B. C. Hawk Chevrolet, Inc.

B. C. HAWK CHEVROLET B. C. Hawk Chevrolet, Inc. and Local Lodge 289, In- ternational Association of Machinists and Aero- space Workers , AFL-CIO. Case 19-CA-7974 October 19, 1976 DECISION AND ORDER - BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 9, 1976, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief to Respondent's 'exceptions and a motion`to strike Respondent's brief in "whole or in part." ' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of Respondent's exceptions and the briefs of the parties and has decided to af- firm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, B. C. Hawk Chevrolet, Inc., Issaquah, Washington, its officers, agents, suc- cessors, 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 sup- port of exceptions stricken on grounds that the brief does not conform to Sec. 102.46(1) of the Board's Rules and Regulations, Series 8, as amended We hereby deny the motion as we find that the brief fully complies with the Board's Rules and Regulations. General Counsel's motion to strike the documents of an evidentiary na- ture appended to Respondent's brief is granted and no reliance is placed on them since they are outside the record as that term is defined in Sec 102.45(b) of 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 over- rule 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 are incorrect Standard Dry Wall Products, Inc, 91 NLRB, 544 (1950), enfd 188 F.2d 362 (CA 3, I951) We have carefully examined the record and find no basis for reversing his findings Respondent also excepted to the Administrative Law Judge's reliance on the affidavit of Service Manager Wayne Barton which Respondent's con- tends was not taken in compliance with Sec 10056.5 of the NLRB Field Manual Since that publication confers no legal rights on Respondent, Re- spondent could.not have been legally prejudiced regardless of the purported noncoippliance.: Cedar Corp d/b/a West Side Manor Nursing Home, 203 NLRB 100, In. 1 (1973) DECISION STATEMENT OF THE CASE 527 RICHARD J. BOYCE, Administrative Law Judge; This case was heard before me in Seattle, Washington, on December 16, 1975. The charge was filed on September 8, 1975, by Local Lodge 289, International Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union). The complaint issued on October 10, 1975, was amended during the hearing, and alleges violations by B. C. Hawk Chevrolet, Inc. (herein called Respondent) of Section 8(a)(5) and (1) of the National Labor Relations, Act. The parties were given opportunity at the hearing to in- troduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs were -filed for the General Counsel and Respondent.' 1. ISSUES The issues are whether Respondent: 1. By its failure to honor a bargaining contract it previ- ously had signed and its coincident refusal to recognize the Union as the representative of certain of its employees, violated Section 8(a)(5) of the Act. 2. By conducting an election among its employees to determine their support of the Union, violated Section 8(a)(1). 3. By its service manager, Wayne Barton, promised im- proved benefits to its employees to discourage their sup- port of the Union, violating Section 8(a)(1). H. JURISDICTION Respondent is a Washington corporation engaged in the city of Issaquah in the operation of an automobile dealer- ship. Its annual gross income exceeds $50,000, and it annu- ally purchases and causes to be delivered into Washington directly from outisde the State goods of a value exceeding $50,000. Respondent is an employer engaged in and affect- ing commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. LABOR ORGANIZATION The Union is_a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent took over the business in question as of Au- gust 1, 1974, from Charlie Brown Chevrolet. The Union for i Attached to Respondent's brief are various documents of an evidentiary character. The General Counsel's motion that they be stricken; along with all references to them in Respondent's brief, is granted 226 NLRB No. 82 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several years had had a bargaining relationship with Char- lie Brown concerning its shop employees. Their last con- tract before Respondent's takeover expired May 1, 1974. In September 1974, Larry Dankel, an assistant business representative for the Union, told Jay Owens, Respon- dent's general manager, of the Union's bargaining relation- ship with Charlie Brown and of its desire to continue the relationship with Respondent. Dankel stated that the Union believed it "had the bargaining rights" as a carry- over from the Charlie Brown situation, adding that, since two of Respondent's three shop employees-Jim Man- smith and Rod Luther-were members, the Union had ma- jority support2 Owens declared that Respondent "needed more time" to get its "feet on the ground" before becoming "involved" with a union. With that, Dankel supplied Ow- ens with two copies of the Union's standard contract for such operations, and they agreed to meet again. Followup meetings were held November 11 and 12. At the November 12 meeting, Owens signed a contract. It con- formed with the standard contract in all respects,3 except that its effective date was deferred for almost 6 months. Thus, article XVII, captioned "Duration," was revised to state: This agreement is effective May 1, 1975, and shall re- main in effect until May 1, 1977 ... . And article XI, captioned "Health and Welfare," was made to state: Effective May 1, 1975, based on April hours, each em- ployer party hereto shall pay each month into the Au- tomotive Machinists' Health and Welfare Trust Fund The delayed effective date was a concession to Owens' insistence that Respondent be given 6 months' "lead time" before assuming the obligations of a union contract. The document nowhere contains conditions upon its becoming effective. Owens testified, however, that he extracted an oral agreement from Dankel before signing that it would not go into effect should the employees meanwhile decide against union representation. Dankel, on rebuttal, denied any such contingency. Dankel is credited. Not only was he the more impressively conscientious of the two, but it would have been pointless for them to sign the document with so fundamental a contingency outstanding. It would be implausible, moreover, for Owens, a person of obvious business intelligence and experience, to have left such a vital "detail" to the hazards of my-word-against-yours proof .4 2 Counsel stipulated and it is found that Luther at all times was a supervi- sor within the Act 3 Counsel stipulated and it is found that the unit described in the contract meets the standards of appropriateness set forth in Sec. 9(b) of the Act The description includes "automotive machinists, body and fendermen, painters, welders, electricians, auto radio, instrument and air-conditioning repairmen, service salesmen, towermen, radiator repairmen, and apprentices engaged in all forms of auto repair work," by implication excluding the standard exclu- sions 4 This credibility resolution does not ignore that Wayne Barton, Respon- dent's service manager, testfid being present and that the oral contingency was agreed upon Barton conveyed the impression in much of his testimony Although Dankel "stopped by" Respondent's shop sev- eral times in the ensuing months, collecting dues from Mansmith and Luther-and exchanging "pleasantries" with Owens, his next "official contact" with Owens was in mid- May 1975. Having learned from the health and welfare trust fund that Respondent had not made its May 1 pay- ment in accordance with the contract, Dankel raised the matter with Owens. Owens replied' that Respondent had conducted an election among the unit employees, the Union losing. Owens testified that he referred to their oral agreement, Dankel conceding that the contract was subject to that contingency. Dankel, again on rebuttal, testified otherwise-that he argued that they had a binding legal contract. Dankel is credited for the reasons in the,preced- ing paragraph. The election of which Owens spoke took place in Re- spondent's shop, after work, on April 9, 1975. A few days before, Wayne Barton, Respondent's service manager, had directed Barry Brook, shop foreman, to arrange a meeting for that purpose. Brook presided at the meeting. Mary Griffin, a receptionist, also attended, in a note-taking ca- pacity, as did five shop employees.5 Barton, too, was pres- ent for a time, leaving before the vote was taken. He testi- fied: I didn't want to make it-make it feel for some of the employees that I was going to exert some pressure by being there. Brook opened the meeting by presenting management's ar- guments against representation. Rod Luther, despite being a supervisor, replied in favor of the Union. Barton re- mained silent. The speeches over, Brook called for a voice vote. There were no assurances against reprisals. The tally was five to one against the Union. On dates unestablished between November 1974 and the election, Respondent initiated its own medical, dental, re- tirement, and bonus incentive plans. In the words of Bar- ton: "We wanted to demonstrate that we could do as well as, or better than, the Union." Barton continued that, "at times," he told the employees that this was Respondent's aim.' Brook testified of Barton's telling him on several oc- casions in the month or so before the election, at a nearby tavern after work, that Respondent's "different programs" were "as good as or better than the Union's," and that "there might have been at one time a couple of mechanics" present. of being more concerned with the outcome of the case than with the literal truth Testimony of the oral contingency was'received over the General Counsel's parol evidence objection, the Administrative Law Judge stating on the record that he would "worry later about the weight to give it." While the validity of the objection is not without doubt [see 9 Wigmore, Evidence § 2410 and 2435 (3d ed , 1940)], the credibility resolutions herein moot the issue 5 Dankel admittedly made no effort to enlist as members the new employ- ees hired by Respondent through expansion and turnover 6 These words attributed to Barton are from a sworn affidavit given to the Board during the investigation of the charge. Barton's testimony when con- fronted with the affidavit, that the quoted material is "out of context," is not believed in view of his failure to testify convincingly of another context and the demeanor considerations mentioned in fn. 4, supra B. C. HAWK CHEVROLET 529 B. Analysis The Refusal to Implement and Recognize: The primary thrust of the General Counsel's case is that Respondent violated Section 8(a)(5) by its refusal to honor the contract Owens had signed and its concomitant refusal to recognize the Union. It is settled that "recognition establishes a pre- sumption of majority status." 7 It also is settled that: A contract, lawful on its face, raises a presumption that the contracting union was the majority represen- tative at the time the contract was executed, during the life of the contract, and thereafter.8 Respondent argues in effect that the presumptions just stated do not obtain in the present case, or have been over- come, because: 1. The Union at no time had a valid majority. 2. The contract and, by implication, recognition were subject to an oral condition-majority employee accep- tance of the Union before the contract's effective date- which was not met. It is concluded that Respondent's arguments are without merit, and that it did violate Section 8(a)(5) as alleged. In the first place, as previously found, the oral condition to which Respondent adverts did not in fact exist. In the sec- ond place, the matter of the Union's majority status not having been raised within 6 months of the events giving rise to its presumptive validity-namely, the November 12, 1974, recognition and signing-Respondent now is fore- closed from litigating the Union's initial majority. Ever since the Supreme Court's Bryan Manufacturing Co. deci- sion,9 the Board has "held that Section 10(b) is applicable to a refusal-to-bargain defense that the bargaining relation- ship was unlawfully established." 10 Finally, assuming for argument the inapplicability of the Board's recognition- and contract-bar rules in the circum- stances,11 nothing happened after November 12, 1974- and, specifically, within the 10(b) period-to upset the pre- sumption of ongoing majority status. True, the unit experi- enced growth and turnover, but "new employees are presumed to support the union in the same ratio as those whom they have replaced." 12 And true, the employees vot- ed against the Union in the April 9 election conducted by James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB 507 (1975) 8 Walter E Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852 (1975). 9 Local Lodge No 1424, International Association of Machinists, AFL-CIO [Bran Manufacturing Company] v. N.L.R B, 362 U.S. 411 (1960). 1 North Bros. Ford, Inc, 220 NLRB 1021 (1975). See also Paper Products and Miscellaneous Chauffeurs, Warehousemen and Helpers, Local 27, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Combined Container Industries), 209 NLRB 883 (1974), Barrington Plaza and Tragniew, Inc, 185 NLRB 962, 964 (1970). n It is arguable, the recognition- and contract-bar rules notwithstanding, that a question concerning representation could have been raised during the 6 months between contract execution and effective date The Board stated in Southern Moldings, Inc, 219 NLRB 119 (1975), that the recognition-bar rule of Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), "does not apply where . an alleged successor-employer has continued to accept an in- cumbent union as the representative of its employees " And, in Sentinel Protective Agency, Inc., 211 NLRB 552 (1974), the Board declined to "reach or pass upon the contention that the contract is not a bar" during a 17-day period between execution and effective date. 12 Cutten Supermarket, supra, fn. 7. Respondent. As is concluded below, however, the election as held violated Section 8(a)(1), so is of no value in reveal- ing employee sentiment.l3 The Allegedly Unlawful Election: The General Counsel next contends that the election of April 9, 1975, on which Respondent relied in refusing to recognize the Union and honor the contract, violated Section 8(a)(1). It is concluded, as indicated earlier, that this contention is correct. The Board announced in Struksnes Construction Co., Inc.: Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(l) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this pur- pose is communicated to the employees, (3) assur- ances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor 4practices or otherwise created a coercive atmosphere.) The election in question was in large disregard of these safeguards. While its purpose was to determine employee support of the union, the union's claim to recognition had long since been settled as a matter of law. But even if it had not-i.e., even if a question concerning representation were pending-there still were no assurances against reprisals; the ballot was not secret; and, as seen below, Respondent otherwise had created a "coercive atmosphere" by its mis- conduct. - Respondent seems to argue the existence of "unusual circumstances" militating against the strict application of the Struksnes doctrine, noting that the only supervisor present during the actual vote, Rod Luther, had spoken beforehand in favor of the Union. Although the Board does not insist upon a mechanical adherence to the Struk- snes criteria regardless of surrounding circumstances," the present ones were not such as to warrant a departure from the general rule. The election and the meeting preceding were presided over by Shop Foreman Brook, who spoke management's piece and who, although not a statutory su- pervisor, nonetheless was acting as an agent of manage- ment, as was receptionist Mary Griffin in her note-taking role. And Service Manager Barton, who recognized the "pressure" that his presence might engender, attended the meeting, leaving only before the vote proper. It thus was hardly a neutral or innocuous situation from the rank-and- file vantage point. The Alleged Unlawful Promises: The General Counsel al- leges, finally, that Respondent, by Service Manager Bar- ton, promised improved benefits to the employees to dis- courage their support of the Union, further violating Section 8(a)(1). As earlier found, Respondent initiated its own medical, dental, retirement, and bonus incentive plans on unestabl- ished dates between November 1974 and the election. Bar- 13 An employer seeking to assert a union's lack of majority " must not have engaged in any conduct tending to encourage employee disaffection from the union." Id 14 165 NLRB 1062, 1063 (1967). 15 Bushnell's Kitchens, Inc., 222 NLRB 110 (1976). 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton admitted that the purpose was to show the employees how well off they would be without the Union, and that-he "at times" told the employees of this purpose. Brook veri- fied Barton',s talking to him in this vein in the month or so before the `election, and that "a couple of mechanics" rnight.have been present. It is concluded that, although Barton's comments dust described were not, strictly speaking, "promises" as alleged in the complaint, they carried the same purport, comparing as they did the Union's benefit-producing abilities withRe- spondent's acting alone, and were intended to and likely did undernune employee support of the Union. Such of them as occurred after the March 8 onset of the 10(b) pen- od-and some if not most plainly did-therefore restrained or coerced in violation of Section 8(a)(1).16 CONCLUSIONS OF LAW 1. By refusing to honor the contract signed by it and the Union on November 12, 1974, as found herein, and by refusing to recognize the Union as the bargaining represen- tative of its employees in the appropriate unit, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 2. By-coercively polling its employees concerning their union sympathies, as found herein, and by stating to em- ployees that improved benefits were instituted to show them that they could do as well or better without union representation, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Respondent shall be ordered to cease and desist from its misconduct. In addition, having unlawfully failed to honor its contract, Respondent shall be ordered to comply retro- actively to May 1, 1975, with the terms of that contract, including but not limited to the provisions relating to wag- es and other economic benefits, and to make whole its em- ployees, including any no longer on the payroll, for any losses suffered by reason of Respondent's failure to give effect to- the contract, with appropriate interest. Nothing herein shall be construed as requiring Respon- dent to revert to wage "and other benefit levels below those presently in force. E.g., Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969). ORDER17 propriate unit with respect to their terms and conditions of employment. (c) Coercively polling its employees concerning their union sympathies. (d) Informing,its employees that improved,benefits were instituted to show them that they could do-as well or better without union representation. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Implement retroactively to May 1, 1975, the bargain- ing'contract reached between it and the Union on Novem- ber 12, 1974, and make its employees whole in the manner prescribed above in the section entitled "Remedy." (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay- roll - records,- social security payments records, timecards, personnel records and reports, and all other records neces- sary for determination of the- amounts owing under the terms of this Order. (c) Post at its place of business copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by an authorized representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where'notices'to employees customarily are post- ed. Reasonable steps shall betaken to ensure that said no- tices are not altered, defaced, or covered by other material. (d) Notify the Regional-Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 16 Cf N L R B v Exchange Parts Company, 375 U S 405 (1964) 17 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. 18 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency,of -the United States Government Respondent, B., C. Hawk Chevrolet, Inc., Issaquah, Washington, its officers, agents, successors, and assigns, shall: - 1. Cease and desist from: (a) Refusing to honor the collective-bargaining contract reached between it and the Union on November 12, 1974. (b) Refusing to recognize the Union as the exclusive col- lective-bargaining representative of its employees in the ap- The hearing held in Seattle, Washington, on December 16, 1975,- in which we participated and had a chance to give evidence, resulted in a decision that we had committed cer- tain unfair labor' practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, and this no- tice is posted pursuant to that decision. WE WILL NOT refuse to recognize Local Lodge 289, International Association of Machinists and Aero- B. C. HAWK CHEVROLET space Workers, AFL-CIO, as the exclusive collective- bargaining representative of our employees in the ap- propriate unit with respect to their terms and condi- tions of employment. The appropriate unit is: All automotive machinists; body and fendermen; painters;, welders, electricians; auto radio, instru- ment, and air-conditioning repairmen; service sales- men, towermen, radiator repairmen, and appren- tices engaged in all forms of auto repair work employed at our facility in Issaquah, Washington, excluding office clerical employees, professional employees,-guards, and supervisors as defined in the Act. 531 WE WILL NOT coercively poll our employees concern- ing their union sympathies. WE WILL NOT inform our employees that improved benefits were instituted to show them that they could do as well or better without union representation. WE WILL implement retroactively to May 1, 1975, the bargaining contract reached between us and the Union on November 12, 1974, and make our employ- ees whole for losses suffered because of our past refus- al to give effect to that contract. Nothing in this notice is to be construed as requiring us to revert to wage and other benefit levels below those presently in force. B. C. HAWK CHEVROLET, INC.