Grimaldi Buick-Opel, Inc.

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grimaldi Buick-Opel, Inc. and International Associa- tion of Machinists and Aerospace Workers, AFL-CIO and Mechanics Motor City Lodge No. 698 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 7-CA-9464(1) and 7-CA-9464(2) March 15, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 1, 1972, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent filed a motion to stay the Order of the Administrative Law Judge and the General Counsel filed an opposition to the Respondent's motion.' Thereupon, the Respon- dent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a sup- porting brief, and the Respondent filed a brief in answer to the General Counsel's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,2 and conclusions, except as modi- fied herein,3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board.adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Grimaldi Buick-Opel, Inc., Water- ford, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 We hereby deny the Respondent's motion to stay the Order of the Administrative Law Judge since the appropriate way to seek relief therefrom is to file exceptions thereto pursuant to the Board's Rules and Regulations. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 The Administrative Law Judge found, and we agree, that the Respondent violated Sec. 8(a)(5) and ( 1) of the Act by ( 1) threatening to sell the business if its employees persisted in their union activities and (2) by promising benefits to its employees to induce them to abandon a strike called by their collective-bargaining representative . We do not, however, agree with the conclusion of the Administrative Law Judge that an independent 8(a)(1) finding based , on the foregoing conduct of the Respondent is unnecessary. We find that it will effectuate the purposes of the Act to make an independent 8(aXI) finding based upon the said conduct, and we hereby do so. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in Case 7-CA-9464(l) was filed on April 13, 1972,1 in Case 7-CA-9464(2), on April 17. The consolidat- ed complaint was issued on May 30. The hearing was held on July 24, 25, and 26 in Detroit, Michigan. The principal issue litigated was whether Lodge 698 had ceased to represent a majority of Respondent's service department employees by March 14 so that Respondent's activities on and after that date, which would otherwise constitute refusals to bargain, were not illegal. For the -reasons set forth below, I find Respondent violated Section 8(aX5) and (1) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of oral argument and briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Michigan corporation, is engaged in the automobile business in the township of Waterford, Michigan. During 1971, a representative period, Respon- dent's gross revenue from the sale of new and used automobiles and related products and from services performed on new and used automobiles exceeded $500,000. During the same year, it purchased goods and materials valued in excess of $50,000 which were shipped directly to its place of business in Waterford, Michigan, from suppliers located outside the State of Michigan. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Parties are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Credibility The only significant credibility conflict in the record involves precisely when Joseph Martin, business agent for Lodge 698, and Philip Swartz, steward in the unit of Respondent's employees represented by Lodge 698, visited Anthony O. Grimaldi, Respondent's owner, at his office in early March and what was said at that time. Martin and Swartz placed the visit on March 8 or 9, after receipt of Martin's March 6 telegram to Frederick Colombo, Grimal- di's attorney, in which Martin set a March 10 strike deadline. Grimaldi placed it before receipt of the telegram. More importantly, Martin and Swartz testified that Grimaldi said he would telephone Colombo and arrange a negotiating session for 2 p.m. on March 14. Grimaldi ' Dates are 1972 unless otherwise indicated. 202 NLRB No. 59 GRIMALDI BUICK-OPEL, INC. testified Martin said he would call Colombo to arrange a meeting and no specific date or time was mentioned. Grimaldi's testimony on direct was: He [Martin ] had come to my office-it seems to me that it was sometime in March. He was visiting with Mr. Swartz, and he said that he was going to set up a meeting with you [Colombo]. He was going to call and set up a meeting. And that was it. We never set a date or anything like that. On cross, it went like this: Q. Then you said he came to your office in March. This is prior to the strike? A. Yes. Q. How soon prior to the strike, do you recall? A. Around March 1st. Q. Was this before you received the telegram? A. Yes. Q. At that time what did Mr. Martin tell you? What did he say to you? A. I told him at the meeting we were having a very difficult time financially , economically, and as a matter of fact Mr. Swartz was in the office with him and he said that it doesn't matter to us any way, Grimaldi, if you are out of business, whoever 'takes over, we will assume your contract, they will take over your contract, and he said he was demanding that we have another meeting, and I said I would get in touch with Mr. Colombo and set it up at his convenience, because Mr. Colombo is a very busy man, and that is the last I heard of him until I received the telegram which telegram said unless you sign the contract, we will strike, no negotiations, no offer, just either sign the contract or strike, and at that point there was nothing more I could do. While the latter portion does concede Grimaldi said "I would get in touch with Mr. Colombo and set it [the meeting] up at his convenience," its main thrust is still that Lodge 698's effort to arrange a meeting in March proved abortive through no fault of his. This tendency of Grimaldi to tailor his testimony to fit Respondent's case is found at several other points in the record. For example, Grimaldi testified that Martin stopped by his office in January and talked about arranging a meeting. On direct, Grimaldi said: Q. [Martin] came by your place of business? A. Yes. And he asked for a meeting. Q. And asked for a negotiating meeting? A. Yes' Q. What did you say? A. I told him I would give it to my attorney, and see if we could make arrangements for a meeting. On cross, he said: Q. him. I am asking you, Mr. Grimaldi, what you told A. Told Martin? Q. Yes, in January 1972. What did you tell him? A. Set up a meeting with Colombo. Q. That he would set up a meeting with Colombo? A. Yes. This time, between direct and cross, the initiative for contacting Colombo shifted from Grimaldi to Martin. 437 Again, Grimaldi's testimony on the question of good- faith doubt of majority makes an interesting pattern. Colombo sent a letter dated May 5 to Martin in which he cited the facts that more employees had remained at work than had struck on March 21 , that the certification year had ended on November 5, 1971, without agreement on a contract, and that Lodge 698 had not requested a meeting with Respondent between November 5, 1971, and March 6 as grounds for Respondent's good-faith doubt of Lodge 698's majority. This is the earliest document in which Respondent raises such a doubt. On direct, Grimaldi testified that he discussed with Colombo the fact that some employees had not gone on strike only after Colombo received a letter from Martin dated May 4 in which Martin requested a negotiating meeting on May 9. The clear import of the record as it stood at that moment was that Respondent had not questioned Lodge 698 's majority until May 5 . However, on cross-examination, Grimaldi's testi- mony followed a devious path. He first 'could not remember whether he expressed such a doubt to Martin when Martin came to his office either in January or in March. Then he changed his mind about the March visit, answering a question about what he said on the subject thus: I told them [Martin and Swartz] there were complete -there were more employees than what was there in 1970, many different mechanics and many different people. However, when counsel for the General Counsel pressed Grimaldi by asking "when he [Martin ] said he wanted to negotiate, did you tell him he did not represent a majority of the employees?" Grimaldi's answer was "No." Primarily because of inconsistencies such as these, I have credited Martin and Swartz over Grimaldi . I have also taken into consideration the fact that Martin's calling off the strike he had scheduled for March 10 only makes sense if he talked to Grimaldi after announcing that deadline and received an assurance from Grimaldi that a meeting would be arranged with Colombo, Respondent's chief negotiator, without delay. B. Facts 1. Background The Regional Director for Region 7 certified District Lodge No. 60 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO, on November 5, 1970, as collective-bargaining representative of a unit of: all mechanics, helpers, apprentices, washers, lube men, porters, new car prep men, and parts men employed by [Respondent] at its 550 Oakland Avenue, Pontiac facility ; but excluding bodymen and painters employed by [Respondent ] at its 900 Oakland Avenue, Pontiac body shop, office clerical employees, professional employees, guards and supervisors as defined in the Act. (The complaint alleges, and the answer admits, that Lodge 698 was certified on November 5, 1970. The discrepancy between Lodge 60 and Lodge 698 is not explained in the record.) Certification followed a consent election held on October 23, 1970, in Grimaldi Buick-Opel, Inc., Case 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7-RC-10154, in which seven votes were cast for the Petitioner, none was cast against, and two challenged ballots were not determinative . (The tally of ballots issued in Case 7-RC-10154 on October 23, 1970, is inaccurate in that it fails to show the 2 challenged ballots. The mistake occurs again in the Regional Director's report on Respon- dent's objections and certification which issued on Novem- ber 5, 1970.) In September 1971 Respondent consolidated its operations at 2225 Dixie Highway in Waterford. Bargaining sessions were held on March 31 , May 5 and 25, and June 25, 1971, in the office of Frederick Colombo, Respondent's counsel . Colombo acted as chief negotiator for Respondent, Joseph Martin for Lodge 698. At the last meeting, Lodge 698 rejected an offer from Respondent, notwithstanding Grimaldi's plea that he could not afford to offer more . Among the many economic issues open when the June 25, 1971, meeting broke up was 1970 vacation pay. In 1970, because of depressed business conditions caused by a General Motors strike, Respondent had failed to give its employees their customary vacation pay. It paid as usual in 1971. By early 1972, there were still three members of the unit represented by Lodge 698-Philip Swartz, Melvin Rassier , and Kenneth Reger -in Respondent's employ whom Respondent owed vacation pay for 1970. (William Borland, Respondent's service manager, was also still owed his 1970 vacation pay.) Grimaldi's offer was to pay the money for 1970 in July 1972. Martin visited Grimaldi at Grimaldi's office sometime in January 1972 and asked Grimaldi for a meeting in order to resume negotiations . Grimaldi said he would contact Colombo to make the necessary arrangements . A little later, apparently in February, Grimaldi bumped into Martin in a restaurant. Martin said that he was getting ready for a meeting with Colombo and Grimaldi. When the events which gave rise to this case took place, beginning in early March 1972, eight of Respondent's employees were members of Lodge 698 . They were all seven of Respondent's mechanics, Philip Swartz, Melvin Rassier, Kenneth Reger, Thomas Rassier, Douglas Kem- per, Larry Bolton, and Burt Sola, and William Parker, a parts department employee. 2 Events preceding the March 21 strike Martin called a meeting of Gnmaldi's employees who were members of Lodge 698 at a restaurant near Respon- dent's place of business in late February. It was conducted by Ron Mascot, another business agent, and attended by all of the member-employees except Bolton. Lodge 698's failure to get a contract with Respondent was discussed. A strike vote was taken. The result was six to one in favor of striking. The lone dissenter was Swartz. As a result of the strike vote, Martin sent a telegram to Colombo on March 6 which read: IF NO AGREEMENT IS REACHED BY 5 P .M. FRIDAY MARCH 10 A STRIKE SHALL COMMENCE AT THAT TIME. On March 8 or 9 Martin, accompanied by Swartz, Lodge 698's steward, visited Grimaldi in his office. After some discussion, Grimaldi said he would call Colombo and arrange for a negotiating meeting at 2 p.m. on March 14. Martin and Swartz went from Grimaldi's office to Respondent's shop.. Martin explained to the mechanics that negotiations would resume on March 14 and recom- mended the strike scheduled for March 10 be called off. The mechanics agreed. Grimaldi did not call Colombo to arrange a meeting. No strike began on March 10. Martin telephoned Colombo on March 13 and asked about the meeting scheduled for the next day. Colombo expressed surprise and said that Grimaldi had not called him. He said he would check with Grimaldi . Martin called Colombo again on March 14 . Colombo said he had been unable to reach Grimaldi. Meanwhile , on the morning of March 14, Grimaldi summoned Philip Swartz , Melvin Rassier, and Kenneth Reger to a meeting in an office in the parts department. William Borland, the service manager, was also present. Grimaldi discussed Respondent's economic situation. He told the men that he had been looking into a retirement plan for them in which they could invest up to 10 percent of their earnings, and, if they would bear with Respondent, something could be worked out in the future . He told them 1972 vacation pay would be paid in July and 1970 in January 1973 . When Swartz asked Grimaldi if he was going to the negotiating meeting scheduled for that afternoon, Grimaldi replied that he knew of no meeting. When Swartz asked whether Grimaldi was going to sign a union contract, Grimaldi replied there was no way he could do so. Respondent's employees who were members of Lodge 698 met again on the evemng of March 16 at the home of Melvin Rassier. Martin presided. The only absentee was William Parker. Grimaldi's and Borland's meeting with Swartz, Rassier, and Reger on the morning of March 14 and Respondent's failure to meet for negotiations on the afternoon of March 14 as promised by Grimaldi were discussed . Martin said it was hopeless to continue to try to bargain with Respondent and called for another strike vote. This time, the vote was unanimous. On March 20 Grimaldi got into a conversation with Reger about Respondent's inability to afford a union. He told Reger that, if the men insisted on being represented by a union, he would start over with a new crew and they would have nothing. 3. The March 21 strike and events which followed All seven of the mechamcs and helpers who belonged to Lodge 698 walked out of the shop on strike at noon on March 21 . Parker did not strike , nor did any of Respon- dent's employees who were not members of Lodge 698. The strikers began picketing Respondent's shop. The picketing lasted approximately 10 weeks. Sometime between March 21 and March 31 Grimaldi came to the picket line and asked Swartz if he could have a meeting with the men, adding that it was just with the men and not the Union. Swartz said yes, provided two of them participated. Swartz and Melvin Rassier went into the building with Grimaldi . Borland was also present in the discussion that ensued. Gnmaldi urged the men to give up the strike and return to work . As on March 14, he held out as inducements a pension plan as soon as Respondent could afford one and prompt payment of the overdue 1970 GRIMALDI BUICK-OPEL, INC. vacation pay to those who were entitled to it . This time, he promised payment in July rather than in January 1973. When Swartz asked if Grimaldi was going to sign a union contract, Grimaldi replied that he was not. On March 31 Swartz and Rassier again went into the building under similar circumstances to talk to Grimaldi and Borland. (Apparently, although the record is not clear, Borland came to the picket line and invited them in on this occasion.) This time, however, Swartz and Rassier had barely gotten inside the door when Swartz asked Grimaldi if he was going to sign a union contract and Grimaldi replied no. Swartz declared the "meeting" adjourned, and he and Rassier turned on their heels and walked out. During the early days of the picketing, both Grimaldi and Borland talked to one or more of the men on the picket line at various times in efforts to get them to return to work. On several of these occasions, they said that Respondent would not enter into a union contract. They offered the men any contracts they wanted so long as they were private contracts with the men individually and not a contract with Lodge 698 . On at least one occasion, Grimaldi said he would sell the place before he would ever give into the Union. (To the degree that Grimaldi's testimony about these poststrike meetings and conversa- tions is in conflict with the testimony of Philip Swartz, Melvin Rassier, Kenneth Reger, and Douglas Kemper, I do not credit Grimaldi. Grimaldi's denials are far out- weighed by his admissions that Swartz and Rassier were invited into the building once , that he did talk to the men on the picket line in an effort to persuade them to return to work, and that he did offer them their 1970 vacation pay in July to induce them to return. Borland did not testify.) On May 4 Martin sent a letter to Colombo which read: This letter is a request to meet with you on Tuesday, May 9 at 10:00 A.M. for the purpose of negotiating a contract between Grimaldi Buick-Opel, Inc. and Mechanics' Motor City Lodge #698. Please call and confirm this meeting as soon as possible. Also, this letter is to inform you that on Wednesday, May 3, the members rejected the Company proposals. (The reference to company proposals in the second paragraph is unexplained in the record . There is no indication in the record of any negotiations between Respondent and the Union after June 25, 1971. Grimaldi did testify that meeting ended with the understanding that the Union would again take his offer to the men .) Colombo replied as follows in a letter to Martin dated May 5: This letter is to acknowledge your request to meet for the purpose of negotiating a contract between Grimaldi Buick-Opel, Inc. and Mechanics' Motor City Lodge No. 698 on Tuesday, May 9th at 10:00 A.M. Certain employees from Grimaldi Buick left their jobs, removed their tools and in several instances began to picket the premises of Grimaldi Buick as of March 21, 1972. Six employees who were classified as mechanics were included in this group. At the same time nine other employees who were employed in the following job classification : parts countermen, parts truck drivers and new car wash man, remained on the job and have continued to work during the time that the mechanics have been picketing Grimaldi Buick. 439 In light of the fact that the certification issued by the National Labor Relations Board was dated November 5, 1970, and because of the further fact that no contract was agreed to on or before November 5, 1971, and because of the further fact that the union failed and neglected to request any meeting with the company's management between November 5, 1971 and March 6, 1972, and finally, because of the fact that nine employees have now remained on their jobs while six other employees have been picketing the company's premises, the management of Grimaldi Buick has a good faith doubt that your union represents the majority of its employees as the bargaining representa- tive of the service department at Grimaldi Buick. In light of the fact that the company 's management now has this good faith doubt as to your representing a majority of its service department employees we must respectfully deny your request for the proposed meeting to be held on May 9, 1972. On July 6 Martin sent a letter to Grimaldi which read: Please be advised that as of July 5, 1972 the following employees are requesting reinstatement in your employ at Grimaldi Buick-Opel, Inc.: Larry Bolton Doug Kempen [sic ] Ken Rieger [sic] Mel Rassier Tom Rassier Phil Swartz Burt Sola Colombo replied as follows in a letter to Martin dated July 10: This letter is to advise you that the undersigned represents Grimaldi Buick-Opel, Inc. Our clients have referred your letter of July 6, 1972 requesting the reinstatement of the following employees to me for reply: Larry Bolton Doug Kempen [sic] Ken Rieger [sic] Mel Rassier Tom Rassier Phil Swartz Burt Sola Our clients have authorized me to advise you that they are willing to reinstate the aforesaid employees upon the following conditions: 1. That the company receive a written uncondition- al offer to return to work, and 2. That all of the aforesaid employees report to William J. Borland, Service Manager, on Monday, July 17, 1972 at 8:30 A.M. C. Analysis and Conclusions 1. Majority a. The issue The Union's certification year expired on November 5, 1971. The earliest unfair labor practice alleged in the complaint is a refusal to bargain predicated on Grimaldi's and Borland's bypassing the union to bargain directly with employees on March 14, 1972. If Respondent is under any 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continuing obligation to bargain with the Union as a result of the certification it received in November 1970, it must, in fact, have represented a majority of employees on March 14 in a unit of Respondent's mechanics, helpers, apprentices, washers, lube men, porters, new car prep men, and parts men, excluding body shop employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. Terrell Machine Compa- ny, 173 NLRB 1480. The fact, as emphasized by the General Counsel, that Respondent, in the person of Anthony Grimaldi, did not question Lodge 698's majority until early May, when he first discussed numbers of striking and nonstriking employees with his attorney, is not dispositive of the principal issue. Here, unlike the usual case in which an employer, following the end of a certification year, advances a good-faith doubt of the Union's continuing majority based on objective data as a defense to a refusal-to-bargain allegation, the major defense advanced by Respondent is a contention that Lodge 698 did not, in fact, represent a majority of unit employees when it is accused of having violated its duty to bargain, that is, on and after March 14. In other words, Respondent has undertaken to rebut the presumption that a union's majority continues beyond the end of the certification year. Whether it has succeeded is susceptible of precise measurements for here, unlike cases which involve such principles as new employees presumed to support a union in the same proportion as old or failure to join in a strike not proving a lack of adherence to a union, the General Counsel does not contend that any unit employees other than the eight Lodge 698 members who participated in the two strike votes desired representation by Lodge 698. Rather, the issue is how many employees were in the unit on the crucial date. The parties stipulated at the hearing that 11 employees were in the unit in early 1972, namely, the 7 mechanics who struck on March 21 plus William Parker, David Bredow, James Looper, and Bennie Smith. They were in dispute as to seven others; namely, Johnny Craft, William Hunt, Timothy Donovan, Clyde Linwood, Jack Freeman, Wayne Facca, and Marvin Johnson. (Respondent initially claimed that Raymond Arnold, a part-time porter, should be included in the unit. However, it ultimately stipulated that he was a casual employee.) Marvin Johnson began working for Respondent as a used-car porter on March 25 and was no longer working for Respondent at the time of the hearing. Because he was not employed by Respondent on March 14, the day on which Respondent first violated Section 8(a)(5) if it was, in fact, under a duty to bargain with Lodge 698, I find that he was not working in the unit at any time relevant to this case. As to the others, the issue as to the first five named above is, in essence, whether they were regular or irregular part-time employees on March 14. As to Wayne Facca, the issue is whether he was a supervisory or managerial employee on March 14. b. The part-time employees Johnny Craft, William Hunt, Timothy Donovan, Clyde Linwood, and Jack Freeman had in common the fact that they were paid by Respondent out of petty cash and did not appear on the regular payroll. No deductions for withholding or social security were made from their wages. Clyde Linwood and Jack Freeman had in common the fact that, unlike the other three, they were paid by the job. David Bredow, who doubled as a parts driver and a porter, and James Looper, a porter, were paid on the regular payroll even though they worked only part time. (Bredow, a former full-time employee, worked part time at his own request.) Being on the regular payroll, Bredow and Looper received overtime pay. The General Counsel conceded that they were regular part-time employees. Craft, Hunt, and Donovan were classified by Respon- dent as porters, that is, they performed janitorial services around Respondent's premises, including the service area where the mechanics worked, and washed and polished cars. Craft and Hunt worked on a day-to-day basis beginning, in each case, in 1969. Craft received $1.75 per hour; Hunt, $2. Both were still employed at the time of the hearing. Donovan, a high school senior in the 1971-2 school year, worked after school and on Saturdays on a day-to-day basis when his school activities permitted. He began working for Respondent in 1970 and had worked at least one summer prior to the period relevant to this case. He did not work between Saturday, March 4, and Thursday, March 16, because he went with his high school class on its senior trip during this period. His last day of employment was Thursday, March 16. (Respondent's records, which are in evidence, do not corroborate Grimaldi's testimony that the one day which Donovan worked following his return from his class trip came after the strike began on March 21. Despite this discrepancy, I do not doubt Grimaldi's statement that Donovan ceased working in March because of his parents' concern about the picket line at Respondent's premises.) Respondent's time and pay records for the last calendar quarter of 1971 and the first calendar quarter of 1972 covering Craft, Hunt, Donovan, Linwood, and Freeman were introduced into evidence. The records for David Bredow and James Looper for the last 8 full weekly pay periods in the first quarter of 1972 were also introduced. The following tabulations show the amount of time worked by Bredow, Looper, Craft, Hunt, and Donovan. The figure before the dash represents the number of hours worked during the week in question; the figure after, the number of days during the week on which those hours were worked. Linwood and Freeman are not included in these tabula- tions because Respondent's records as to them are not translatable into hours and days worked. Last quarter of 1971: Week ending Craft Hunt Donovan 10 6 7 25--3 10/13 37--5 8--2 10/20 36,5_5 6--2 10/27 46.5--6 11/3 40,5--6 15--2 11/10 32.75--6 11/17 41.5--6 11/24 8--2 12/1 12.5--2 12/8 5.25--1 35--5 12/15 14--2 39.5--6 12/22 8.5--1 37.75--6 12/29 39--5 GRIMALDI BUICK-OPEL, INC. 441 (In addition to the timecards and notes from which these checks which show that Donovan received $26.25 during figures are culled, the record contains a canceled check the week ending October 6, •1971, $31.50 during the week which shows that Craft received $53.60 from Respondent ending November 3, 1971, and $84 .75 during the week during the week ending December 22, 1971, and canceled ending November 24, 1971.) First quarter of 1972: Week ending Wed ., Bredow Looper Craft Hunt Donovan 1/5/72 4.5-2 18-2 1/12 4.75-1 21.5-5 1/19 17-3 13.75--3 1/26 25-5 11.5-3 2/2 23.5-4 12--3 2/9 27-3 23.25-3 21.25-4 11.5--3 2/16 32.75--4 38-5 2.25--1 12-2 19.5-2 2/23 18.5-2 48-5 20.25--4 10.75-3 7-1 3/1 16.5-2 22-4 4.5-1 4-1 16.5-2 3/8 25.5-3 14-3 2.25-1 7.5-1 3/15 24.25-3 32--5 14-3 12.5-2 3/22 24--3 37-6 21.5-4 14.25-2 7.5-1 3/29 32 .5-4 16.25--2 7.5-2 5-1 (In addition, the record contains canceled checks which for the only records produced with respect to them were show that Donovan received $31.50 from Respondent canceled checks and petty cash vouchers of no particular during the week ending January 12, $26:25 during the week probative value. Both were paid by the job, so the absence ending January 16, $18 during the week ending February of timecards or similar records is not surprising. 9, and $17 during the week ending March 15.) Clyde Linwood was (and still is) a car cleanup man, paid Porters are specifically included in the unit description at the rate of $12 for each used car and $4 or $6, depending established as appropriate for Respondent's employees in on how dirty it was, for each new car he worked on. He Case 7-RC-10154. The only meaningful distinction which worked intermittently for Respondent in this capacity over can be drawn on this record between porter Looper on the several years. The most recent period began in early 1972. one hand and porters Craft, Hunt, and Donovan on the (Some of his absences were due to a heart condition.) He other is the fact that Looper is included on the regular worked on a day-to-day basis, using Respondent's equip- payroll and thus qualifies for overtime pay while Craft, ment and materials and sometimes was helped by his wife, Hunt, and Donovan are not. Anthony Grimaldi's explana- who shampooed upholstery. He received no additional tion for this distinction is that he considers Looper "regular compensation when his wife helped him. On days when time" because he works "three days a week the same as there were no cars to clean he did not work. He did not Mr. Bredow." A comparison of Looper's figures in the work from mid-March until mid-April because of a dip in table above with those of Craft, Hunt, and Donovan for Respondent's used car sales caused by the strike. the same 8 pay periods corroborates this distinction. New-car prep men are specifically included in the unit Looper averaged more than 30 hours and more than 4 days description, and there is no evidence of any other employee in each of the 7 weeks he worked from February 3 through who might be said to hold that job classification. However, March 29. (His failure to work during the week ending that is not dispositive of the issue for Grimaldi described March 8 is unexplained in the record.) Comparable figures Linwood's job as "used car clean up man." The canceled are more than 13 hours and nearly 3 days for Craft, more checks and petty cash vouchers made out to Linwood than 9 hours and nearly 2 days for Hunt, and more than 11 which are in evidence do show that he received various hours and less than 1- 1/2 days for Donovan. However, sums of money ranging from a low of $40 to a high of $151 Donovan's work during this period was sporadic, due, no in each of the 5 weeks from February 10 through March doubt, to the'prior claim his schoolwork had on his time, 15. However, there is no basis for determining when and while Craft and Hunt worked each week. Grimaldi did not how long he worked for Respondent in earning these sums. use the phrase "regular time" in the sense that the word Relying primarily on Grimaldi's admission that Clyde "regular" is employed by the Board when distinguishing Linwood worked only when used or new cars were between regular part-time and casual or irregular part-time available to be worked on, I conclude that he was an employees for purposes of unit placement. Thus, the fact irregular part-time employee. that Craft and Hunt averaged less than 3 days a week Grimaldi described Jack Freeman as a helper, a job during this period does not serve to distinguish them from classification which is included in the unit description, and Looper. The sporadic nature of Donovan's employment testified that he was a part-time employee who was paid does. I conclude, therefore, that Johnny Craft and William not by the hour but by the jobs he performed. The Hunt were regular part-time employees of Respondent on canceled checks and petty cash vouchers which were March 14 and that Timothy Donovan was an irregular introduced into evidence with respect to him show that he part-time employee. received money from Respondent each week from the Apparently Respondent kept no records of the days or week ending Wednesday, February 9, to the week ending hours which Clyde Linwood and Jack Freeman worked, Wednesday, March 29, with the exception of the week 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ending March 8 . The sums varied from a low of $5 to a high of $135. One voucher dated March 1 for $25 bears the notation "Advance-on painting picture." This points up Freeman's unique status as an employee of Respondent. Freeman is the son of an old friend of Grimaldi. A college art student, he dropped out of school for a semester, apparently in order to earn money so that he could return to school. He was hired by Grimaldi as a salesman around the first of February . (Respondent's salesmen work on commission. Although they are not mentioned in the unit description, they were obviously intended to be excluded by the parties to Case 7-RC-10154 when they entered into a consent -election agreement.) After a short time, he was transferred to the bodyshop . Sometime later he was transferred to the service department. Somewhere along the way Grimaldi discov- ered that Freeman was an artist . He purchased from Freeman a large wooden sculpture and commissioned him to paint a picture, both at undisclosed prices. Both art objects were intended as decorations for Respondent's premises. Freeman last worked for Respondent during the week ending March 23. His principle duty after his transfer to the service area was polishing cars. However , he spent the last 2 weeks before his departure finishing the wooden sculpture he had sold to Grimaldi by polishing it with a power tool borrowed from the bodyshop and starting on the picture Grimaldi had commissioned. As in the case of Linwood, there is no basis in the record for determining on what days and for how many hours Freeman worked for Respondent . In fact, the records of payments to him which were introduced are even less useful than those which relate to Linwood , for there is no way of telling how much of the money Freeman received from Respondent represented wages and how much represented the purchase price of his art. I conclude, therefore, that Jack Freeman was also an irregular part- time employee . Moreover, since the artwork he was doing on and after March 14 was not unit work, I conclude that he lacked a community of interest with unit employees for that additional reason at the time relevant to this proceeding. c. Wayne Facca On March 14 Wayne Facca had the title of assistant parts manager. The parts manager, a supervisor within the meaning of the Act, was Denny Richmond. The only other employees in the parts department were William Parker, the parts driver, and David Bredow . Facca's duties were those of a counterman, that is, he handed out parts to Respondent's mechanics, sold them to customers, and handled the paperwork incidental to this function. In connection with the latter duty, prior to March 8 he filled out and signed purchase orders, the same as Richmond and William Borland, the service manager. On March 8 Grimaldi ended his authority to do so because of a dispute over Facca's using a purchase order to get a part needed for repair of his brother's car, apparently at a discount. (Facca's authority was restored when he became parts manager on the departure of Richmond in June .) Freeman told Parker and Bredow where to go for pickups and .deliveries of parts. He gave them chores to do in the parts department when they were not driving . His duties and responsibilities were essentially the same from his hire through the penod relevant to this proceeding. Facca was hired to work at Respondent's 550 Oakland Avenue location in December 1970. He started soon after the departure of Mel Price, parts manager, and James Wheatley, assistant parts - manager. (Wheatley initially voted a challenged ballot in the October 23 , 1970, election in Case 7-RC-10154 because his name did not appear on the eligibility list furnished by Respondent. However, before the count the parties to the election agreed that he was eligible. Consequently, his ballot was opened and counted at that time .) Grimaldi told Facca, when hired, that he was in charge of the parts department at 550 Oakland Avenue and that his title was assistant parts manager. William Parker also worked in the parts department at that location . Denny Richmond, whose title was parts manager, and David Bredow worked in the parts department at Respondent's 900 Oakland Avenue location. When Respondent moved all its operations to 2225 Dixie Highway in September 1971, the relationship of Richmond as parts manager to Facca as assistant parts manager continued . Facca was told at that time that Richmond was in charge . Facca was promoted to parts manager when Richmond left in June 1972. Facca was originally hourly paid . He became a salaried employee around the middle of 1971 , receiving a $10-per- week raise. When the move to Dixie Highway took place, he received an additional $5 raise to $ 140 per week and a 1-percent commission on sales as an incentive plan. Richmond was also placed on an incentive plan. His salary was approximately $180 per week . Parker and Bredow were hourly paid. The General Counsel contends that Facca was either a supervisor within the meaning of the Act or a managerial employee . For the former position, he relies on Facca's relationship to Parker and Bredow. For the latter, he relies primarily on Facca's authority to pledge Respondent's credit by signing purchase orders. Neither position has merit. The directions Facca gave to Parker and Bredow during the relevant period were routine in nature and did not require the exercise of any independent judgment. Facca's authority to sign purchase orders , even if he had possessed it on March 14, is one customarily possessed by parts department countermen in this industry and did not, standing alone, so identify his interests with those of Respondent and separate them from the interests of unit employees as to make him a managerial employee. I conclude, therefore, that Wayne Facca was neither a supervisor within the meaning of the Act nor a managerial employee within the meaning ascribed to that term by the Board during the relevant period. d. Summary Because they were porters employed on a regular part- time basis, Johnny Craft and William Hunt must be included in the unit of employees as of March 14. Because he was neither a supervisor nor a managerial employee but a rank-and-file parts man, Wayne Facca must be included, too. Because, on the other hand, each was an irregular part-time porter or helper, as the case may be , Timothy GRIMALDI BUICK-OPEL, INC. 443 Donovan, Clyde Linwood, and Jack Freeman must be excluded. As a result, 3 employees must be added to the 11 the parties agree were in the unit , for a total of 14. Lodge 698 numbered 8 of these 14 men among its members at all times relevant. Therefore, there is no merit to Respondent's principal defense that it was not obliged to bargain with Lodge 698 on and after March 14 because Lodge 698 did not, in fact, represent a majority of the employees in the bargaining unit . (In their brief, counsel for the General Counsel elected to discuss only Freeman and Linwood among the disputed part-time employees , including Craft, Hunt, and Donovan in the unit. I am gratified that their posthearing analysis of the record as to Craft and Hunt agreed with mine . If their inclusion of Donovan is taken as a concession that outranks my finding that he should be excluded, the result is the same . The unit simply expands to 15 employees, 8 of whom were represented by Lodge 698.) 2. Respondent's other defenses The complaint alleges Respondent violated Section 8(a)(5) and ( 1) of the Act by (1) bypassing Lodge 698 to bargain individually with employees on and after March 14; (2) soliciting striking employees to return to work with promises of individual contracts on and after March 21, and (3) refusing to meet with Lodge 698 for purposes of collective bargaining on and after May 5 . Number one, of course, refers to Grimaldi's and Borland's meeting with Philip Swartz, Melvin Rassier, and Kenneth Reger on the morning of March 14, as well as the meetings held with employees during the strike. Number two refers to Grimaldi's and Borland's efforts to persuade strikers to return to work . Number three refers to Frederick Colom- bo's letter of May 5 to Joseph Martin . Respondent contends in its answer that Lodge 698 forfeited its bargaining rights because it made no effort to negotiate from the time bargaining was broken off in June 1971 until March 1972. It also contends in its answer that it had a good-faith doubt of Lodge 698's majority. It contends in its brief that, since Swartz was among the employees Grimaldi and Borland talked to on March 14, Respondent did not bypass Lodge 698 on that occasion because , in dealing with Swartz, it was dealing with Lodge 698's recognized agent. None of these defenses has merit . However long the interval between a union's demands , an employer's duty to bargain remains unless and until it demonstrates the existence of a good-faith doubt of the union 's continued majority status, Kentucky News, Inc., 165 NLRB 777. Respondent, in the person of Grimaldi, had no reasonable basis for a good-faith doubt of Lodge 698's majority at any time. On March 14 the strike which Colombo's letter of May 5 relied on as providing a reasonable basis for a good- faith doubt had not yet taken place. From March 21 until Colombo undertook to answer Martin's May 4 request for a meeting, Grimaldi had no doubt, for he did not think about numbers of strikers versus numbers of nonstrikers until Colombo raised the subject with him. Even if Grimaldi's mistaken belief, as of May 5, that unit employees who had not struck outnumbered those who had can be said to have provided a reasonable basis for a good-faith doubt of Lodge 698's majority, it was too late for such a defense to be valid. By that time Respondent had been guilty of refusing to bargain with Lodge 698 in violation of the Act for nearly 2 months . As to Swartz' alleged status as agent of Lodge 698 , it is obvious from Grimaldi's plea on March 14, that the men bear with him, that his intent was to deal with Swartz as an individual employee to be wooed, like Rassier and Reger, away from Lodge 698 and not as the personification of the Union. Since all of the defenses advanced by Respondent to justify its admitted refusal to meet and bargain with Lodge 698 are without merit, I find that Respondent violated Section 8(a)(5) and (1) of the Act on and after March 14, 1972, by bypassing their collective-bargaining representative to bargain directly and individually with its employees, by threatening its employees with reprisals and promising them benefits, including individual contracts , to induce them to abandon a strike called by their collective- bargaining representative, and by refusing to recognize and bargain with the collective-bargaining representative se- lected by a majority of its employees in an appropriate unit. The complaint also alleges independent violations of Section 8(a)(1) of the Act in that Respondent coercively interrogated its employees, threatened them, and promised them benefits. There is no evidence in the record that Respondent coercively interrogated its employees. The threat to sell the business and the promises of benefit which were made on the picket line were violative of Section 8(a)(5) as well as Section 8(a)(1), thus a finding of an independent violation of Section 8(a)(l) by that activity is not necessary . However, on the basis of Kenneth Reger's undisputed testimony about his conversation with Grimal- di on March 20, I find that Respondent threatened its employees with discharge if they persisted in their union activities. The strike which began on March 21 was caused , at least in substantial part, by Grimaldi's and Borland's activities on the morning of March 14 when they attempted to bargain individually with Swartz, Rassier, and Reger. It was, therefore, an unfair labor practice strike from its inception. Upon the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Grimaldi Buick-Opel, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, and its Mechanics Motor City Lodge No. 698 are labor organizations within the meaning of Section 2(5) of the Act. 3. All mechanics, helpers , apprentices, washers, lube men, porters, new car prep men, and parts men employed by Respondent at its automobile sales and service facility in Waterford, Michigan, excluding bodymen and painters employed in its bodyshop, salesmen , office clerical employ- ees, professional employees, guards, and supervisors as defined in the Act, are a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since November 5, 1970, Lodge 698 has 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been and is now the representative for the purpose of collective bargaining of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. By on and after March 14, 1972, bypassing their collective-bargaining representative to bargain directly with its employees, threatening its employees with reprisals and promising them benefits, including individual con- tracts, to induce them to abandon a strike called by their collective-bargaining representative, and refusing to recog- nize and bargain with the collective-bargaining representa- tive selected by a majority of its employees in the unit described above, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By threatening its employees on March 20, 1972, with discharge if they persisted in their union activities, Respondent has violated 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. 8. The allegation of the consolidated complaint, that Respondent violated Section 8(a)(1) of the Act on or about March 16, 1972, by Anthony O. Grimaldi's coercive interrogation of its employees concerning their own and their fellow employees' union activities and desires, has not been sustained. THE REMEDY In order to effectuate the policies of the Act, I will recommend that Respondent cease and desist from the unfair labor practices found and, upon request, bargain with Local 698, and, if an understanding is reached, embody such understanding in a signed agreement. With respect to the reinstatement rights of the seven mechanics as unfair labor practice strikers, the July exchange of letters between Martin and Colombo suggests some dispute about whether Martin's letter of July 6 was, in fact, an unconditional application to return to work. However, the bare letters are the only evidence in the record about what happened in July. Therefore, I will not attempt to resolve that issue, if, in fact, there is an issue. Instead, I will simply recommend that, upon application, Respondent offer the strikers reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any earnings lost by reason of Respondent's refusal, if any, to reinstate them during the period beginning 5 days after the date on which they apply for reinstatement and ending on the date of Respondent's offer. Backpay will be computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. By couching my recommendation in this form, I leave to the compliance stage such questions as whether Martin's July 6 letter was, in fact, an unconditional offer to return to work on behalf of all the strikers and what happened on July 17. In view of Anthony Grimaldi's demonstrated proclivity to interfere with the Section 7 rights of his employees by 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec refusing to bargain with their collective-bargaining repre- sentative and dealing directly with them (Superior Rambler, 150 NLRB 1264), I will recommend a broad rather than a narrow order. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER Grimaldi Buick-Opel, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Mechanics Motor City Lodge No. 698 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative of its em- ployees in the unit found appropriate herein. (b) Bypassing their collective-bargaining representative to bargain directly with its employees. (c) Threatening its employees with discharge or other reprisals if they persist in their union activities, including a strike called by their collective-bargaining representative. (d) Promising its employees benefits to induce them to abandon a strike called by their collective-bargaining representative. (e) In any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Mechanics Motor City Lodge No. 698 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the unit found appropriate herein and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon their application offer Philip Swartz, Melvin Rassier, Kenneth Reger, Thomas Rassier, Douglas Kem- per, Larry Bolton, and Burt Sola reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth above. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes GRIMALDI BUICK-OPEL, INC. 445 (e) Post at its premises in Waterford, Michigan, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all 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. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .4 IT Is ALSO ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(1) of the Act on or about March 16, 1972, by Anthony O. Grimaldi's coercive interrogation of its employees concern- ing their own and their. fellow employees' union activities and desires. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 4 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by refusing to bargain with your union and bypassing it in order to deal individually with you, we hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT refuse to recognize and bargain with Mechanics Motor City Lodge No. 698 of the Interna- tional Association of Machinists and Aerospace Work- ers, AFL-CIO, as your exclusive collective-bargaining representative. WE WILL NOT bypass your collective-bargaining representative to bargain directly with you. WE WILL NOT threaten you with discharge or other reprisals if you persist 'in your union activities, including a strike called by your collective-bargaining representative. WE WILL NOT promise you benefits to induce you to abandon a strike called by your collective-bargaining representative. WE WILL NOT in any manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL, upon request, bargain collectively with Mechanics Motor City Lodge No. 698 of the Interna- tional Association of Machinists and Aerospace Work- ers, AFL-CIO, as your exclusive representative and, if any understanding is reached, embody it in a signed agreement. The unit appropriate for such bargaining is: All mechanics, helpers, apprentices, washers, lube men, porters, new car prep men, and parts men employed at our automobile sales and service facility in Waterford, Michigan, excluding body- men and painters employed in our body shop, salesmen, office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL, upon their application, offer Philip Swartz, Melvin Rassier, Kenneth Reger, Thomas Rassier, Douglas Kemper, Larry Bolton, and Burt Sola rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and make them whole for any earnings they lose in the event we fail to offer them reinstatement within 5 days after their unconditional application to return to work. Dated By GRIMALDI BUICK-OPEL, INC. (Employer) (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.