Goldsmith-Louison Cadillac Corp.

520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Goldsmith-Louison Cadillac Corp., Goldsmith Motors Corp., a single employer and Local Union No. 868, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Case 29-CA-13885 August 22, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 22, 1990, Administrative Law Judge Raymond P Green issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions 1 and to adopt the recommended Order 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Goldsmith- Lomson Cadillac Corp, 316 North Franklin Street, Hempstead, New York, and Goldsmith Motors, 138-49 Hillside Avenue, Jamaica, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order 1 We find no merit in the Respondent's contention that the judge's de- cision contradicts the Regional Director's prior determination that the employees at the Respondents' Hempstead facility constituted a separate appropriate bargaining unit and not an accretion to the unit at the Re- spondents' Jamaica facility See Case 29-UC-358 There is nothing incon- sistent in the judge's conclusion that the Union, having subsequently ob- tained the support of a majority of the employees in the Hempstead unit found by the Regional Director to be an appropriate unit, is entitled to be recognized by the Respondents as the representative of those employees See The Arundel Corp, 252 NLRB 397, 399 fn 7 (1980) 2 In the absence of exceptions to the finding of no violation in the Re- spondent's failure to extend the Jamaica contract to the Hempstead em- ployees, we decline to find that violation or to order the Respondents to entend the Jamaica contract to the Hempstead employees April M Wexler, Esq , for the General Counsel Perry Heiclecker Esq (Marshall Miller Associates), for the Respondent Irving T Bush, Esq , for the Union DECISION STATEMENT OF THE CASE RAYMOND P GREEN, Administrative Law Judge This case was tried in Brooklyn, New York, on January 22, 1990 The charge was filed on January 19, 1989, and was 299 NLRB No 74 amended on February 22, 1989 1 The complaint issued on February 28, 1989, and alleged m substance that the Employer refused to recognize and bargain with the Union at a newly acquired facility after the Union had obtained majority status among the employees On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS OF FACT I JURISDICTION The Respondents admit and I fmd that they are em- ployers engaged in commerce withm the meaning of Section 2(2), (6), and (7) of the Act It also is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES Goldsmith Motors Corp is an automobile dealership located in Jamaica, New York For some time the seven salesmen of this Company have been represented for col- lective-bargaining purposes by the Union The most recent labor contract covering these employees is effec- tive from February 1, 1987, through January 31, 1990 This contract has what is generally termed an "after ac- quired" clause which reads This Agreement shall cover, in addition to premises presently occupied, all future locations within the jurisdiction of the Union which the Employer may purchase, lease or otherwise operate for the pur- poses of the sale of new and used cars during the term of this Agreement, mcludmg all locations op- erated as a result of expansion or change, to the extent permitted and recognized by the National Labor Relations Board In or about November 1986, the two shareholders of Goldsmith Motors Corp (Joel Goldsmith and Anne S Louisan) formed Goldsmith-Louison Cadillac Corp (They each own 50 percent of the new corporation )2 Thereafter, in February 1988 this company commenced operating a Cadillac dealership in Hempstead, New York This facility is about 15 to 20 miles from the Ja- maica facility of Goldsmith Motors and there does not appear to be any interchange of nonmanagerial employ- ees from one to the other In or about September 1988 the Union demanded rec- ognition as the bargaining agent for the salesmen of Goldsmith-Lomson contending that the new facility con- stituted an "accretion" to the existing contractual bar- gaining unit in Jamaica, New York In response, the Employer, on September 9, 1988, filed a unit clarification petition in 29-UC-358 On January 5, 1989, the Regional Director of Region 29 issued a deci- 1 All dates are in 1989 unless otherwise indicated 2 At Goldsmith Motors, Joel Goldsmith is the president and Anne Loulson is the secretary-treasurer At Goldsmith-Lowson their positions are reversed At both locations Goldsmith and Loulson are responsible for formulating labor relations and personnel policies GOLDSMITH-LOIJISON CADILLAC CORP 521 sion in the UC case, concluding that despite the com- monalty of ownership, the unit of employees at the Hempstead facility constituted a separate appropriate bargaining unit and therefore was not an accretion to the bargaining unit covered by the collective-bargaining agreement between the Union and Goldsmith Motors That decision was thereafter affirmed by the Board on April 14, 1989 In the meantime on September 26, 1988, the Union filed an unfair labor practice charge against Goldsmith Motors and Goldsmith-Louison alleging that their failure to recognize the Union as the representative of the Hempstead sales employees was a violation of Section 8(a)(5) of the Act Since that charge (in Case 29-CA- 13705) is not part of the present proceedings, I infer that the Regional Director concluded it had no merit because the Union, at the time, had no evidence of majority sup- port amongst the Hempstead employees In December 1988, Michael Vega, one of the salesmen at Goldsmith-Lomson, spoke to a union shop steward who was employed at another car dealership across the street As a consequence of that conversation, Vega signed a union membership card on December 22 and so- licited the other salesman to sign such cards on that same date In this regard, Vega testified that he handed out these cards to the other salesmen in the showroom He further testified that some of the employees signed the cards in his presence and that in other instances, the em- ployees handed their signed cards back to him either on December 22 or 23 Vega then delivered the cards to the Union The record indicates that at the time the cards were signed, there were six persons employed by Goldsmith- Louison as new-and used-car salesmen Of the six, five signed union cards The cards m question are single pur- pose authorization cards and no statements were made to the signers that the cards would only be used for the purpose of obtaining an NLRB election There also was no evidence to suggest that any coercion or other undue influence was used to obtain these cards 3 In pertinent part, the cards read I, the undersigned hereby apply for Admission to Membership in Local 868 of the International Brotherhood of Teamsters and voluntarily choose and designate it as my representative for purposes of collective bargaining hereby revoking any contrary designation If admitted to member- ship, I agree to abide by the Constitution of the International as well as the Local Constitution and By-Laws In short, the General Counsel has established by a pre- ponderance of the evidence that by December 23, 1989, 3 The employer in an attempt to challenge the authorization card of Eugene Ackerfeld produced two forms signed by Ackerfeld dunng his employment In reviewing these documents, particularly comparing the authorization card with the tax withholding form, I am not persuaded that the signatures are different Indeed, without pretending to any par- ticular expertise of handwntmg analysis, I would say that the signature on the union authorization card is the same as the signature on the with- holding form the Union represented a majority of the salesmen at Goldsmith-Louison By mailgram dated December 27 1988, the Union ad- vised Goldsmith-Lomson that a majority of the Hemp- stead sales employees had signed union cards It went on to request that the Employer "provide them with all the substantive working conditions provided in our current collective bargaining agreement" On January 4, 1989, the Union sent another mailgram to "Goldsmith Cadillac Hempstead" reading in part In response to our mailgram to you, we have been informed that you are applying the Jamaica lo- cation contract to your Hempstead location It is the customary and usual practice in situations such as this that any prior better conditions not in effect in Hempstead will continue Since we advised you that we have been desig- nated by a majority of the sales persons at the Hempstead location as their collective bargaining representative we at this time demand that none of the existing better conditions be changed without consultation with this organization On January 5, 1989, the Employer's counsel replied as follows Goldsmith-Louison Cadillac respectfully declines to recognize Local 868 I B T, or any other labor orga- nization, as the exclusive bargaining representative of the new and used car salesmen employed at the Hempstead facility In the event Local 868 wishes to pursue its claim for representation rights, It will have to do so using the accepted procedures of the National Labor Relations Board On January 11, 1989, the Employer's counsel sent an- other letter to the Union, responding to the two afore- mentioned mailgrams This read in pertinent part First, we do not recognize Local 868 as the col- lective bargaining representative of the salesmen at Goldsmith-Louison Cadillac's Hempstead facility This was made clear to you in a letter which was sent to you on January 5, 1989 which declined to grant your union recognition Goldsmith- Lowson still does not recognize Local 868 and, ac- cordingly, you have no legal right to discuss the substantive terms and conditions of employment of the salesmen with the company Second, we have never applied the substantive terms and conditions of Goldsmith Motors' collec- tive bargaining agreement for the salesmen at its Ja- maica facility to Goldsmith-Louison's salesmen at the Hempstead facility Your assertion that the Ja- maica contract is being applied at Hempstead is simply wrong On January 26, 1989, the Union sent the following letter to Joel Goldsmith in care of Goldsmith-Louison Cadillac Corp 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With respect to our former demand we have re- quested the National Labor Relations Board to in- vestigate the authenticity of the designation cards signed by your employees. If you would care to designate. some impartial person to examine the • cards, we will cooperate with the understanding that whatever the examination discloses will be held completely confidential except the statement that the cards are • or not authentic. The number and names of any cards will not be revealed—except that the person examining the cards may indicate that the number of signed cards represent a majori- ty of the employees. It is alleged in the complaint and conceded in the answer that since January 26, 1989, the Respondents have refused to recognize the Union as the bargaining representative of the sales employees employed by Gold- smith-Louison and have refused to consent to have the Union's majority status based on authorization cards au- thenticated by a third party. III. ANALYSIS . , . In my opinion, Kroger Co., 219 NLRB 388 (1975), is dispositive of this case. In Kroger the Board held that "additional store clauses," are not be valid insofar as a union asserts its right to represent employees of an addi- tional facility where the new facility would not consti- tute ' an "accretion" to an existing bargaining unit and where the union has not shown that it represents a ma- jority of the new facilities' employees. However, the Board also held that such clauses may properly be inter- preted to constitute a waiver of an employer's right to demand an election in circumstances where the union has obtained majority status in the new facility. As stated by the Board: As we have interpreted them, these clauses are contractual commitments by the Employer to forgo its right to resort to the use of the Board's election process in determining the Union's representation status in these new stores. To permit the Employer to claim the very right which it has forgone, per- haps in return for concessions in other areas, would violate the basic national labor policy requiring the Board to respect the integrity of collective-bargain- ing agreements. . .The Board has held that an em- ployer may agree in advance of a card count to rec- ognize a union on the basis of a card majority and we can perceive of no reason why it may not con- tract with the union to do so in advance of the time the union has commenced organization.4 The Union in the present case obtained in December 1989 authorization cards from a majority of the sales em- ployees at the Employer's new dealership. Also, the Em- ployer had agreed in advance to recognize the Union at any new facility to the extent permitted by the National Labor Relations Board. As this is interpreted to mean that the Employer agreed in advance to recognize the 4 See also Alpha Beta Co., 294 NLRB 228 (1989). Union if the Union obtained majority status at a new lo- cation, I conclude that the Union is entitled to recogni- tion as the bargaining representative of the employees in question.5 CONCLUSIONS OF LAW 1. Goldsmith Motors Corp. and Goldsmith-Louison Cadillac Corp. constitute a single employer which is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 868, an affiliate of the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. At all times material the Union has been the exclu- sive representative of certain employees of the Respond- ents in an unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to recognize the Union as the exclusive collective-bargaining representative of certain of Re- spondents' employees, the Respondents have refused to bargain in violation of Section 8(a)(1) and (5) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be or- dered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 6 ORDER The Respondents, Goldsmith Motors Corp., Hemp- stead, New York, and Goldsmith-Louison Cadillac Corp., Jamaica, New York, their officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Local Union No. 868, an affiliate of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive repre- sentative of employees in the unit found appropriate as set forth below: 6 In my opinion, the Respondent's reliance on Arundel Corp., 252 NLRB 397 (1980), is inapposite. In that case, the administrative law judge concluded that an after acquired clause could not be used to auto- matically accrete a separate unit of employees, against their wishes, into an existing bargaining unit even if they were employed by the same em- ployer. In that case, the charging party union did not in fact, represent the employees it sought to have included in the existing unit and the ad- ministrative law judge concluded that these employees could not be forced to become members of that union. (Indeed they had joined an- other union). Arundel is therefore distinguishable from the present case wherein the Union has obtained valid authorizations from a majority of the employees in question. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. GOLDSMITH-LOUISON CADILLAC CORP 523 All new and used car and truck salesmen and/or combination new and used car and truck salesmen of Respondents at their Hempstead, New York Cad- illac dealership, excludmg all other employees, guards and supervisors as defined in Section 2(11) of the Act (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request, bargain with the Union as the exclusive representative of the employees in the unit described above, concerning terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement (b) Post at its facility in Hempstead, New York, copies of the attached notice marked "Appendix " 7 Copies of the notice, on forms provided by the Regional Director for Region 29 after being signed by the Respondents' au- thorized representative, shall be posted by the Respond- ents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ents to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents have taken to comply 7 If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, Join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT refuse to recognize and bargain with Local Union No 868, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL—CIO as the exclusive rep- resentative of employees in the following appropnate collective-bargaining unit All new and used car and truck salesmen and/or combination new and used car and truck salesmen of Respondents at their Hempstead, New York Cad- illac dealership, excluding all other employees, guards and supervisors as defmed in Section 2(11) of the Act WE WILL NOT in any like or related manner mterfer with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, on request, bargain with the Union as the exclusive representative of the employees in the unit de- scribed above, concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement GOLDSMITH MOTORS CORP AND GOLD- SMITH-LOUISON CADILLAC CORP