29, it ill behooves Respondent to raise the question of the Union' s delinquency in pressing for negotiations. Cf. McLean, d/b/a Ken's Building Supplies v. N.L.R.B., 333 F.2d 84, 88 (C.A. 6). 4. As noted , the "objective considerations" previously discussed were advanced by Respondent in support of its claim that it had a good-faith belief that the Union lost its majority after conclusion of the 1 -year certification period. Respondent advances the "alternative" "argument" (br. p. 12) that three of these "objective considerations" (the AC proceeding, employee turnover, and unit size fluctuation) constituted "unusual circumstances even during the certification period which would have dictated that Respondent should not have bargained with the A.S.A. during said certification period." I find no merit in this contention. As to employee turnover and fluctuation of size of unit, the cases already cited (supra, secs. 2 and 3) establish that these factors do not constitute "unusual circumstances" justifying a refusal to bargain during the certification year. Indeed, in McLean, d/b/a Ken's Building Supplies, supra, 142 NLRB 235, enfd . 333 F.2d 84 (C.A. 6), the Board held that the employer was not relieved of the duty to bargain with the union even though the number of employees in the unit increased from three to six during the certification year. 3' Westinghouse Electric & Manufacturing Company, 38 NLRB 404, 409 (cited in Ray Brooks v. N.L.R.B., 348 U.S. 96, and relied on by Respondent) is distinguishable. There the Board stated that it would not "adhere" to the "usual 1 -year" rule and would entertain a new representation petition before the end of the certification year in view of a definitively "planned expansion of the . . . plant [which] will almost quadruple the number of production and maintenance employees at that plant [from 454 to 2000] in a camparatively short time." As to the AC proceeding, Respondent properly points out that in Ray Brooks the Supreme Court cited with approval Board cases holding that a certified union which "dissolved or became defunct" or was involved in a "schism" (factional fight) presented "unusual circumstances." 348 U.S. at 98. However, there is no sound analogy between these situations and the AC proceeding in this case. There is a real distinction between a defunct union or a union involved in a schism transferring its certification "to a new local or international" (Ray Brooks, at 98), and an existing and functioning union (ASA) retaining its certification but merely affiliating with an International. "A change [or act] of affiliation is little more than a change in name." Cochran Co., Inc., 112 NLRB 1400, 1408. See also Continental Oil Company v. N.L.R.B., 113 F.2d 473, 478 (C.A. 10). In any event, it is unnecessary to decide whether an AC proceeding to establish or change affiliation constitutes a defense to a refusal to bargain as a matter of law. (Cf. Barnett Pontiac, Inc., 174 NLRB No. 57.) It is sufficient to point out that here Respondent at no time claimed that its refusal was predictated on the Union's resort to the AC proceeding. Cf. Woody Pontiac Sales, Inc., 174 NLRB No. 81. On the contrary, in suspending negotiations because of that proceeding, Respondent indicated that it was merely postponing negotiations pending amendment of the certificate. I find and conclude that Respondent's refusal to bargain collectively with the Union on and after January 26, 1968, 21 was based on a rejection of the collective-bargaining principle and in order to gain time in which to undermine the Union' s representative status; that its openly announced refusal to bargain on September 11, 1968, was not based on a good-faith doubt of the Union's majority status; and that any loss in the Union's majority is attributable to Respondent's dilatory tactics and refusal to bargain . Accordingly, Respondent's conduct was violative of Section 8(a)(5) and (1) of the Act. Cf. Woody Pontiac Sales, Inc., 174 NLRB No. 81; Barnett Pontiac, Inc., 174 NLRB No. 57.22 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act. 'See also N L.R.B. Y. Armato, supra, 199 F.2d 80 (C.A. 7). "As noted, General Manager Massie met with the Union three times (and was "reasonably close to a deal") before January 26, despite his attorney' s November 29, 1%7, communication to the Union that Respondent was suspending negotiations until the Board resolved the AC question. I find that Massie bargained in good faith dung these meetings. Massie suspended further bargaining at the January 26 meeting on advice of counsel. "In view of Sec. 10(b) of the Act, Respondent may not be held responsible for conduct prior to March 24, 1968 , the date fixed by the filing of the Union's charge in this case Accordingly, Respondent's unlawful refusal to bargain is found to have commenced on that date. However, Sec. 10(b) of the Act does not preclude consideration of Respondent's prior conduct for the purpose of assessing "the true character of later events within the limitations period . [citing cases] The collective impact of long delay [in complying with the duty to bargain ], found in part from evidence outside the six-month period , would be a proper basis for a finding by the N .L.R.B. that bargaining was not conducted in good faith." N.L R.B. v. Fitzgerald Mills Corp., 313 F.2d 260, 264 (C.A. 2) See also N.L.R.B. v. General Shoe Corporation, 192 F.2d 504, 507 (C.A. 6). BEGLINGER-MASSIE OLDSMOBILE-CADILLAC, INC. 2. All new and used car and truck salesmen at Respondent's Plymouth, 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 purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since October 3 , 1967, the Union has been the exclusive representative of all employees within said appropriate unit for purposes of collective bargaining in respect to wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 4. By refusing since March 24, 1968, to meet and bargain with the Union as exclusive representative of the employees in the above-described appropriate unit, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that Respondent be required to cease and desist from engaging in such unfair labor practices and, upon request, bargain collectively with the Union concerning wages, rates of pay, hours, and other terms and conditions of employment, and to embody in a signed agreement any understanding reached. Since Respondent's failure to bargain has deprived the Union of that "full year of good-faith bargaining" to which it was "entitled" ( Thompson Machine & Tool Corporation, 172 NLRB No. 193, fn.1) and since it is desirable and no more than fair to place Respondent and the Union in as nearly the same situation as possible to that which existed before Respondent unlawfully ceased bargaining, I will recommend that the certification year be extended for a period of 9 months32 from the date when Respondent in compliance with the order herein begins to bargain in good faith with the Union as the recognized representative of the employees in the appropriate unit. See Barnett Pontiac, Inc., 174 NLRB No. 57, and cases in footnote 1 cited therein. See also N.L.R.B. v. Miami Coca-Cola Bottling Company, 382 F.2d 921 (C.A. 5); N.L.R.B. v. Rish Equipment Company, 407 F.2d 1098 (C.A. 4). RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend that Respondent, Beglinger-Massie Oldsmobile-Cadillac, Inc., of Plymouth, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to meet and bargain collectively in good faith with Automotive Salesmen's Association (A.S.A.), "The extended period is based on the fact that Respondent met and bargained with the Union until January 8, 1968 (about the end of the third month of the certification year), suspending further bargaining on January 26, 1968. Cf. Thompson case, supra; Mar-Jac Poultry Company, Inc.. 136 NLRB 785, fn. 6. 167 affiliated with SIUNA, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate bargaining unit , with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and embodying in a signed agreement any understanding reached. (b) In any like or related manner interfering with the effort of the above-named labor organization to bargain collectively on behalf of the employees in the bargaining unit. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, meet and bargain with the above-named labor organization, as the exclusive representative of all of its employees in the appropriate bargaining unit with respect to wages , rates of pay, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached . The certification period is hereby extended to a date 9 months from the date Respondent commenced or commences to bargain in good faith in compliance with this Order, with the Union as the recognized bargaining representative in the appropriate unit. (b) Post at its place of business in Plymouth , Michigan, a copy of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 7, after being signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, 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 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 ALL EMPLOYEES OF BEGLINGER-MASSIE OLDSMOBILE-CADILLAC, INC. Posted pursuant to a Recommended Order of a Trial Examiner of The National Labor Relations Board, an Agency of The United States Government 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a trial at which all sides had the chance to give evidence, it has been decided that we, Beglinger-Massie Oldsmobile-Cadillac, Inc., violated the National Labor Relations Act, as amended, and we have been ordered to post this notice. Among the rights which the National Labor Relations Act gives you, as an employee, is the right to bargain collectively through a representative of your own choosing . Accordingly, we hereby assure you that: WE WILL, upon request, meet and bargain collectively with Automotive Salesmen's Association (A.S.A), affiliated with SIUNA, AFL-CIO, as your exclusive representative in the appropriate bargaining unit, regarding wages, rates of pay, hours of employment, and sign our name to an agreement containing any understanding reached. The bargaining unit is: All new and used car and truck salesmen at our Plymouth, Michigan place of business, excluding office clerical employees, guards and supervisors as defined in the Act. Dated By BEGLINGER-MASSIE OLDSMOBILE -CADILLAC, 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 313-226-3200.