Automotive Salesmen's Association

National Labor Relations Board - Board Decisions

Jul 23, 1970

184 N.L.R.B. 608 (N.L.R.B. 1970)

608 DECISIONS OF NATIONAL
Automotive Salesmen 's Association (A.S.A.) Af-
filiated with SIUNA, AFL-CIO (Spitler-Demmer,
Inc.) and Conrad W . Kreger , on behalf of Spitler-
Demmer, Inc. Case 7-CB-1949
July 23, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH
AND BROWN
Upon charges duly filed on April 18 , 1969, by
Conrad W. Kreger , acting on behalf of Spitler-
Demmer , Inc., the General Counsel of the National
Labor Relations Board , by the Regional Director
for Region 7, issued a complaint dated October 30,
1969, against Automotive Salesmen 's Association
(A.S.A.) Affiliated with SIUNA, AFL-CIO,
hereinafter referred to as Respondent , alleging that
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended . Copies of
the charge , complaint , and notice of hearing before
a Trial Examiner were duly served on Respondent
and the Charging Party.
With respect to the unfair labor practices, the
complaint alleges that Respondent fined Herbert
Anderson , James Fahnestock , Clyde Hale, Harold
Hannon , Robert Walewski , and Karl Demmer, em-
ployees of Spitler-Demmer , Inc., in part , because
they jointly and severally resorted to the processes
of the Board by filing a decertification petition and
participated in the processes of the Board by sup-
porting said petition and casting ballots against
Respondent in the election conducted pursuant to
said petition. The complaint further alleges that
Robert Walewski was fined , in part , because he
participated in the unfair labor practice processes
of the Board by giving testimony against Respon-
dent in Case 7-CB-1761.'
The Respondent 's answer , dated November 3,
1969, admits certain jurisdictional and factual al-
legations of the complaint-denying the relevance
of certain of the factual allegations-but denies the
commission of any unfair labor practices.
On December 4, 1969 , Respondent, the Charging
Party, and counsel for the General Counsel entered
into a stipulation and jointly moved to transfer this
proceeding directly to the Board for findings of
fact, conclusions of law , and Decision and Order by
I The complaint further alleged that the fines violated Sec 8(b)( I )(A)
because they are unreasonable and excessive in amount In view of our
disposition of the other issues, we do not pass on this issue
LABOR RELATIONS BOARD
the Board . The parties waived a hearing before a
Trial Examiner , the issuance of a Trial Examiner's
Decision , the filing of exceptions with the Board,
and oral argument before the Board . The parties
agreed that the stipulation , the charge , complaint
and answer , and Respondent 's constitution con-
stitute the entire record in this case.
On January 7, 1970, the Board granted the
parties ' motion to transfer the case to the Board.
Briefs were thereafter filed by Respondent, the
Charging Party , and the General Counsel.
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
powers in connection with this case to a three-
member panel.
Upon the basis of the parties' stipulation, the
briefs, and the entire record in this case, the Board
makes the following:
FINDINGS OF FACT
1. COMMERCE
The charge in this case was filed on behalf of Spit-
ler-Demmer, Inc., alleging that certain of its em-
ployees were fined by the Respondent in violation
of Section 8(b)(I )(A) of the Act.
At all times material herein, Spitler-Demmer,
Inc., a Michigan corporation, has maintained its
only office and place of business at 35540 Michigan
Avenue, Wayne, Michigan. Spitler-Demmer, Inc.,
is, and has been at all times material herein, en-
gaged in the retail sale, distribution, and service of
new and used automobiles and trucks as a dealer
franchised by the Ford Motor Company. During the
year ending December 31, 1968, which period is
representative of its operations during all times
material herein, Spitler-Demmer, Inc., had a gross
volume of business from the sale of new and used
automobiles and trucks and related servicing
thereof in excess of $500,000. During the same
period, Spitler-Demmer, Inc., purchased and
caused to be transported from points outside the
State of Michigan directly to its place of business in
Wayne, Michigan, automobiles, trucks, automotive
parts, and other goods and materials valued in ex-
cess of $50,000.
On the basis of the foregoing facts, it is clear that
Spitler-Demmer, Inc., is now and has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
184 NLRB No. 64
SPITLER- DEMMER , INC. 609
11. LABOR ORGANIZATION
Respondent is and has been at all times material
herein a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
At all times material herein the alleged dis-
criminatees (Herbert Anderson, Karl Demmer,
James Fahnestock, Clyde Hale, Harold Hannon,
and Robert Walewski) were employees of the
Charging Party and from February 3, 1968, to
November 5, 1968,2 were members in good stand-
ing of the Respondent. On February 3 Respondent
called a strike3 against Spitler -Demmer which con-
tinued until November 20. During the course of the
strike the following employees crossed the picket
line and returned to work on the dates set forth
after their names.
Robert Walewski February 17
Clyde Hale March 1
James Fahnestock May 15
Herbert Anderson June 18
Harold Hannon June 19
Karl Demmer September 10
Article XI, section 1, of Respondent's constitution,
entitled "Expultions [sic] and Trial of Members,"
provides that a member shall be subject to
discipline "for crossing lawful picket lines, failing to
perform strike duty, or engaging in other conduct
inimical to the best interests of this Association;
provided charges are first filed against said
member." The section states that a penalty may be
assessed upon conviction but the nature of such
penalty is not specified,4 nor is it stated how the
penalty is to be enforced.
On May 6, the Charging Party herein filed an un-
fair labor practice charge against the Respondent
and on July 30 a complaint issued alleging viola-
tions of 8(b)(I)(A).5
On July 12, Clyde Hale filed a decertification
petition with the Board and on August 28 the
parties entered into a Stipulation for Certification
Upon Consent Election.
A hearing was held on October 7 and 8. During
the course of the hearing Robert Walewski testified
on behalf of the General Counsel with regard to
threats made to him by agents of Respondent fol-
lowing his abandonment of the strike.
The election was held on October 21. Ten ballots
were cast, all against the Respondent.
On October 22, the day following the decertifica-
tion election, Respondent sent each of the alleged
discriminatees a letter notifying them they were
being brought up on charges for crossing the As-
sociation's picket line and that a hearing would be
held on November 6. On November 5 each of the
employees resigned his membership in Respon-
dent.6 On November 6, Respondent's trial board
met to consider the charges against the six.
Trial Examiner Gregg issued his Decision in Case
7-CB-1761 on January 16, 1969, finding that
Respondent had violated Section 8(b)(1)(A) by,
inter alia , threatening Walewski that once the strike
was settled he would no longer be a salesman. On
January 28, 1969, the Regional Director notified
the Board that the Respondent was complying with
the Trial Examiner 's Recommended Order.
On January 20, 1969,7 the employees were
notified of the trial board's decision which found
them guilty as charged and fined them as follows:8
Amount Gross Earnings
Employee of Fine 1967 Feb-Nov. 1968
Herbert Anderson $2,000 $11,203 .67 $4,407.63 45%
James Fahnestock 3,000 10,446.10 5,945.48 697
Clyde Hale 4,000 11,697.58 9,832.01 40%
Harold Hannon 2,000 10,995 .67 6,146.70 33%
Robert Walewski 4,000 8,099.69 7,402.46 54%
Karl Demmer 100 10,520.69 2,640.43 5%
The employees appealed the decision of the trial
board to Respondent's appeal board by letters
dated January 28, 1969, but did not appear for a
hearing scheduled for February 14, 1969. On
March 6, 1969, the appeal board affirmed the trial
board's decision. Respondent's constitution pro-
vides that a further appeal maybe taken to the pres-
ident of Respondent who has authority only to af-
firm the decision of the appeal board or to decrease
the penalty . Such an appeal was not taken.
With respect to the filing of charges against
members, Respondent 's constitution provides that
z All dates are in 1968 unless specified otherwise
The complaint alleges the strike was an economic one The Respondent
claims it was an unfair labor practice strike No charges characterizing the
strike as an unfair labor practice strike were ever filed with the Board
4 Art XI11, Finances, states that "The income of the Association shall
consist of dues, fees , assessments and fines "
Case 7-CB-1761
Respondent 's answer denies the effectiveness of the resignations on the
ground that they were not effected pursuant to the Association's constitu-
Lion That constitution , however, does not refer to any specific procedure
for resignation of a member
' Respondent 's constitution provides that the trial board "shall reach a
determination within three (3) working days after the close of testimony "
" In addition to the amount of the fines, the table includes the gross
earnings of the employees for the calendar year 1967 and the period of the
strike (February to November 1968), and the percentage of gross strike
period earnings which the fine represents
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charge must be in writing and signed by the
member making the charge . Charges are submitted
to the executive vice president who has the power
to determine whether the charges are worthy of tri-
al. The constitution also provides that the executive
vice president is an ex officio member of the trial
board , and he has responsibility for arguing on be-
half of the trial board 's decision when and if an ap-
peal is taken to the appeal board.
B. The Issue
The issue in this case is whether the employees
named above were fined by the Union solely for
crossing an authorized picket line as the October
22 letter from the Union charged or, in part,
because they resorted to the processes of the Board
by filing and supporting a decertification petition
and casting ballots against the Union in the election
directed on such petition , and, in the case of
Walewski , for giving testimony against Respondent
in an unfair labor practice proceeding.
C. Discussion
Respondent contends that the fines were levied
solely because of the members ' actions in crossing
the authorized picket line established by Respond-
ent in support of its strike against Spitler -Demmer,
Inc. The General Counsel argues , on the other
hand , that the timing of the disciplinary action
against these members when viewed in relationship
to the timing of their decertification activities and
the previous unfair labor practice proceedings war-
rants the inference that the fines were levied in
retaliation for the members ' participation in those
events . We agree with the General Counsel.
The Respondent 's letter notifying the members
that they were to be tried on the charge of crossing
the picket line was mailed to the employees on Oc-
tober 22 , 1968. On October 21, 1968 , a decertifica-
tion election had been held , and all 10 ballots cast,
including ballots of the 6 members , were cast
against the Union. This for all practical purposes
meant that the Union had not only lost its strike,
but its representative status as well. Thus, on the
first day following news of this event Respondent's
executive vice president determined that these six
members who had actively supported the decertifi-
cation activities should be brought to trial. This
' Respondent can hardly argue that the fines were applied evenhandedly
according to some formula related to earnings during the period of picket
line crossing , for the relevant data reveals no such formula, and Demmer
was fined only $100
10 Cf The American Bakery and Confectionery Workers' Local Union 300,
AFL-CIO ( National Biscuit Company ), 167 NLRB 596, enfd in pertinent
part 411 F 2d 1122 (C A 7)
timing gathers significance from the fact that
though some of the members involved had been
crossing Respondent 's picket line from as early as
February and March 1968, Respondent had taken
no disciplinary action against them not even
warned them that disciplinary action might be
taken . Moreover , although the record does not
reflect the date the charges were filed , the letter to
the members charges them with crossing the picket
line through October 22 , the date of the letter.
Whether one assumes from this that the charges
were first filed by some unnamed member on that
date, or that earlier filed charges were held by the
executive vice president until that date, it is a
justifiable inference that news of the loss of the
decertification election was a precipitating factor in
the initiation of the disciplinary proceedings.
Other factors also support the inference the
General Counsel urges us to draw . Thus , despite
constitutional provisions requiring the trial board to
issue its decision 3 working days after trial of the is-
sues ( the trial was on November 6) the trial board
did not render its decision until January 20, 1969,
76 days later . This was but 4 days after Trial Ex-
aminer Gregg issued his decision in the previous
unfair labor practice proceeding finding on the
basis of testimony of Walewski that Respondent
had unlawfully coerced and restrained Walewski in
the exercise of Section 7 rights . Finally , it is signifi-
cant that the larger fines were levied against Hale,
the member who filed the decertification petition,
and Walewski , the member who testified against
the Union.9
On the basis of the foregoing , we find that
Respondent 's motivation in fining Hale, Anderson,
Hannon , Demmer, and Fahnestock was rooted, in
part, in their having resorted to the election
processes of the Board and in their participation in
those processes , including casting ballots against
Respondent, to decertify Respondent as their
collective -bargaining representative , and that
Walewski 's fine was not only motivated in part, in
those same reasons, but, also , in part , for having
given damaging testimony against Respondent in a
prior unfair labor practice proceeding .'° We find
further , for reasons stated in the Blackhawk
Tanning decision , that by such conduct Respondent
restrained and coerced the above -named members
in the exercise of rights guaranteed by Section 7 of
the Act, and thereby violated Section 8(b)(1)(A)."
" International Molders' and Allied Workers Union, Local No 125,
AFL-CIO ( Blackhawk Tanning Co , Inc ), 178 NLRB 208 Chairman Miller
adopts the reasoning set forth in the opinion of Chairman McCulloch and
Member Zagora in Blackhawk Tanning for the conclusion that a fine levied
by a union against a member for filing or otherwise supporting a decertifi-
cation petition violates Sec 8(b)( 1)(A)
SPITLER- DEMMER , INC. 611
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth 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.
Upon the basis of the foregoing findings of fact,
and upon the entire record herein, the Board makes
the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. By fining Clyde Hale, James Fahnestock, Her-
bert Anderson, Harold Hannon, and Karl Demmer,
in part, for resorting to the election processes of the
Board and for their participation in those processes,
including the casting of ballots against the Respond-
ent, to decertify the Respondent as their collec-
tive-bargaining representative, and by fining Robert
Walewski, in part, for those reasons, and, in part,
for giving testimony against Respondent in an un-
fair labor practice proceeding held pursuant to Sec-
tion 10(c) of the Act, Respondent restrained and
coerced employees in the exercise of rights guaran-
teed by Section 7 of the Act in violation of the
provisions of Section 8(b)(1)(A) of the Act.
3. By engaging in the aforesaid conduct, Respon-
dent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices, we shall order it to cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the
Act.
To remedy the coercive and restraining effect of
the fines assessed against its members, Respondent
will be required to rescind the fines, to reimburse
any moneys collected pursuant to the fi es, to ex-
punge from its records all references to he fines,
and to notify the fined members and other mem-
bers of the rescission of such fines and of their right
to utilize the processes of the National Labor Rela-
tions Board in determing any question regarding
the continuing representative status of the Respond-
ent Union and to give testimony in Board proceed-
ings without their being fined for doing so, such
notices to be posted at Respondent's office and
hall, and at Spitler-Demmer, Inc.'s place of
business providing the latter is willing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby orders that the Respond-
ent, Automotive Salesmen 's Association (A.S.A.),
Affiliated with SIUNA, AFL-CIO, its officers,
agents , and representatives , shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the
exercise of their rights guaranteed in Section 7 of
the Act , by assessing fines against its members
because of their filing of a decertification petition
with the National Labor Relations Board, their par-
ticipation in the processes of the Board by support-
ing such 'a petition and by casting ballots against
Respondent in an election conducted pursuant to
such a petition , or because of their giving testimony
against Respondent in an unfair labor practice
proceeding conducted pursuant to Section 10(c) of
the Act.
(b) In any like or related manner restraining and
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Rescind the fines assessed against Clyde
Hale, James Fahnestock, Herbert Anderson , Harold
Hannon , Karl Demmer, and Robert Walewski, and
expunge from Respondent 's record all references to
the fines.
(b) Reimburse , or refund to, any employees
named in paragraph 2(a) of this Order , who have
paid all or any portion of the fines , the amount of
such payments together with interest at 6 percent
from the date of such payments.
(c) Post at its office and meeting hall and at the
Wayne premises of Spitler-Demmer, Inc., providing
the latter is willing , copies of the attached notice
marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region
7, after being duly signed by Respondent's
authorized representative , shall be posted by it im-
mediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices
° 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
427-835 0 - 74 - 40
612 DECISIONS OF NATIONAL
to members 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 7, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees
in the exercise of their rights guaranteed in
Section 7 of the Act, by assessing fines against
members because of their filing of a decertifi-
cation petition with the National Labor Rela-
tions Board, their participation in the processes
of the Board, by supporting such a petition and
by casting ballots against this Union in an elec-
tion conducted pursuant to such a petition, or
because of their giving testimony against this
Union in an unfair labor practice proceeding
conducted pursuant to Section 10(c) of the
Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in their exercise
LABOR RELATIONS BOARD
of rights guaranteed in Section 7 of the Act.
WE WILL rescind the fines assessed against
Clyde Hale, James Fahnestock, Herbert An-
derson , Harold Hannon , Karl Demmer, and
Robert Walewski and expunge from our
records all references to such fines.
WE WILL reimburse the aforementioned em-
ployees for any amounts they may have paid
on such fines with interest at 6 percent from
the date of such payments.
AUTOMOTIVE SALESMEN'S
ASSOCIATION (A.S.A.)
Affiliated with SIUNA, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan, 48226,
Telephone 313-226-3200.