Francis Chevrolet Co.

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis Chevrolet Company and Automotive, Petrole- um and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 14-CA-7595 June 19, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO DECISION FRANK H. ITKIN, Administrative Law Judge: This case was tried before me at St. Louis, Missouri, on December 17, 1973. Unfair labor practice charges were filed by the Union on September 24 and the complaint issued on November 6, 1973. The principal issue presented is whether Respondent Company violated Section 8(a)(1) and (5) of the National Labor Relations Act by refusing to execute the contract negotiated by a committee or group in its behalf with the Charging Party Union. Upon the entire record before me, including my observation of the witnesses, and after due consideration of the briefs filed by counsel, I make the following: On March 15, 1974, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a motion to have Respondent's brief in support of exceptions rejected. 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 and briefs I and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge3 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 Respondent, Francis Chevrolet Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The General Counsel filed a motion to have Respondent's brief in support of exceptions rejected on grounds that the brief does not conform to Sec. 102.46(c) of the Board's Rules and Regulations, Series 8, as amended. We hereby deny the motion as we find that the brief is in substantial compliance with the Board's Rules and Regulations. Moreover, General Counsel has not shown that he will be prejudiced by our acceptance of the brief. Respondent's request for oral argument is hereby denied, as the record and briefs adequately present the positions of the parties. 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, 1951). We have carefully examined the record and find no basis for reversing his findings. s Respondent has requested that the case be remanded to the Administrative Law Judge and the record reopened for the purpose of taking the testimony of Edward Hayward, who was not called to testify at the hearing held in this proceeding . Since Respondent does not contend that Hayward was previously unavailable to testify or that Respondent has newly discovered evidence, we shall deny the request . See Sec. t02.48(d)(l), Board's Rules and Regulations, Series 8, as amended. FINDINGS OF FACT 1. JURISDICTION It is undisputed and I find and conclude that Respon- dent Company, a Delaware corporation, maintains its principal office and place of business in St. Louis; that during the prior year Respondent sold and distributed at its place of business automobiles, trucks, and related products and services valued in excess of $500,000; that Respondent purchased and caused to be transported to St. Louis automobiles, trucks, and related goods and materials valued in excess of $50,000 directly from locations outside the State of Missouri; and that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is also undisputed and I find and conclude that Charging Party Union, Local 618, is a labor organization within the meaning of Section 2(5) of the Act. Respondent admits in its answer and I find and conclude that Les Francis Sr., the Company's president, is a supervisor and agent within the meaning of the Act. Further, Respondent admits that Les Francis, Jr., is the Company's vice president and general manager, "but denies that he is or has been a supervisor or agent of Respondent for any of the purposes contemplated by the complaint." The evidence pertaining to this and related contentions is discussed below. II. THE EVENTS CULMINATING IN RESPONDENT'S REFUSAL TO EXECUTE THE COLLECTIVE-BARGAINING AGREEMENT Charles W. Isbell, president of Charlie's Chevrolet, testified that for a number of years his company has been a member of a multiemployer bargaining association named the Greater St. Louis Automotive Association, Inc. (the Association); that there are some 90 employer-members of the Association; and that the Association negotiates in behalf of its constituent members collective-bargaining agreements with, inter alia, the Charging Party Union. Isbell explained that the multiemployer bargaining unit involved includes, inter alia, the employer-members' automotive garage parts employees, garage specialists, general garage laborers, used-car cleanup and lot employ- ees, and porters and/or sweepers (see G.C. Exh. 7-art. 1, p. 1; art XXI, pp. 6-7). However, the office clerical employees of the Association's member-employers are not included in this multiemployer bargaining unit. In addi- 211 NLRB No. 110 FRANCIS CHEVROLET COMPANY tion, Isbell testified that during 1971 the Charging Party Union was recognized as the collective-bargaining agent for a unit consisting of office clerical employees at Charlie's Chevrolet. The Charging Party Union similarly has been recognized by other dealer employers in the St. Louis area as bargaining agent for their respective office clerical employees. Accordingly, the Charging Party Union, in addition to bargaining with the Association with respect to the multiemployer unit described above, also bargained separately with Charlie's Chevrolet and a number of other employer dealers in the St . Louis area in behalf of their respective office clerical employees. During May 1973, as Isbell testified, the dealer employ- ers, whose office clerical employees were represented by the Charging Party Union, held a meeting in order to "discuss whether or not they wanted to operate as one .. . for joint bargaining procedure" with respect to their office clericals. Present at this meeting were, inter alia, the 14 dealer employers, including Charlie's Chevrolet and .Respondent Francis Chevrolet Company, whose office clerical employees were represented by Charging Party Union.' Isbell testified that at this May 1973 meeting the "consensus seemed to be that ... they [the dealers] would" have "joint bargaining" for their office clerical employees, "but they [the dealers] were a little at odds as to when they'd do it and how they would go about it, and they'd have some future meetings." About September 7, 1973, shortly after the multiemploy- er association had negotiated its new 1973-1976 contract with the Charging Party Union, Isbell received a notice that there would be a meeting at the office of Ed Hayward, executive secretary of the Association, in order "to discuss this problem once more"-that is, group or unit bargaining for the office clerical employees . Isbell explained: All 14 dealers, I understand, were given a notice to attend this meeting. We did all attend. . . . Ed Hayward started the meeting and he made the point that he thought we should definitely operate as a unit for negotiating purposes, if we didn't, that [Union Representative ] Carl Gibbs would pick one dealer, sign him up for whatever he could get out of him, figuring he'd pick a weak one and then the rest of us would have to follow suit. At this meeting, the representatives of the 14 dealer employers discussed, inter alia, that there were three dealers (including Respondent Francis Chevrolet Compa- ny) who previously had not signed the so-called "standard" agreement, referred to as Appendix A, with the Charging Party Union for their office clericals and, in the past, had I The 14 dealer employers involved are: I. Francis Chevrolet Company 2. McKelvey-Kessler Oldsmobile 3. Charlie's Chevrolet 4. St. Ann Motors, Inc. 5. Castle-Wilson Buick 6. Downtown Ford 7. Jack Mathews Chevrolet 8. George Miller Chevrolet 9. Signal Dodge Sales, Inc. 10, Kaiser Chevrolet 11. King Dodge, Inc. 741 received more favorable wage rates from the Union. Isbell testified: ... they [the dealers] had discussions back and forth on that, and Ed Hayward mentioned that he talked with [Union Representative] Gibbs, and that he felt and thought from what Gibbs had said that it would have to definitely be a deal where we would negotiate from the previous "Appendix A" [agreement] upward, and that Carl Gibbs was not going to go along with any deal whereby . . . somebody had a lesser [pay scale] amount, it wouldn't be fair to the other dealers... 2 Isbell thereupon told the assembled employers that he "felt that we had enough discussion and that we should get something going, . . . and get the thing rolling so we could get a contract and get it over with." Thereafter, Hayward "wanted to know who would go along, and all 14 [dealer employers] agreed that they would go along by a show of hands ...." Nothing was said at this meeting about reserving the right for individual dealer employers to ratify any contract subsequently negotiated with the Charging Party Union. The dealer employers selected a bargaining committee and Isbell was named chairman of the commit- tee. The committee was instructed by the employer dealers "to make the best deal we could." Shortly following the above meeting of the 14 dealer employers, Isbell telephoned Union Representative Gibbs and informed Gibbs "that we had agreed to operate as a unit" with respect to the office clericals. Isbell scheduled a meeting with Gibbs in order to discuss the procedure for future negotiations. The following week, Isbell and Gibbs met and "laid the ground rules as to how we would attempt to work the contract." Thereafter, on or about September 12, 1973, the committee for the 14 dealer employers met with Gibbs at the Chase Hotel in order to negotiate a contract for the office clerical employees of the 14 dealer employers. The committee included Isbell of Charlie's Chevrolet, Ebeling of Downtown Ford, Gerber of St. Ann's Dodge, and Castle of Castle-Wilson Buick. The committee discussed with Gibbs, inter alia, wages, welfare and pension programs, the status of part-time employees, new classifications, and "starting wages." An agreement referred to as Appendix A (see G.C. Exh. 9) was negotiated that day. Isbell recalled that at both meetings with Gibbs, it was made clear "that we were operating as a group"-"the 14 dealers were represented by this Commit- tee." Isbell testified that after the office clerical employees of the 14 dealer employers-including Respondent Francis Chevrolet's office clerical employees-"ratified the deal," 12. Mallory Buick 13. Merollis Chevrolet 14. Weber Chevrolet Company 2 Isbell recalled that Hayward stated to the assembled 14 dealer employers: ... there were three dealers that didn't pay the standard deal, and that Gibbs had already informed him that there was going to be a deal whereby ... everybody was going to go from "Appendix A" on with whatever was negotiated on top of it for a contract and there wasn't going to be any more free rides as far as dealers not paying the standard deal Ifor their office clerical employees). 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee member Gerber and committee chairman Isbell telephoned the various dealers in order to "get them to ratify this contract." Isbell telephoned Les Francis, Sr. Isbell explained to Les Francis, Sr., the various provisions of the agreement. Les Francis, Sr., said: ". . . I don't pay the amount that is standard now . . . where do I stand .... Isbell replied to Les Francis, Sr.: ".. . I assumed that as we were operating as a group that he [Francis, Sr.] paid from Appendix A," the standard contract. Les Francis, Sr., then asserted to Isbell "that his son [Les Francis, Jr.] was at the [September 71 meeting [of the dealers ] . . . as an observer" and he was not bound by the contract which the committee had negotiated .3 However, Les Francis, Sr., also stated to Isbell: "I think I'm hung." Isbell specifically recalled that at the September 7 meeting of the 14 dealer employers, Les Francis, Jr., was present and in fact had "voted for it and agreed to it ... to work as a unit." Carl E. Gibbs, president of Charging Party Union, corroborated in substantial part the testimony of Isbell as stated above. Gibbs explained that during late January 1973 he had obtained signed union membership cards from 7 of Respondent's approximately 12 office clerical employ- ees; that he then met with Les Francis, Sr., "and asked him to recognize" the Charging Party Union as the designated bargaining agent for Respondent's office clerical employ- ees; that Les Francis, Sr., refused to do so; that Gibbs obtained two more signed union authorization cards from Respondent's office clerical employees; and that, shortly thereafter, Gibbs again met with Les Francis, Sr., and "asked for recognition." Gibbs recalled: And I asked for recognition . . . with the nine cards, and showed them to Mr. Francis [Sr.] He took them and looked at them and he refused to recognize me .... And I informed him if he didn't recognize me before the day was over, I would put pickets on him the next morning, and he agreed to call me later on in the day. Francis, Sr., and Gibbs met again later that day and Francis, Sr., signed a memorandum, dated January 24, 1973, stating in part: . . . This is to certify that Francis Chevrolet recogniz- es [Charging Party Union] as bargaining agent for the office employees, and hereby agrees to negotiate a contract covering all the clerical employees in the office. Gibbs further explained that, at the time, Respondent Francis Chevrolet Company was a party to the mu'"iem- ployer bargaining contract between the Association and Charging Party Union; that the office clerical employees of t'iie dealer employers were not included in the multiem- ployer unit; and that, as a result, Charging Party Union negotiated separate contracts with various employer dealers for their office clericals, which agreements were referred to as "Appendix A to this [multi-employer] contract." Gibbs and Francis, Sr., thereafter bargained over the terms of an agreement or "Appendix" for Respondent's office clerical employees. Gibbs testified that "at that time we were under the wage freeze and you couldn't bring [Respondent's office clerical employees] all the way up to the top rate .. ," as provided in the Union's standard agreement or appendix for office clerical employees. The parties, however, adjusted and settled their differences over wage scale. And on or about February 1, 1973, Les Francis, Sr., signed the Union's "Participation Agreement" in order "to obtain retirement benefits" for the office clerical employees .4 The application for coverage under this pension plan recites, inter aka, that the first agreement between the parties was effective as of February 1, 1973 (G.C. Exh. 4), and, as noted, the Participation Agreement is similarly dated February 1, 1973. Thereafter, Respon- dent made the periodic payments to the pension fund for its office clerical employees. In addition, as the parties had agreed, union dues for the office clerical employees were deducted pursuant to checkoff provisions and mailed to the Union.5 The parties also discussed and agreed upon a vacation plan and sick leave provisions. According to Gibbs, Les Francis, Sr., and he had agreed upon "an oral appendix" or agreement for Respondent's office clerical employees. Gibbs explained: . . I [Gibbs] had asked him [Francis, Sr.] to sign this appendix, but he refused because it did have the standard wages in it, but it had a clause that said, with wage controls [the rates provided] would not go in effect if they were not approved, but he refused to sign that... Gibbs, however, added that Les Francis, Sr., "did put the rates in effect that were negotiated." Les Francis, Sr., deducted union dues from office clerical employees' wages as agreed; he forwarded and continues to forward these amounts to the Union. Les Francis, Sr., also has made and continues to make contributions for the office clerical employees to the agreed-upon pension fund. Gibbs also recalled that during May 1973 he spoke with Ed Hayward, the executive secretary for the association, about multiemployer or group bargaining with respect to the office clerical employees. Gibbs explained: ' Isbell testified I explained the deal [to Les Francis, Sr ] and when I asked for ratification, why, as I recall, he said no, that he wasn't going to because of the fact his son was there as an observer 4 The Participation Agreement, dated February 1, 1973, provides in part Whereas, the Union and the Employer have entered into an agreement which provides for participation in the Pension Fund in order to obtain retirement benefits for employees represented by the Union and employed by the Employer 6 This Participation Agreement shall continue in full force and effect during the life of the current collective bargaining agreement between the parties and during all renewals and extensions thereof The obligation to make contributions to the Fund should be terminated when and if such contributions are no longer required by a collective bargaining agreement between the parties 5 Gibbs testified that Respondent's clerical employees had signed appropriate authorizations for checkoff "at the same time the contract was concluded " FRANCIS CHEVROLET COMPANY I [Gibbs] asked him [Hayward] to see if he could get the dealers who had office employees that belonged to our Union together to see if they would agree to a labor committee so I could negotiate a contract with a group instead of individuals, the same as he did with the dealers [in the association] ... . Hayward then agreed that "he would try to get the dealers together and see if they would do it." Thereafter, about September 7, 1973, Isbell of Charlie's Chevrolet telephoned Gibbs. Isbell apprised Gibbs: ... the dealers had a meeting and they chose a labor Committee, and they chose [Isbell] as the chairman, and that's the reason he [Isbell] was contacting me (Gibbs]. Isbell explained to Gibbs that Isbell had been chosen as chairman of "the negotiating Committee to negotiate the contract" with Gibbs for the office clerical employees of the 14 dealer employers, as named supra. Isbell made clear to Gibbs that he represented "all 14 of them." Gibbs and Isbell met on or about September 10, 1973. The two "discussed the procedures for the negotiations." Gibbs, as he testified, asked Isbell at that meeting "who he represented." Isbell responded: "He represented all 14 dealers." A meeting with the full committee and Gibbs was then scheduled. Thereafter, on or about September 12, 1973, the full committee met with Gibbs at the Hotel Chase. During the meeting, Gibbs "specifically asked [Isbell] in front of all the Committee did he [Isbell] represent all of the [dealer employers involved] and . . . specifically asked about Francis and" two other of the 14 dealer employers. Gibbs asked about the three dealer employers because, as Gibbs testified, "at that time their [wage] rates were lower than the other . . . 11 dealers . . . and [Gibbs] wanted to know if he [Isbell] represented them ...." Gibbs apprised Isbell and the committee that the rates of Francis and the two other dealer employers "would have to come up to the rest of the people and he [Isbell] assured me [Gibbs] that he did represent all 14 people." The parties negotiated over, inter alia, vacations, sick leave, wage scale, and related items . They reached an agreement that same day. A lower, special rate was agreed upon for "new employees coming in ...." Gibbs added: This agreement was the appendix which was tied onto the [multiemployer] standard automotive agreement Gibbs identified General Counsel's Exhibit 9 as "the appendix that we negotiated" which was "typed up and became the contract to cover these office employees, the appendix to the standard automotive agreement." The effective period of the Appendix is the same 3-year period (1973-76) covered by the multiemployer contract with the 6 G.C. Exh. 10 is the "Standard Automotive Agreement" negotiated by the association and the Charging Party Union for the larger multiemployer unit, as referred to above (effective August 1, 1973, through July 31, 1976). Gibbs explained that the "Standard Automotive Agreement is, in part, applicable to the agreement or "appendix" covering the office clericals of 743 association. The agreement or "appendix" recites in its blank form, in part as follows: APPENDIX "A" To the Standard Automotive Agreement between St. Louis, Missouri, party of the first part, and AUTOMOTIVE, PETROLEUM AND ALLIED INDUSTRIES EMPLOYEES UNION, LOCAL NO. 618, party of the second part, for the period of 1973-1976. All of the terms and conditions set out in the Standard Form Agreement shall apply to the employees covered hereunder, except those which may be changed by the following provisions: This Appendix "A" shall cover all the office employees of in classifications listed herein, and the following rates shall apply: CLASS I. Office Manager and Accountants: CLASS II. Secretary, Jr., Accounting Clerk, IBM Operators: CLASS III. Stenographer, Bookkeep- ing Machine Operator: CLASS IV. Switchboard Operator, Cashiers & Billers : CLASS V. File Clerk, Switchboard-Receptionist, Mailing and Follow-up: CLASS VI. Part-time Employees: All present employees shall receive 25 cents hourly increases over previous Appendix "A" classification, effective 8-1-73, 25 cents effective 8-1-74 and 25 cents effective 8-1-75. VACATIONS: Office employees shall receive two weeks vacation after one year of employment and three weeks vacation after fifteen years of employment. Employees hired after 9-15-73, vacations shall be the same as the Standard Automotive Agreement. SICK LEAVE: Office employees covered by this Appendix "A" shall be entitled to two weeks sick leave, starting on the third day of illness, at the regular rate of pay. The foregoing provisions to become effective and to continue during the term of the Standard Automotive Agreement for the period 1973-1976. FOR THE COMPANY: By Date 6 FOR THE UNION: By Gibbs testified that the office clericals of the 14 employer dealers met and ratified the above contract or Appendix A. Thirteen of the 14 dealer employers also signed the the 14 dealer employers. Thus, as Gibbs noted, the Standard Automotive Agreement, among other things, "covers the dues deduction procedure, the grievance procedure, the holidays land] the hours worked" for the office clerical employees. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contracts or Appendix and mailed them to Gibbs. Gibbs explained that Isbell notified him that "he was having trouble with Jack Mathews Chevrolet and Francis Chevro- let." Mathews, however, signed the agreement. And, on September 21, 1973, Gibbs sent a letter to Respondent Francis Chevrolet Company requesting the employer to sign the enclosed "Appendix A to the Standard Automo- tive Agreement, covering the office employees for the period 1973-1976." Les Francis, Sr., by letter dated September 24, 1973, replied to Gibbs, as follows: I was somewhat surprised to receive this letter and copies of your proposed Appendix, as we have not yet negotiated any understanding or agreement with Local 618 with respect to our office employees, nor have we authorized anyone to negotiate on our behalf with respect to our employees. We are prepared to negotiate with you a collective bargaining agreement for our office employees. Please contact me at your convenience, so that we may arrange for this purpose.? III. DISCUSSION The Board, with approval of the courts, has held (Western States Regional Council No. 3, Woodworkers v. N. L. R. B., 398 F.2d 770, 773-776 (C.A.D.C., 1968): ... the test to be applied in determining the status of a multiemployer unit is "whether the members of the group have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than individual action, and whether the union representing their employees has been notified of the formation of the group and the delegation of bargain- ing authority to it, and has assented and entered upon negotiations with the group's representatives. See Eerden Company, 154 NLRB 496, 499 (1965); The Kroger Company, 148 NLRB 569, 573 (1964). "On the ultimate finding of employer intent, no express agreement to be bound by group action was required .. . although that sometimes exists . . . ... NL.R.B. v. Bagel Bakers Council of Greater New York, 434 F.2d 884, 886-887 (C.A. 2, 1970). And, as the Board stated in Wm. T Kirley Lumber Company, 189 NLRB 130, 131 (1971): r Les Francis, Sr , testified , inter a/a, that "there is some question about whether [the Charging Party Union] represents our office employees or not." He claimed that he recognized the Union during early 1973 as bargaining agent for Respondent 's office employees because he "did not feel that we could afford a strike at that time " Les Franc - Sr, also asserted that only he "has the authonty to approve labor contracts" for Respondent, that during May 1973 he attended "a meeting to discuss the advisability of the dealers who had office workers represented by the Teamsters to determine if the dealers wanted to bargain with the Union jointly or as a group ", that he then apprised the dealer owners that he "did not want to participate in any point negotiations ; that he subsequently sent his son , Les Francis, Jr, to the meeting of 14 employer dealers in September 1973 "strictly as an observer" and so advised Ed Hayward; and that he similarly apprised Isbell that "nobody speaks for me on labor except me " Les Francis, Jr, also asserted, inter a/a, that he was instructed by his father to attend the September 1973 meeting of dealer employers "strictly as an observer " He admittedly voted at the meeting Les Francis , Jr, asserted that he voted "to explore the possibility of negotiating a better contract While the 1967-1970 agreement entered into by [the Company ] states it was "by and between" the Employ- er and the Union, was signed by these parties, and appears to grant the Union recognition as representa- tive of his employees, these details are merely incidental byproducts of an established multiemployer bargaining relationship. And, in circumstances such as those present here, the Board does not give controlling weight to the technicality of separate, signed agreements for purposes of determining the existence or nonexistence of multiemployer units ... . Finally, where as here, employers have evidenced an intention to be bound in collective bargaining by group action, that intent is not defeated by the association's lack of bylaws or formal organization, or by changes in its membership . . . [footnotes and citations omitted]. And see N. L.R.B. v. Bagel Bakers 'Council of Greater New York, supra at 887. Applying these principles here, I find and conclude that Respondent Francis Chevrolet Company violated Section 8(a)(1) and (5) of the Act by refusing to execute the collective-bargaining agreement which had been negotiat- ed in its behalf with the Charging Party Union on September 12, 1973, by the committee for the group of 14 employer dealers. The credited evidence recited above establishes that the 14 employer dealers, including Respon- dent Francis Chevrolet Company, manifested "an unequi- vocal intention to be bound in collective bargaining by group rather than individual action" and the Charging Party Union, "representing their [office clerical employees ] , assented and entered upon negotiations with the group's representatives." Western States Regional Council No. 3, Woodworkers v. N.L.R.B., supra Charles Isbell, president of 1 of the 14 employer dealers involved, credibly testified that representatives of the 14 dealer employers met in May 1973 in order to "discuss whether or not they wanted to operate as one" with respect to their office clerical employees. The 14 employer dealers were members of a larger multiemployer association which bargained with Charging Party Union for a unit consisting of, inter aka, the employer-members' garage parts employees, garage specialists, general garage laborers, used car cleanup and lot employees, and porters and/or sweepers. The employer d:,alers also had separate collective-bargaining agreements with Charging Party Union for their respective office " Les Francis, Jr, is vice president and general manager of Respondent Company The testimony of Gibbs and Isbell, as stated above , is in large part mutually corroborative The testimony of Les Francis, Sr, and Les Francis, Jr, in part substantiates the testimony of Gibbs and Isbell I find and conclude, on the record before me, including the demeanor of the witnesses, that the testimony of Gibbs and Isbell as stated above is credible and trustworthy Insofar as the testimony of Les Francis, Sr, and Les Francis, Jr, conflicts with the testimony of Gibbs and Isbell as stated above, I credit the latter as more reliable , trustworthy, and complete In particular, I do not credit Les Francis , Sr 's and Les Francis , Jr 's assertions that Les Francis, Jr, attended the meeting of employer dealers on September 7 only as an observer or that Les Francis, Sr, communicated this alleged limitation of authority to the dealer employers or their representatives Further, I do not credit Les Francis, Sr's assertion that he apprised the dealers at the May 1973 meeting that he "did not want to participate in anyjoint negotiations " Nor do I credit the assertion of Les Francis, Jr , that he only voted at the September 7 meeting "to explore the possibility" of negotiating a contract with Charging Party Union FRANCIS CHEVROLET COMPANY clerical employees. These separate collective-bargaining agreements were styled as Appendix A to the multiemploy- er association's "Standard Automotive Agreement." And, as Isbell credibly explained, the "consensus" at the May 1973 meeting of the 14 employer dealers was that they wanted, in effect, unit or group bargaining for their office clerical employees. Thereafter, on September 7, 1973, after the multiemployer association had negotiated its 1973-76 contract with the Charging Party Union, the 14 employer dealers met again in order to discuss "operat[ing] as a unit for negotiating purposes" with respect to their office clericals.8 Isbell urged the dealer employers to "get the thing rolling so we could get a contract and get it over with." And, the representatives of all 14 dealer employers, including Les Francis, Jr., attending for Respondent, "agreed that they would go along by a show of hands ...." A bargaining committee was selected and instruct- ed by the group "to make the best deal we could." The committee, under the chairmanship of Isbell, met with Union Representative Carl Gibbs. Isbell credibly testified that the 14 dealer employers "had agreed to operate as a unit" or "group" with respect to their office clericals. A contract, styled as Appendix A to the multiemployer association's 1973-76 standard agreement, was negotiated for the office clerical employees of the 14 dealer employers. Thereafter, the office clerical employees of the 14 dealer employers ratified the agreement (Appendix A) and 13 of the 14 employer dealers also signed the agreement. Union Representative Carl Gibbs credibly testified that, previous- ly, he had asked Ed Hayward, executive secretary of the larger multiemployer association, "to see if he could get the dealers who had office employees that belonged to the Union together to see if they would agree to a labor committee so [Gibbs] could negotiate a contract with a group instead of individuals, the same as he did with the dealers" for the larger multiemployer association. Hayward had agreed that he "would try to get the dealers together" and, thereafter, on September 7, 1973, committee chairman Isbell notified Gibbs that "the dealers had a meeting and they chose a labor committee ...." Isbell apprised Gibbs at their September meeting that "he represented all 14 dealers." And, as stated, the committee and Gibbs thereupon negotiated and agreed upon a new agreement or Appendix A. On this record, I reject counsel for Respondent's assertion that Respondent "Employer has never joined a multiemployer bargaining group with respect, to office employees or expressed an intention to be bound by any contract negotiated by such a group." As stated, Company President Les Francis, Sr., attended the May 1973 meeting of the 14 employer dealers where the subject of multiem- ployer or group bargaining for the office clericals was first discussed. Les Francis, Sr., sent his son, Les Francis, Jr., vice president and general manager of the Company, to the September 7, 1973, meeting. The subject of multiemployer or group bargaining was again discussed. Ed Hayward, s As found, the meeting was held in the office of Ed Hayward, executive secretary of the larger multiemployer association . Hayward "made the point that [the 14 dealers] should definitely operate as a unit for negotiating purposes ... . 9 1 have, as noted above, discredited Respondent's assertions, inter alia, 745 executive secretary of the Association, made clear to the 14 employer dealers, that [Union Representative Gibbs] had already informed [Hayward] that ... everybody was going to go from "Appendix A" on with whatever was negotiat- ed on top of it for a contract and there wasn't going to be any more free rides as far as dealers not paying the standard deal [for their office clericals]. A vote was called for in order to determine "who would go along" and Les Francis, Jr., and the representatives of the 13 other dealer employers voted for multiemployer or group bargaining by a show of hands. After the new agreement or Appendix A had been negotiated by the committee for the 14 employer dealers with Charging Party Union, Les Francis, Sr., asserted: ". . . he wasn't going to sign because of the fact that his son was there [at the September 7 meeting] as observer ...." This alleged limitation of authority was never communicated to the 13 other employer dealers, their representatives or the Charging Party Union until after the new contract had been negotiated. Under settled principles of agency law, Respondent Company, in the circumstance of this case, is responsible for the conduct and participation of its vice president and general manager. See, e.g., N.L.R.B. v. Local 815, Teamsters, 290 F.2d 99, 103-104 (C.A. 2, 1961); N. L. N.L.R.B. v. Local 3, Electrical Workers [N.Y. Tele. Co.], 467 F.2d 1158 (C.A. 2, 1972).9 In addition, counsel for Respondent argues that the "General Counsel has failed to prove that the Charging Party has ever represented a majority of its office clerical employees ...: ' The credited evidence of record is contrary to this somewhat belated contention. Thus, during January 1973, the Charging Party Union had been designated by 9 of Respondent's approximately 12 office clerical employees as their bargaining agent. Respondent signed a memorandum recognizing the Charging Party Union "as bargaining agent for the office employees." Respondent negotiated an oral agreement with the Charg- ing Party Union for the office clericals on or about February 1, 1973 and, thereafter, complied with the terms of the agreement.10 Indeed, as late as September 24, 1973, Respondent apprised the Charging Party Union that "we are prepared to negotiate with [the Charging Party] a collective bargaining agreement for our office employees." I find and conclude that the Charging Party Union had been duly designated as bargaining agent by a majority of Respondent's office clerical employees during early 1973 and Respondent thereafter recognized and bargained with Charging Party Union as collective-bargaining agent for these employees. Further, I find and conclude that Charging Party Union had been duly recognized by the 13 other dealer employers as bargaining agent for their office clerical employees and that, at all times material, Charging Party Union in fact represented a majority of employees in that Francis, Jr., attended the September 7 meeting only as an observer or that his alleged limitation of authority was communicated to the dealers or the Union before the agreement was negotiated and agreed upon. 10 Charging Party Union also had separate collective-bargaining agree- ments for the office clericals of the other 13 employer dealers. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit consisting of all office clencal employees of the group of 14 employer dealers involved herein." There is testimony of record by Committee Chairman Isbell, in part as follows: ... Well, as we [Union Representative Gibbs and committee chairman Isbell] discussed the contract, we kept mention[ing] the points that we were trying to win, that we had to take this back to the dealers to get their approval on the thing. So as we completed our deal, Gibbs was to take his deal to the office girls and we were to take our deal to the . . . dealers ... . The question is raised, does this and related testimony manifest an intention of the parties not to be bound to any agreement without individual dealer ratification. On this record, I am persuaded that the parties did not contem- plate such a condition to agreement. Thus, as stated, at the September 7 meeting of the group of 14 dealer employers, Hayward made it clear that Gibbs "had already informed [Hayward] that everybody was going to go from Appendix A on . . . there wasn't going to be anymore free rides as far as dealers not paying the standard deal ...." The group of 14 employer dealers unanimously voted for multiemployer or a unit bargaining. A committee was selected and instructed "to make the best deal [the committee] could." No requirement of individual employer ratification was discussed. Thereafter, when committee chairman Isbell and Union Respresentative Gibbs met, it was made clear that Isbell represented "all 14 of them." Gibbs "specifically asked [Isbell] in front of all the Committee did he represent all of the [dealer employers] and . . . specifically asked about" Respondent and two of the other 14 dealer employers. Gibbs was assured that the committee represented all 14 of the employers. According- ly, I would find and conclude that the group of 14 employer dealers and the Charging Party Union did not contemplate any subsequent ratification of the agreement by individual dealers as a condition of agreement. Rather, the testimony stated above indicates that Isbell and Gibbs contemplated that each of the individual dealers would subsequently sign "Appendix A" after the committee and the Union had agreed upon its terms. Cf. Houchens Market of Elizabethtown, Inc. v. N.L R.B., 375 F.2d 208 (C.A. 6, 1967), enfg. 155 NLRB 729, 730 (1965); M & M Oldsmobile, Inc., 156 NLRB 903, 905 (1966), enfd. 377 F.2d 712 (C.A. 2, 1967). And, "in the circumstances such as present here, the Board does not give controlling weight to the technicality of separate, signed agreements for purpos- es of determining the existence or nonexistence of ' _ulti- employer units. . . ... Wm. T. Kirley Lumber Co., 189 NLRB 130, 131.12 In sum, I find and conclude that, at all times material, the Charging Party Union has been and is the representa- tive for collective-bargaining purposes of all office clencal employees of the group of 14 employer dealers named above, including Respondent; that this unit is an appropri- ate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act; 13 that Respondent has been and is now refusing to bargain with the Charging Party Union as the exclusive bargaining representative of the employees in said multiemployer unit by refusing to execute the collective-bargaining agreement negotiated in its behalf by the Committee with the Charging Party Union on or about September 12, 1973; and that Respondent has thereby violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent Francis Chevrolet Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automotive, Petroleum and Allied Industries Em- ployees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Charging Party Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office employees of the following 14 employer dealers, employed at the dealerships stated herein, exclud- ing all salesmen, partsmen, porters, mechanics, profession- al 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: Francis Chevrolet Company, Lindbergh & St. Charles Rock Road, St. Louis, Missouri McKelvey-Kessler Oldsmobile, 9291 W. Florissant, St. Louis, Missouri Charlie's Chevrolet, 3721 S. Grand, St. Louis, Missouri St. Ann Motors, Inc., 10805 St. Charles Rock Road, St. Louis, Missouri 11 Counsel for Respondent's related contention that Les Francis, Sr, executed a recognition memorandum with Charging Party Union during early 1973 "under duress" is contrary to the credible evidence of record Les Francis, Sr., with the advice of counsel, voluntarily granted recognition to Charging Party Union during early 1973, as recited above 12 Counsel for Respondent also argues that "the increases negotiated by the group and the union clearly violate Wage Price Guidelines , at least as to Francis " The evidence of record does not sufficiently support this general assertion . Moreover, as the Board stated in Washington Employers, Inc, 200 NLRB No 117 (1973). Respondents thus cannot now complain of this Board's requiring them to pay what they agreed upon, first during the negotiations, and again after Phase II went into effect . This should not be construed however, as a determination regarding the obligations of Respondents, or indeed of other employers in future cases, should the Pay Board rule that it is not in the interest of the economic stabilization program to allow the continued payment of the full amount of the negotiated increase 13 The propriety of a bargaining unit consisting of office clerical employees is not seriously disputed by Respondent Here, the office clerical employees of the group of 14 employer dealers have been excluded from the Association's larger multiemployer unit, they have interests and working conditions which substantially differ from the production and maintenance and other employees , and, under all the circumstances of this case, constitute an appropriate bargaining unit Cf. General Electric Co, 107 NLRB 70 (1953) FRANCIS CHEVROLET COMPANY 747 Castle-Wilson Buick, 490 N. Kingshighway, St. Louis, Missouri Downtown Ford, 2222 Market St., St. Louis, Missouri Jack Mathews Chevrolet, 2244 S. Kingshighway, St. Louis, Missouri George Miller Chevrolet, 3900 Lemay Ferry Road, St. Louis, Missouri Signal Dodge Sales, Inc., 7127 S. Lindbergh, St. Louis, Missouri Kaiser Chevrolet, 5400 Natural Bridge, St. Louis, Missouri King Dodge, Inc., 3300 S. Kingshighway, St. Louis, Missouri Mallory Buick, 10950 Page Ave., St. Louis, Missouri THE REMEDY Having found that Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist from engaging in the violations found or in like or related conduct and take certain affirmative action designed to effectuate the purposes of the Act. Respondent will be directed to execute forthwith the collective-bargaining agreement negotiated in its behalf with the Charging Party on September 12, 1973, and to bargain in good faith with the Charging Party Union as the exclusive bargaining representative of all the employees in the unit described above. Respondent will also be directed to make whole and reimburse its employees in the above unit for any financial losses sustained by them as a result of Respondent's unlawful refusal to execute the collective-bargaining agreement negotiated in its behalf on or about September 12, 1973, together with interest computed in accordance with the Board's decision in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine any amounts of backpay due employees under the terms of this Decision. ORDER 14 Merollis Chevrolet, 8345 N. Broadway, St. Louis, Missouri Weber Chevrolet Company, 12015 Olive Street Road, St. Louis, Missouri 4. At all times material Charging Party Union has been and is the representative for the purposes of collective bargaining of the employees in the multiemployer unit described above and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 5. Since on or about September 12, 1973, Respondent has been and is now refusing'to bargain with the Charging Party Union as the exclusive collective-bargaining repre- sentative of all the employees in the unit described above, in that Respondent has been refusing and continues to refuse to execute the collective-bargaining agreement negotiated in its behalf by a committee duly established and created by the group of 14 dealer employers for that purpose, in violation of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, Respondent Francis Chevrolet Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Charging Party Union, Automotive, Petroleum and Allied Industries Employees Union, Local 618, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective- bargaining representative of all the employees in the multiemployer unit described below: All office employees of the following 14 employer dealers [see Conclusions of Law 31 employed at the dealerships stated herein, excluding all salesmen, partsmen, porters, mechanics, professional employees, guards and supervisors as defined in the Act and all other employees: (b) Refusing to execute the collective-bargaining agree- ment negotiated in Respondent's behalf on or about September 12, 1973, by the Committee of the group of said 14 employer dealers. (c) In any like and related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 1" In the event no exceptions are filed as provided by Sec. 102.46 of the provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Rules and Regulations of the National Labor Relations Board, the findings, Board and become its findings, conclusions, and order, and all objections conclusions, recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Execute forthwith the collective-bargaining agree- ment negotiated in its behalf on or about September 12, 1973, by the Committee of the group of said 14 employer dealers. (b) Bargain in good faith with Charging Party Union as the exclusive bargaining representative of all the employees in the unit described above. (c) Make whole its employees in the above unit for any financial losses sustained by them as a result of Respon- dent's refusal to execute the collective-bargaining agree- ment negotiated in its behalf on or about September 12, 1973, in the manner set forth in this Decision. (d) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in the Decision. (e) Post at its offices and facilities in St. Louis, Missouri, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 14, shall after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 15 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX All office employees of the following 14 employer dealers employed at the dealerships stated herein, excluding all salesmen, partsmen, porters, mechanics, professional employees, guards and supervisors as defined in the Act and all other employees: Francis Chevrolet Company McKelvey-Kessler Oldsmobile Charlie's Chevrolet St. Ann Motors, Inc. Castle-Wilson Buick Downtown Ford Jack Mathews Chevrolet George Miller Chevrolet Signal Dodge Sales, Inc. Kaiser Chevrolet King Dodge, Inc. Mallory Buick Merollis Chevrolet Weber Chevrolet Company WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their Section 7 rights. WE WILL bargain in good faith with Charging Party Union as the exclusive bargaining representative of all our employees in the unit described above. WE WILL execute forthwith the collective-bargaining agreement negotiated in our behalf on or about September 12, 1973, by a committee of a group of said 14 employer dealers. WE WILL make whole our employees in the above unit for any financial losses sustained by them as a result of our refusal to execute the collective-bargaining agreement negotiated in our behalf on or about September 12, 1973, as provided in the Board's Decision and Order. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that Francis Chevrolet Company violated the National Labor Relations Act. We therefore notify you that: WE WILL NOT refuse to bargain in good faith with Automotive, Petroleum and Allied Industries Employ- ees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective- bargaining representative of all our employees in the multiemployer unit described below: FRANCIS CHEVROLET COMPANY (Employer) Dated By (Representative) (Title) 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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.