Key Motors Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Key Motors Corp. and Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 25-CA- 8174 September 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 7, 1977, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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. 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 the Respondent, Key Motors Corp., Evansville, Indiana, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Evansville, Indiana, on February 10, 1977, pursuant to a charge filed on August 13, 1976,1 by Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein referred to as the Union), and a complaint issued on September 29. The complaint alleges that Key Motors Corp. (herein referred to as Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (herein referred to as the Act), by refusing to bargain collectively with the Union as the exclusive collective-bargaining All dates referred to are in 1976 unless otherwise stated. 2 Respondent's unopposed motion to correct the transcript is hereby granted. 3 The Charging Party did not submit a bnef. 232 NLRB No. 146 representative of the employees in the bargaining unit by canceling a scheduled bargaining meeting and withdrawing recognition from the Union as the exclusive collective- bargaining representative of those employees in the unit and by thereafter failing and refusing to meet and/or bargain with the Union, notwithstanding the Union was the designated representative of the employees and that Respondent had executed a Board settlement agreement requiring it to bargain with the Union. Respondent, in its answer filed on October 12, denies having violated the Act. Its asserted defenses for withdraw- ing recognition were that it had a good-faith doubt of the Union's majority status and that a reasonable time for bargaining had elapsed. The issues involved are whether Respondent, by with- drawing recognition from and refusing to recognize and bargain with the Union, violated Section 8(aX5) and (1) of the Act. Upon the entire record2 in this case and from my observations of the witnesses and after due consideration of the briefs filed by the General Counsel and Respon- dent,3 I hereby make the following: 4 FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent, an Indiana corporation with its principal office and place of business located at Evansville, Indiana, is engaged in the business of the retail sale, service, and distribution of automobiles and related products. During the 12-month period preceding September 29, 1976, a representative period, Respondent's gross volume of business exceeded $500,000 and it received goods valued in excess of $50,000 at its Evansville facility directly from States located outside the State of Indiana. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and the Bargaining Unit Respondent, with its principal office and place of business located at Evansville, Indiana, is engaged in the business of the retail sale, service, and distribution of automobiles and related products. Its president is D. Patrick O'Daniel. 5 Since about 1964, the Union has been the collective- bargaining representative of and has had successive collective-bargaining agreements with Respondent cover- ing the employees in the following bargaining unit: 4 Unless otherwise indicated, the findings are based on pleadings, admissions, stipulations, and undisputed evidence contained in the record which I credit. 5 President O'Daniel is a supervisor under the Act. 214 KEY MOTORS CORP. All mechanics, bodymen, and painters, and their apprentices, all used-car and predelivery mechanics, all partsmen and their apprentices, and all general labor- ers, including all greasemen, runners, porters, car- washers, and used-car lot men employed by Respon- dent at its facility, exclusive of all office clerical employees, all salesmen, all professional employees, guards, and all supervisors as defined in the Act. 6 The most recent collective-bargaining agreement be- tween the parties expired on April 30, 1975. Negotiations for a new agreement began about the latter part of March 1975 and continued through January 26, at which time approximately 35 issues still remained unresolved. On May 1, 1975, following an impasse in negotiations, Respondent implemented its final offer which was made to the Union on April 30, 1975, and rejected, and the employees thereafter worked without an agreement. Although both sides continued to present proposals, there was little, if any, change in their positions subsequent to Respondent's final offer. On June 17, 1975, the employees went out on strike. The Union filed a charge against Respondent in Case 25-CA-7651 on January 1, which was amended on January 23, and, on March 8, it filed another charge against Respondent in Case 25-CA-7651-2. On March 17 and April 14, the General Counsel issued complaints against Respondent in those cases alleging that Respondent violated Section 8(a)(1) and (3) of the Act7 by unlawfully interrogating its employees concerning the Union; suggested the employees file a petition to decertify the Union; ordered its employees to remain in Respon- dent's employ and vote against the Union in an upcoming Board election and threatened employees with unspecified reprisals if they refused; assisted the decertification efforts of employees; promised employees they would not be terminated if they refrained from becoming or remaining union members or assisting or supporting it or if they filed a petition to decertify the Union; offered and promised employees wage increases to refrain from becoming or remaining union members or assisting or supporting it or if they voted the Union out, or in order to induce them to do so; permitted antiunion employees to remain in Respon- dent's employment in order to permit them to vote in the Board election; discriminatorily discharged John Denham and denied him reinstatement to prevent him from voting in the Board election and because of his union and concerted activities; and that the strike was prolonged by Respondent's unfair labor practices. On May 14, the Regional Director for Region 25 approved an informal settlement agreement between Respondent and the Union 8 in Cases 25-CA-7651 and 25- CA-7651-2 which provided, inter alia, that Respondent would, upon request, bargain with the Union. Contempo- raneously with the execution of the Board's informal settlement agreement, Respondent and the Union entered into a settlement agreement between themselves providing, inter alia, that the Union would call off its strike against I The unit constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Sec. 9(b) of the Act. 7 There was no violation of Sec. 8(aX5) of the Act alleged. " The settlement agreement contained a nonadmission clause. Respondent; strikers making unconditional applications for reinstatement would be placed on a preferential hiring list and be recalled as positions became available; the decertification petition in Case 25-RD-455 would be handled in accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended; 9 they would enter into a stipulation for an entry of dismissal with prejudice of an action pending in the Vanderburgh superior court and execute mutual releases; they would execute the Board's informal settlement agreement in Cases 25-CA-7651 and 25-CA-7651-2; and that the parties would engage in bargaining for a collective-bargain- ing agreement. B. Respondent's Withdrawal of Recognition from the Union and the Refiusal To Bargain Following the execution of the settlement agreements, the Union, by letter dated May 20, requested Respondent for a meeting to begin negotiations for a collective- bargaining agreement. Respondent replied, by letter dated May 29, and suggested because of certain reasons that they schedule the meeting after the third week in June, which would also enable both parties to have time to study past events and to develop proposals. Thereafter, the parties subsequently reached a mutual agreement to meet on June 17 at the Federal Mediation and Conciliation Service office. The negotiation meeting was held on June 17 as scheduled. Acting as chief spokesmen were Attorney Arthur Rutkowski for Respondent and Attorney Gary Gerling for the Union.10 Both individuals had approved the settlement agreements discussed supra. Neither Re- spondent nor the Union submitted any proposals at this meeting although they did agree that all the items in dispute were either open or on the table. After the meeting opened, Gerling indicated while he was representing the Union, he did not know for how long since they could terminate him. Rutkowski then mentioned that in any further negotiations they would have to consider the permanent replacements, who basically comprised the entire work force, because they were adamant against belonging to or being represented by any union, particular- ly the Teamsters Union, because of picket line harassment. When Gerling later suggested the Union's obligation was to represent and negotiate for all the employees and questioned Respondent's legal obligation to represent them, Rutkowski's response was as an employer they had the obligation to their employees and would negotiate, taking into consideration what the employees wanted. Gerling, who had not previously participated in the negotiations and indicated later during the meeting he was not very familiar with contract negotiations, raised such questions as the status of the negotiations; when the last session was held; what Respondent was paying the employees; whether they had always paid them an hourly wage rate; and whether there was a pension plan in the old contract. Rutkowski responded to Gerling's questions by 9 A withdrawal request in Case 25-RD-455 was filed by Michael Andrews on May I I and contained an attached list of 18 names. '° The Union's chief spokesman up until May 1 I had been D. Kluemper. 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informing him the last negotiation meeting was held on January 26; they were paying employees based on Respondent's final offer implemented on April 30, 1975, and were then implementing the second year salaries; that the employees had originally been paid on a 50-50 plan about 1972; and that while the Teamsters pension plan was in the old contract, Respondent felt the NADA " plan they had proposed to the employees was better and they had made an allowance and would pay into the Teamsters plan for those employees retiring under the next contract. Rutkowski agreed, pursuant to Gerling's request, to furnish him with the actual NADA plan rather than a copy which Rutkowski indicated the Union already had. When Cecil Houchins, who was one of the employees listed on the preferential hiring list, entered the meeting late, Gerling brought him up to date on the meeting. Houchins, upon being asked by Gerling whether there was anything further that should be discussed, mentioned they had not been paid for their last year's vacations whereupon Rutkowski replied some employees were paid but others were not because they had not fulfilled a 60-percent work requirement because of the strike. The meeting, at which there was also some discussion regarding the settlement agreements and rehiring certain strikers, lasted from approximately 10 to 11:15 a.m., with the parties mutually agreeing to meet again at 2 p.m. on June 30 at the same place. Houchins also mentioned the only thing he knew about the meeting was through the grapevine, stating he had called the Union's office and he and other people could not find out anything about it. On June 28, President O'Daniel found a petition containing the names of 17 employees on his desk captioned "We the undersigned mechanics have decided to not have the union as our bargaining agent. This includes partsman & cleanup." The next day O'Daniel found another petition containing the names of five employees on his desk captioned "We the undersigned employees of Key Ford who work in either the body shop, mechanics, parts, or cleanup have decided to not have the union as our bargaining agent." Among this group of 22 names of employees on the petitions, the names of 17 of them were attached to the withdrawal request in Case 25-RC-455 and the remaining name attached to the withdrawal request was illegible. During the period June 28-30, Respondent actively employed 28 employees in the bargaining unit and the names of 9 other employees were included on the May 11 preferential hiring list resulting from the settlement agreements. President O'Daniel,' 2 after receiving the two petitions, consulted with Attorney Rutkowski who advised him, after the signatures on the petitions had been compared with employees' signatures on the W-4 withholding forms and appeard to O'Daniel to be identical,13 that based on the petitions a majority of the employees in the unit did not want the Union to represent them and that Respondent could be charged with an unfair labor practice for bargaining with a minority union and recommended that '1 NADA refers to "National Association of Automobile Dealers." 12 President O'Daniel had also participated in the settlement agreements discussed supra. Respondent withdraw recognition from the Union. Ac- cording to O'Daniel, his decision to withdraw recognition was based solely on the advice of counsel. On the evening of June 29, Attorney Rutkowski contacted Attorney Gerling by telephone and informed him Respondent was withdrawing recognition from the Union and they would no longer bargain and negotiate with the Union. On June 30, Attorney Rutkowski, accompanied by an associate, Attorney Frank Hahn, met with Attorney Gerling at the Federal Mediation and Conciliation Service office, at which time Rutkowski handed Gerling the following statement which he also read to him: THE COMPANY IS WITHDRAWING RECOGNITION FROM TEAMSTERS LOCAL NO. 215, AS WE HAVE OBJECTIVE FACTS WHICH SHOW THAT A MAJORITY OF OUR EMPLOYEES IN THE UNIT INVOLVED DO NOT WANT YOUR UNION TO REPRESENT THEM. THE COMPANY CANNOT BARGAIN WITH YOU AT THIS TIME, AS IT COULD BE AN UNFAIR LABOR PRACTICE AND ILLEGAL FOR US TO BARGAIN WITH YOU, NAMELY, A MINORITY UNION. C. Analysis and Conclusions The General Counsel contends that Respondent violated Section 8(a)( 1) and (5) of the Act by withdrawing recognition from and refusing to bargain collectively with the Union as the bargaining representative of the unit employees following the execution of the Board settlement agreement. Respondent denies having violated the Act and asserts its defenses for withdrawing recognition were because it had a good-faith doubt, based on petitions received from its employees, that the Union no longer represented the employees and, in addition, that a reasonable time for bargaining had elapsed. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, while Section 8(a)(5) of the Act prohibits an employer from refusing to bargain collectively with the representative of its employees. The law is well settled that where an employer enters into a settlement agreement requiring it to bargain with a union, the employer is obligated to continue bargaining for a reasonable time after the execution of the agreement without questioning the representative status of the union, even if the employer has a good-faith doubt as to such status. See Yellow Front Stores d/b/a Sel-Low Discount, 205 NLRB 449 (1973); Stant Lithograph, Inc., 131 NLRB 7 (1961), enfd. 297 F.2d 782 (C.A. D.C., 1961); and Poole Foundry and Machine Company, 95 NLRB 34 (1951), enfd. 192 F.2d 740 (C.A. 4), cert. denied 342. U.S. 954. The United States Court of Appeals for the Fourth Circuit, in enforcing the Board's decision in the Poole case, observed "If a settlement agreement is to have real force, it would seem that a reasonable time must be afforded in which a 13 None of the employees whose names appeared on the petitions were called as witnesses to identify their signatures. 216 KEY MOTORS CORP. status fixed by the agreement is to operate. Otherwise, settlement agreements might indeed have little practical effect as an amicable and judicious means to expeditious disposal of disputes arising under the terms of the Act." The findings supra establish that the Union has repre- sented Respondent's employees since about 1964 and has had successive collective-bargaining agreements covering them. Even though the last agreement had expired, a rebuttable presumption exists of its continuing majority status. See Bartenders, Hotel, Motel and Restaurant Employ- er Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974). Not only did Respondent fail to rebut this presumption but acknowl- edged through execution of the Board's settlement agree- ment its obligation to bargain with the Union and it continued recognizing the Union up until June 29. The findings supra further establish that after Respon- dent had executed an informal settlement agreement approved by the Board on May 14, disposing of the outstanding charges and complaints against it and notwith- standing that it was required by the settlement agreement to bargain with the Union, Respondent, after only one negotiation meeting, withdrew recognition from and refused to bargain with the Union about June 29 on the grounds it had a good-faith doubt of the Union's majority status because of two petitions it had received from a majority of the employees indicating they no longer wanted to be represented by the Union. Applying those legal principles enumerated supra relat- ing to the effect of settlement agreements to the findings in the instant case, I am persuaded and find that Respondent refused to bargain with the Union for a reasonable time in which to conclude a collective-bargaining agreement after the execution of the Board's settlement agreement and thereby violated Section 8(a)(5) and (1) of the Act. In rejecting Respondent's defenses, Respondent could not properly question the Union's majority status at that time because of the settlement agreement nor can it reasonably be argued that holding only one negotiation meeting lasting about an hour in which neither side presented any proposals between the date of the execution of the settlement agreement and the withdrawal of recognition constitutes a "reasonable time," especially when the parties had arranged for the next negotiation meeting. Respon- dent's contention, contrary to the General Counsel's position, that the holding in the Poole case is inapplicable because Respondent had never been charged with a refusal to bargain in violation of Section 8(a)(5) of the Act is not persuasive since such argument tends to ignore the very terms of the Board's settlement agreement which Respon- dent entered into whereby it agreed to bargain with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, found to constitute unfair labor practices, occurring in connection with the operations of Respondent, de- scribed 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 thereof. CONCLUSIONS OF LAW I. Key Motors Corp. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All mechanics, bodymen, and painters, and their apprentices; all used-car and predelivery mechanics, all partsmen and their apprentices; and all general laborers, including all greasemen, runners, porters, car-washers and used-car lot men employed by Respondent at its facility, exclusive of all office clerical employees, all salesmen, all professional employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been and is now the exclusive collective-bargaining representative of the employees in the aforesaid appropriate unit for the purpose of collective-bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (I) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy Respondent's unlawful withdrawal of recog- nition from and refusal to bargain with the Union, I shall recommend that Respondent recognize the Union and, upon request, bargain collectively with the Union, as the exclusive bargaining representative of all the employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a signed agree- ment. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 14 The Respondent, Key Motors Corp., Evansville, Indiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to recognize and bargain collectively with Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit concerning wages, hours, and other terms and conditions of employment: All mechanics, bodymen, and painters, and their apprentices; all used-car and predelivery mechanics, all partsmen, and their apprentices; and all general laborers, including all greasemen, runners, porters, car- washers, and used-car lot men employed by Respon- dent at its facility, exclusive of all office clerical employees, all salesmen, all professional employees, guards, and all supervisors as defined in the Act. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in the aforesaid appropriate unit with respect to wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody the terms of each understand- ing in a written, signed agreement. (b) Post at its facility located at Evansville, Indiana, copies of the attached notice marked "Appendix." 1 Copies of said notices, on forms furnished by the Regional Director for Region 25, shall, after being duly signed by Respondent's authorized representative; be posted 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. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. lo 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. s1 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." APPENDIX NoXncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8(aX3) of the National Labor Relations Act, as amended. WE WILL recognize and, upon request, bargain with Local 215, International Brotherhood of Teamsters, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All mechanics, bodymen, and painters, and their apprentices; all used-car and predelivery mechan- ics, all partsmen, and their apprentices; and all general laborers, including all greasemen, run- ners, porters, car-washers, and used-car lot men employed by Respondent at its facility, exclusive of all office clerical employees, all salesmen, all professional employees, guards, and all supervi- sors as defined in the Act. KEY MOTORS CORP. 218