Brooks Biddle Chevrolet Co.

BROOKS BIDDLE CHEVROLET CO. Brooks Biddle Chevrolet Company and Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Case 19-CA-4159 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING , BROWN, AND JENKINS On April 25, 1969, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision. Thereafter, the Respondent filed exceptions to the Decision and a brief in support thereof. Pursuant to Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner' s Decision , the exceptions and briefs, 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 hereby orders that Respondent , Brooks Biddle Chevrolet Company, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. As a valid collective-bargaining agreement was in effect at the time of the alleged refusal to bargain in this case, it is unnecessary to pass upon the Union's representative status herein . See Shamrock Dairy, Inc, 119 NLRB 998, 1002. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S . BENNETT, Trial Examiner : This matter was heard at Seattle, Washington on February 27, 1969. The complaint, issued December 17 and based upon a charge filed October 11, 1968 , by Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, 495 herein called the Union, alleges that Respondent, Brooks Biddle Chevrolet Company, had engaged in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case , and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Brooks Biddle Chevrolet Company is a Washington corporation maintaining its principal office and place of business in Seattle, Washington where it is engaged in the retail sale and servicing of new and used automobiles. It annually enjoys a gross volume of business in excess of $500,000 and purchases goods valued in excess of $50,000 from suppliers located outside the State of Washington. I find that the operations of Respondent affect commerce within the meaning of Section 2 (6) and(7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Automobile Drivers and Demonstrators Union, Local 882, affiliated with international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue For some years, the Union was the representative of the new and used car salesmen of Hasbrouck Chevrolet Company of Seattle, Washington . In February 1966, Respondent purchased this automobile dealership and the name was duly changed . There was no change in the nature of the business; the same sales facilities were used; and the same personnel were retained . These sales employees had been covered by a union security labor agreement with the Union, renewable annually in May, which, inter alia, obligated Hasbrouck Chevrolet Company to make payments into the Western Conference of Teamsters Pension Trust Fund . There were approximately 7 employees in the unit as of February 1966, all of whom belonged to the Union. The General Counsel contends that Respondent duly acknowledged to the Union in February that it was bound by this agreement; that subsequent to February Respondent made contributions to the Pension Trust Fund; that by adopting this labor contract and making these contributions Respondent recognized the Union; and that by unilaterally stopping these payments on July 10, 1968, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. Respondent in effect contends that it has not honored this contract and that it is under no obligation to bargain with the Union. B. The Refusal To Bargain 1. Appropriate unit The complaint alleges, Respondent admits and I find that all new and used car salesmen employed by Respondent, excluding office clerical and professional 177 NLRB No. 78 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Recognition and majority representation Respondent admits that when it took over the business in February of 1966 a contract between the Union and its predecessor covered these employees. As noted , this was a contract which automatically, renewed itself in May for a year and from year to' year thereafter absent 60 days advance notice to terminate . This was a union shop contract and all seven in the unit were union members. Secretary-treasurer James Clark of the Union has known Biddle for many years . He testified that upon learning of the sale of the business he telephoned Biddle and pointed out that there was an existing contract with the Union. Biddle replied, "Yes, I know there is one in effect. I fully intend to live up to this contract as it has been previously." Biddle added that he was too busy at the moment to sign , but that he certainly would live up to it. Clark placed this in February or March. Biddle in essence did not deny this . He testified that Clark called him , mentioned the contract and asked if he contemplated any changes. Biddle replied that he did not, and that he would use the same personnel. He admitted telling Clark that he would make payments , as required by the contract, to the Pension Trust Fund and also retain the existing commission structure provided in the contract. Biddle claimed also that Clark mentioned a contract and he replied that he had not signed any. Biddle later testified that he agreed to make pension payments for those then on the sales force. As noted, this was a union shop and all seven employees had joined. Respondent has placed reliance on a letter sent to it by Clark on March 3, 1966, together with an enclosure for signature by Respondent accepting the existing contract in its entirety. Respondent has since either refused to sign or has avoided signing this document. Clark testified that he believed this letter was sent to Biddle prior to that telephone conversation described above. The context of the letter supports Clark. It comments on the "good news" that Biddle was the new operator of the business, wished him prosperity and enclosed the short-form contract. The letter is manifestly consistent with an initial contact. Biddle's testimony was marked by vagueness in certain areas and his testimony that he agreed to continue the existing pension payments and rates of commission supports Clark. Clark is also corroborated here by part-time business agent Lauren Gallagher, who testified that he visited Biddle sometime between February and April and expressed concern whether the men were still enjoying the benefits of the contract. Biddle "assured me it was, it would go on the same as it had always been and there would be no changes." Biddle admitted that Gallagher made visits concerning dues delinquencies, but claimed that he never discussed the contract . He admitted, however, that he never told Gallagher that he was not bound by the contract . Moreover, as will appear, Biddle is refuted by his subsequent conduct. I therefore credit Gallagher and Clark. I find that in March 1966 Respondent agreed to honor and adopted and ratified the existing contract and its provisions. I further find that Respondent did not challenge the union majority in any way . Indeed, it could not, because it well knew that its sales employees were union members. And, as appears below, it proceeded to make payments for all to the Pension Trust Fund. I find that in February 1966 the Union was the majority representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. And, for reasons appearing below, I find that it was said representative thereafter at all times material herein. 3. Application of the contract As stated, Respondent did much more than agree to honor the contract because it actually applied the contract to its employees in several respects. Turning initially to the Pension Trust Fund to which payments have been made under the contract, the record discloses the following. Payments are due on the 10th of the month following each quarter. That for January 10, 1966, reflects payments for seven employees, the total complement at that time. That for April 10, 1966, also discloses payments for seven employees, including a new hire, J. E. Sherwood.' That for July 10, 1966, contains nine names with payments for six but not for three new hires, Anway, Byers and Nordness for whom payments were not due.' That for October 10, reflects payments for the nine named in the previous quarter. The remittance for January 10, 1967, lists seven employees and includes a payment for Dewey Thompson who was hired during the previous quarter. That for April 10, 1967, includes payments for the seven reflected in the previous quarter. Turning to the payment for January 10, 1968, this reflects payments for six employees, including G. R. Lyons who was hired on December 1, 1967. That for April 10, 1968, reflects payments for six employees and also indicates that five of the six, excluding R. F. Rice, were terminated by Respondent between February 15 and March 15. That for July 10, 1968, reflects payments only for Rice. The ostensible solitude of Rice is explained by the fact that Respondent made new hires to replace those terminated in 1968 but chose not to apply the union security clause to them. Similarly, it did not make payments for these hires to the Pension Trust Fund. Biddle explained Rice's solitude as follows. The Pension Trust Fund reports for the third and fourth quarters of 1967 reflect six names. However, there were three new hires during these quarters whose names do not appear thereon. In the first and second quarters of 1968, hiring was expanded and the number of nonunion men exceeded the union men. Biddle conceded that he did not advise the hires of the union security clause as the contract required him to do and that he did not tell the men they were required to join the Union. To sum up, Respondent applied the contract and made payments to the Pension Trust Fund through the May 1966 and May 1967 renewals of the contract. Then, during the last year of the May 1967-May 1968 renewal it started to violate the contract, although it did pay on a selective basis, as stated, until the instant charge was filed. I believe this is a clear case of estoppel because Respondent is in the position of pleading its own breach of the contract it has long honored in order to justify its position herein. Biddle also admitted that he had honored the minimum commission sales price in the contract during 1966 and 1967, but had departed therefrom in March of 1968.' 'One of the earlier seven left during the first quarter. 'Payments are not due until after 80 hours of employment 'While the charge was not filed until October 11, 1968, 1 find that the continued failure to make payments on additional sales cures any statute BROOKS BIDDLE CHEVROLET CO. Respondent has adduced evidence that it operated with longer hours than those called for in the contract. But Secretary-treasurer Clark uncontrovertedly testified that during 1967 Biddle had called him about the problem, pointing out that his competitors were doing so. Clark informed him that he was authorized to meet these hours of his surrounding competitors. There is evidence that Respondent did assist the Union in policing the union security clause. Thus, on August 21, 1967, Business Agent Gallagher wrote to Biddle and demanded the discharge of employees Thompson and Lyons if dues arrears were not paid. He made a similar request on November 27 concerning employee Sleeman. Biddle testified that he turned these letters over to the concerned individuals and merely stated "Read this." He did not terminate the men, but this is explained by evidence that the men came in and paid at least part of their arrears. Thus, the union records disclose that Thompson made payments on September 20 and October 31, 1967, that Lyons made payments on September 11 and October 19 and that Sleeman promptly made a payment on December 1, 1967. There was also some other contact between the parties in 1968. According to the uncontroverted testimony of Clark, he telephoned Biddle in March and pointed out that some new hires had not paid their dues. Biddle said that he would take care of this, claimed that he was under business pressure and asked for a meeting about the contract. Such a meeting was held on May 6. Clark brought up the dues delinquencies and Biddle claimed that business was bad.' Clark, in a reference to the May renewal date of the contract, claimed that nothing could be done immediately but that this would be taken into consideration at the next negotiations. At this point, Biddle stated that "He wasn't sure he was covered by the contract." As noted, the Pension Trust Fund transmittal on April 10, 1968, reflected the names of six employees. That for July 10, showed only one, Rice. Clark promptly telephoned Biddle and asked for an explanation. Biddle replied only that he needed relief under the contract. Biddle "gave me his word he was going to live up to the agreement." The payment for October 10 again showed only the name of Rice, ignoring the other sales personnel whose precise number at the time is not disclosed, and this led to the filing of the instant charge. 4. Concluding findings To sum up, Respondent permitted the contract to renew itself in May 1966, 1967, and 1968, not availing itself of the opportunity to terminate or modify. And it has substantially complied with the contract throughout the renewals. It has obtained the benefits of union representation of its employees in a highly organized area, but has complained of the burdens thereunder. Respondent was in the position of having to fish or cut bait and it has attempted to do both. I find that it recognized the Union and performed under the contract in substantial respects, as detailed above. It then without of limitations problem . Hence no finding of a violation rests on conduct exclusively beyond the 6-month period . Local Union No. 1424 v. N.L.R.B. 362 U S. 411. At the hearing, Biddle took a very different position , attempting to justify his hiring of additional personnel in the first and second quarters of 1968 because business was expanding. 497 cause repudiated the Union, offering as a defense its own breach of the contract in failing to apply the union security clause; this it may not do. While the Union may have been lax in enforcing the contract, the record will not support a finding, as urged by Respondent, that it has abandoned the contract or abdicated. Indeed, as set forth, the evidence preponderates otherwise. See, e.g., Crane & Breed Casket Co., 175 NLRB No. 35. Respondent has also relied upon the turnover in personnel. But the record is silent as to the union status of the new hires and, more significantly, the role of the Union here stems not from the union shop clause but rather from its status as the recognized representative. See Franks Bros. Co. v. N.L.R.B., 321 U.S. 702; General Teamsters Local 782 Blue Cab Co. v. N.L.R.B., 373 F.2d 661; and Light Boat Storage, Inc., 153 NLRB 1209, enfd. 373 F.2d 762 (C.A. 5). Respondent likewise argues that it may now be compelled to bargain with a minority representative. The simple answer is that there is precedent for this in appropriate contexts. See, e.g., Brooks v. N.L.R.B., 348 U.S. 96. I find that by the above-specified conduct Respondent has refused to bargain and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. I further find that Respondent has thereby interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused to bargain with the Union as the duly designated representative of its employees in an appropriate unit. I shall therefore recommend that Respondent prospectively honor the 1968 agreement between it and the Union, including enforcement of the union security provision upon appropriate demand, and that it pay to the appropriate source any fringe benefits provided for therein. I shall also recommend that it make the required payments for each employee to the Western Conference of Teamsters Pension Trust Fund from July 10, 1968, on. See N.L.R.B. v. Strong Roofing & Insulating Co., 393 U.S. 357. The intended thrust of this remedy is that compliance is to run until the contract may be lawfully terminated. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Brooks Biddle Chevrolet Company is an employer within the meaning of Section 2(2) of the Act. 2. Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. All new and used car salesmen employed by Respondent, excluding office clerical and professional employees, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, has been at all times since February 1966, and now is, the exclusive representative of all employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on and after July 10, 1968, to bargain with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. altered, defaced, or covered by any other material. (3) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.' 'In the event 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 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 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 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Brooks Biddle Chevrolet Company, Seattle, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent as the representative of its employees in the above-described appropriate unit and refusing to honor the 1966 contract with said Union as subsequently renewed in 1968. (b) Refusing on appropriate application by said Union to apply the union security language of said contract to any delinquencies arising subsequent to the date of this decision. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of thier own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Forthwith honor and apply the 1966 agreement as renewed in 1968 with the above-named union. (b) Make all payments to the Western Conference of Teamsters Pension Trust Fund due on and after July 10, 1968. (c) Pay to the appropriate source any other fringe benefits provided for in the above-described contract. (d) Post at its offices at Seattle, Washington, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to recognize Automobile Drivers and Demonstrators Union, Local 882, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent as the representative of our new and used car salesmen, excluding office clerical and professional employees, guards and supervisors. WE WILL, upon appropriate application, honor and apply the 1966 contract, as later renewed in 1968, with the above-named labor organization, including its union security language for any delinquencies arising hereinafter. WE WILL make all payments due to the Western Conference of Teamsters Pension Trust Fund due on and after July 10, 1968. WE WILL make whole the appropriate sources for any other unpaid fringe benefits provided in the above contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment. Dated By BROOKS BIDDLE CHEVROLET COMPANY (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 BROOKS BIDDLE CHEVROLET CO. 499 or compliance with its provisions , they may communicate Building, 10th Floor 1511 Third Avenue, Seattle, directly with the Board' s Regional Office, Republic Washington 98101, Telephone 583-7473.