Crossroads Chevrolet, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crossroads Chevrolet, Inc. and Van Storage Drivers, Packers, Warehousemen & Helpers Union, Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 31-CA-6560 November 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On August 16, 1977, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed exceptions, a supporting brief, and the brief to the Administrative Law Judge in answer to Respon- dent's exceptions, and Respondent filed an answer to the General Counsel's 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 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.1 The remedy is also modified so that backpay and interest thereon is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 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 as modified below and hereby orders that the Respon- dent, Crossroads Chevrolet, Inc., North Hollywood, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights protected by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. l In his recommended Order the Administrative Law Judge uses the narrow cease-and-desist language. "in any like or related manner. Respondent here has committed violations which go to the very heart of the Act. We shall therefore require Respondent to cease and desist from "in any other manner" infringing upon the rights guaranteed to employees by Sec. 7 233 NLRB No. 105 of the Act. N. LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). 2 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and we intend to abide by the following. WE WILL NOT fail to recall and reinstate economic strikers following an unconditional offer to return to work to their same or substan- tially equivalent positions if and when a vacancy exists in said position. WE WILL NOT in any other manner interfere with, restrain, or coerce employees with respect to these rights. WE WILL make employees Richard Hampton and Ivan Morandini whole for earnings lost, plus interest, because of our failure to recall and reinstate them at the earliest date a vacancy in their former or substantially equivalent positions existed. CROSSROADS CHEVROLET, INC. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard by me on April 19, 1977, in Los Angeles, California, based on a charge filed by the Van Storage Drivers, Packers, Warehousemen & Helpers Union, Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union) on November 1, 1976, a copy of which was served on Respondent by registered mail on or about the same date.' A complaint issued on December 15, alleging violations of Section 8(a)( I) and (3) of the National Labor Relations Act, as amended, in that Respondent discrimi- nated against two employees by failing to recall them to fill vacancies following a strike in which they had made unconditional offers to return to work. I All dates hereinafter will refer to the year 1976 unless otherwise indicated. 728 CROSSROADS CHEVROLET, INC. FINDINGS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in North Holly- wood, California, where it is engaged in the sale and repair of automobiles. In the course and conduct of its business operations, Respondent annually purchases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of California. Respon- dent annually derives gross revenues in excess of $500,000. On the basis of these admitted facts I herewith find Respondent to be an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION At the hearing Respondent acknowledged and I herewith find the Union to be, and at all times material herein to have been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union filed an election petition on June 29 and thereafter a stipulated consent election agreement was entered into on August 7 in Case 31-RC-3551 and an election was held on September 2. It was necessary for the Board to consider a number of challenged ballots and thereafter on October 17 the Board issued its certificate of results indicating that the Union had failed to receive a majority of the participating voters (G.C. Exhs. 3, 4, and 5). The uncontroverted evidence further indicates that on July 7, in spite of the fact that the Union had petitioned for an NLRB-conducted election, it became impatient and sought to have Respondent voluntarily recognize the Union. When Respondent failed to voluntarily recognize the Union some of the employees decided that they did not wish to wait for an election and on July 7 decided to strike. On July 12 unfair labor practice charges were filed in Case 31-CA-6275 by the Union against Respondent. On July 20 the charges were withdrawn and the testimony is uncontro- verted that the strikers made an unconditional offer to return to work on the same day. 2 The parties hereto also stipulated to the authenticity of the letter dated July 20 attached to Respondent's answer as Exhibit B, which was a 2 During the hearing the parties stipulated to the authenticity of the letter dated July 15 from Edward T. Dietrich, secretary-treasurer of the Union, to the general manager, Bob Slack, of Respondent, which contained an unconditional offer to return to work on behalf of all striking employees. The date on this letter would seem to indicate minor conflict with the testimony which went undenied and was to the effect that the strike ceased on July 20 at which time the employees made an unconditional offer to return to work. This apparent minor conflict is of no real significance, however, because the two jobs the employees involved herein sought to return to had been filled on July 15 and remained so on July 20. 3 While there was no explanation of the reason why the charge was withdrawn, it is generally known that the practice of the General Counsel's office is to advise the Charging Party when they find a charge to be without letter from the general manager, Robert Slack, to the Union indicating that Respondent would permit all striking employees who had not been replaced to return to work. B. The Evidence Regarding Richard Hampton Hampton was first employed by Respondent on March 25, 1975, as an automotive brake and alignment mechanic. He testified that he was paid $7.75 per flat rate hour for each hour of customer billing and that he averaged approximately $1,350 per month before the strike. Hamp- ton was one of the strikers who walked off the job shortly after noon on July 7. At the time the strike concluded and he unconditionally offered to return to work, he had been replaced by a new employee, Aloysius Woo. The records of the Company which were stipulated to by the parties as being the authentic records normally kept in the regular course of business indicated that one Leonard McCammon was hired by Respondent as a front-end and brake alignment mechanic on September 13. On November 12 McCammon was discharged for failure to appear for work or to report in and thereafter on December 16 Hampton was recalled to work as a front-end and brake mechanic for Respondent. Woo continued to work during the time that McCammon was there and also after Hampton was recalled, but was discharged by Respondent on March 29, 1977, and the company records indicate that he is not eligible for rehire. After Hampton was recalled to work, although his hourly rate remained the same as that prior to the strike ($7.75 per hour), his monthly earnings dropped to approximately $850 per month. C. Analysis and Conclusion Regarding Hampton Respondent's answer to the complaint, which was filed on December 20, sets forth an affirmative defense in which Respondent seems to contend that, because the Union filed unfair labor practice charges in connection with this entire matter which were thereafter withdrawn 3 and because the Union in its letter of July 21 said (see Exh. C attached to Respondent's answer which the parties stipulated at the hearing was an authentic copy of a letter written and received at approximately the time indicated), "it is our contention that this is not an economic strike in nature as there is at least one other unfair labor practice charge pending," the General Counsel is estopped from trying this case on the theory of failing to return an "economic striker" after an unconditional offer to return to work has been made.4 Such an argument is sheer sophistry and is totally without merit. An opinion expressed by a charging merit and to give the party an opportunity to withdraw that charge before it is formally dismissed. 4 Some of the testimony solicited by Respondent's counsel tended to establish that the strike was a recognitional strike. While this is a term used by those with some degree of sophistication in labor relations, it is in its broader sense nothing more than an economic strike for the purpose of gaining recognition. In labor law strikes are either economic strikes or unfair labor practice strikes. When employees strike because an employer has committed an unfair labor practice, it is labelled an unfair labor practice strike. When employees strike in order to put economic pressure on their employer and thereby gain some desired objective (i.e.. more money, shorter hours. recognition) it is labelled as an economic strike. In this instance the (Continued) 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD party regarding the nature of a strike-albeit a correct or incorrect characterization-is certainly not binding on the General Counsel. Moreover, there was no suggestion in the evidence that Section 8(b)(7)(B) of the Act was violated and in the absence of such a showing the strikers are entitled to reinstatement in accordance with Board law. 5 When an economic strike occurs, the employer is free to hire permanent replacements for the strikers and may lawfully refuse a striker's request for reinstatement if he has been permanently replaced at the time the strike has ended.6 In a 1968 decision,? the Board expanded the employer's obligation and defined the status of replaced economic strikers as follows: [E]conomic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime ac- quired regular and substantially equivalent employ- ment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. Applying the Board decision to the factual situation of this case, it is crystal clear that Respondent had no obligation to rehire or reinstate Richard Hampton on July 20 at the time of his unconditional offer to return to work because he had been replaced. On the other hand, when the Company decided to hire a second brake and front-end alignment mechanic, Respondent had an obligation to offer the position to Hampton, which it failed to do. Respondent offered no evidence of legitimate and substan- tial business reasons for its failure to recall Hampton. I find merit to the General Counsel's complaint as set forth in amended subparagraph 8(a) and shall recommend that Hampton be made whole for wages lost from September 13 until he was offered reinstatement by Respondent. General Counsel argues that because Hampton's replace- ment, Aloysius Woo, was released by Respondent March 29, 1977, that he (Woo) was not a replacement retained in good faith. This is sheer speculation on the part of General Counsel. There is not one iota of proof to support such a claim. Hampton should have been recalled when the business of Respondent increased to such a point that it was deter- mined that two brake and front-end alignment men were necessary and I have so found. Hampton was paid at his former rate of pay per hour and the mere fact that (because there were now two employees instead of one) he did not work as many hours and thus his take-home pay was something less than he had earned prior to the strike was not illegal or improper. The work of brake and front-end alignment was shared equally. If Hampton did not want the job he did not have to take it, but as General Counsel employees' objective was to have the Respondent Company recognize the Union as the bargaining agent, thus it was an economic strike. I See Local Union No. 707, Highway and Local Motor Freight Drivers, Dockmen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Claremont Polychemical Corp.), 196 NLRB 613 (1972), for a very complete analysis of such a situation. 6 N.L.R.B. v. MacKay Radio and Telegraph Co., 304 U.S. 333, 345-346 (1938). correctly pointed out even if the new job is part time Respondent is obligated to offer it to the striker.8 I shall recommend dismissal of paragraph 8(c) of the complaint. D. Evidence Relating to Morandini Morandini was first employed by Respondent in June 1971 as a service adviser. In June 1972 he was promoted to the classification of dispatcher and continued in that job until he walked out with the other employees on July 7, 1976. At the time of the strike Morandini testified that he was earning a salary and commission with a $900-a-month guarantee and that he generally averaged about $900 per month. Morandini was among those employees who offered to unconditionally return to work on July 20 but his position had been filled by a new employee named Reed who was hired on July 15. The record evidence established that Reed quit on October I and thereafter was replaced by an employee then on the payroll named McKriel. McKriel was paid $600 a month as a dispatcher trainee but after 2 months this proved to be unsatisfactory and it was necessary to return McKriel to his former job at which time Morandini was offered reinstatement. Other than the obvious $300-per-month savings on salary there was no evidence presented to support Respondent's failure to reinstate Morandini as being "for legitimate and substantial business reasons." E. Analysis and Conclusion Regarding Morandini The evidence is undenied that a vacancy was created on October I when Reed resigned as a dispatcher. Clearly the Board law as set forth in Laidlaw, supra, required Respondent to offer reinstatement to Morandini. Where an employer hires a successor replacement to succeed an economic striker's departing original replacement, the fact that it pays the successor replacement at a rate less than it paid the striker before the strike is not a valid defense to an 8(a)(1) and (3) allegation based on refusal to reinstate the striker, unless (I) the employer first offers the job to the striker at the lower rate, William O. McKay Company Inc., 204 NLRB 388, 392 (1973), and (2) in addition makes a showing of overriding economic need to save money by that means, Northwest Oyster Farms, Inc., 173 NLRB 872, 875 (1968). I find merit to the allegation as set forth in General Counsel's complaint in paragraph 8(b) and I shall recommend that Morandini be made whole for wages lost from October 4 until he was offered reinstatement by Respondent. 9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of I The Laidlaw Corporation, 171 NLRB 1366, enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 8 See Little Rock Airmotive, Inc., 182 NLRB 666, 667, fn. 2 (1970), enfd. in pertinent part 455 F.2d 163 (C.A. 8, 1972); Laura E. Weber, d/b/a Weber Nursing Homes and d/b/a Pleasant View Rest Home, 194 NLRB 426, 431 (1971). 9 See American Machinery Corporation v. N.LR.B., 424 F.2d 1321 (C.A. 5, 1970), enfg. 174 NLRB 130(1969). 730 CROSSROADS CHEVROLET, INC. Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent is engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent unlawfully failed to recall or reinstate Richard Hampton on September 13, 1976, and I shall recommend that Respondent make him whole for wages lost from that date until he was offered reinstatement in his former classifica- tion of brake and front-end alignment mechanic. Respon- dent unlawfully failed to recall or reinstate Ivan Morandini on October 4 at which time a vacancy existed in the job classification held by Morandini prior to his participation in an economic strike and I shall recommend that he be made whole for the wages lost between October 4 and the date on which he was offered reinstatement. Backpay for both Hampton and Morandini shall be less any interim earnings during such period and shall be calculated on the basis of calendar quarters in accordance with the method described in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has violated Section 8(a)(1) and (3) of the Act by failing to recall and reinstate employees Hampton and Morandini when vacancies existed in their former or substantially equivalent positions following the cessation of a strike and their respective unconditional offers to return to work because of their respective protected and concerted activity on behalf of a union. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- iO 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. 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. ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 10 The Respondent, Crossroads Chevrolet, Inc., North Hollywood, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to recall and reinstate economic strikers following an unconditional offer to return to work to their same or substantially equivalent positions if and when a vacancy exists in said position. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Make employees Richard Hampton and Ivan Moran- dini whole for any loss of earnings they may have suffered by reason of Respondent's unlawful discrimination and failure to recall and reinstate each of them in the manner set forth in that section of this Decision entitled "The Remedy." (b) 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. (c) Post at its place of business in North Hollywood, California, copies of the attached notice marked "Appen- dix."" Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by it immedi- ately 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. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 11 In the event that this 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." 731