Barnett Pontiac, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1969

174 N.L.R.B. 302 (N.L.R.B. 1969)

A2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barnett Pontiac, Inc. and Automotive Salesmen's
Association (A.S.A.), affiliated with Seafarers'
International Union of North America , AFL-CIO.
Case 7-CA-6741
February 4, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 24, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modifications.
The Trial Examiner found that Respondent
violated Section 8(a)(5) and (1) on and after April
23, 1968. The General Counsel in his exceptions
contends that the violation occurred on and after
November 29, 1967. We find merit in this exception.
On February 7, 1967, as the Trial Examiner
found, the Union was certified as the exclusive
bargaining agent for Respondent's employees in an
appropriate unit. On February 23, the Union made
the first of several written requests to bargain, but
Respondent declined to meet. Thereafter,
Respondent met for the first time on November 29.
The Trial Examiner found that at this meeting the
Union presented contract proposals. In reply,
Respondent's vice president, Robert Barnett, Jr.,
asserted that "he could not negotiate anything
without his father (Respondent's President) being
there" and "couldn't agree to anything at that
time." In addition, Respondent's counsel stated that
he would accept the written proposals and later
discuss them with Barnett, Sr., and said "let's not
get into the economics." Thereafter, on December 6,
before any second meeting was held, Respondent
withdrew recognition because the Union, prior to
the November 29 meeting, had filed with the Board
a petition, subsequently granted, to amend its
certification to reflect its affiliation with Seafarers'
International Union; and it cancelled a meeting
which had been scheduled for January 13, 1968.
Thus, as the Trial Examiner stated, since the
Board's certification, "all the Union achieved was a
very short meeting on November 29, when Colombo
[Respondent's counsel] said only he would discuss
the Union's demands with his client. Then came a
complete closed door in the December 6 letter."
Moreover, the facts, as found by the Trial Examiner
and fully set forth in his Decision, show that
thereafter, Respondent's new counsel "literally
refused to negotiate," and merely went through the
motions of meeting with the Union's representatives,
with a deliberate intent to frustrate the Union's
desire for real negotiations.
Accordingly, on the basis of the facts as found by
the Trial Examiner, and the record as a whole, we
find that Respondent refused to bargain in good
faith with the certified Union on November 29,
1967, within the certification year, and at all times
thereafter, in violation of Section 8(a)(5) and (1) of
the Act.
The General Counsel also requests, in ' his
exceptions, that, in view of Respondent's unlawful
refusal to bargain, the period during which the
certification is immune from attack should be
extended for a period of 1 year. As the facts show
that Respondent has refused to bargain in good
faith from the inception of negotiations, we shall
grant the General Counsel's request, and extend the
normal certification year to 1 year from the date
when Respondent begins to bargain in good faith
with the Union as the recognized representative of
the employees in the appropriate unit.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
Barnett Pontiac, Inc., Dearborn, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as modified herein:
Add the following as paragraph 3 to the Trial
Examiner's Recommended Order.
"3. For the purpose of determining the duration
of the certification, the initial year of certification
shall be deemed to begin on the date the
Respondent commenced or commences to bargain in
The purpose of this remedy is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785; Commerce Company, d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd 328 F 2d 600 (C A 5), cert denied 379 U.S 817 , Burnett
Construction Company, 149 NLRB 1419, 1421, enfd 350 F.2d 57 (C A
10), Waycross Sportswear, Inc, 166 NLRB 101, enfd. 403 F 2d 832 (C.A
5).
174 NLRB No. 57
BARNETT PONTIAC
good faith with the Union as the recognized
bargaining representative in the appropriate unit."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS i . Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner at Detroit, Michigan, on
September 12, 1968, on complaint of the General Counsel
against Barnett Pontiac, Inc., herein called the
Respondent, or the Company. The sole issue presented is
whether the Respondent violated Section 8(a)(5) of the
Act. The charge was filed on May 9, 1968, and the
complaint on July 29, 1968. A brief was filed after the
close of the hearing by the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Barnett Pontiac, Inc., a Michigan corporation, is
engaged in the retail sale and servicing of automobiles and
related automotive products , with its place of business in
the City of Dearborn , Michigan. During the calendar year
1967, a representative period, it received gross revenues in
excess of $500,000 from the sale of new and used
automobiles and trucks . During the same period it
received goods and materials valued in excess of $8,000,
which were transported to its Dearborn location directly
from places outside the State of Michigan . I find that the
Respondent is engaged in commerce within the meaning
of the Act , and that it will effectuate the policies of the
Act to exercise jurisdiction herein.
It. THE LABOR ORGANIZATION INVOLVED
I also find that Automotive Salesmen's Association
(ASA), affiliated with Seafarers' International Union of
North America , AFL-CIO, herein called the Union, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
This is a refusal to bargain case. Certain fundamental
facts are either not disputed or beyond the area of
permissible litigation in this proceeding. The Charging
Union's exclusive majority representative status in an
appropriate unit was established in a prior Board
representation proceeding (Case 7-RC-7452). It was there
determined, and I now again find that all new and used
car and truck salesmen at the Company's Dearborn,
Michigan, place of business, excluding office clerical
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The election took place on December 7, 1966. At the
time this Company was represented by Attorney Frederick
Colombo. That representation case was processed by the
Regional Director together with approximately 200 other
separate representation petitions, all filed by this same
union, all for automobile salesmen, each involving a
separate bargaining unit, with the total number of
independent employers about 175. Colombo acted on
behalf of somewhere between 22 and 38 of the employers
303
in these many petitions. On their behalf, including the
Respondent here, Colombo filed objections to the
elections. These were overruled by the Regional Director
and the Union was certified here on February 7, 1967.
The same lawyer then filed with the Board in Washington
a request for review of the Regional Director's ruling on
objections and certifications, a supplementary proceeding
he brought on behalf of 17 named-employers, again
including Barnett. The Board denied review on April 27,
1967.
The Union, which had appeared on the election ballot
only as Automotive Salesmen's Association, in fact
affiliated with Seafarers' International Union of North
America, AFL-CIO, later in the year, and on November
20, 1967, it filed a series of separate petitions with the
Regional Director - one for each auto dealer where it
had been certified as bargaining agent, - for amendment
of its certificates to reflect the affiliation. There was a
hearing on these petitions, and again Colombo appeared
to protest the certificate amendments as attorney for 22
separate companies, including this Respondent. He also
advised the Union, by letter dated December 6, 1967, that
during the pendency, and until final resolution of Case
7-CA-20, as spokesman for the Barnett Pontiac Company
he would refuse to continue recognition of the Union. The
Regional Director ruled in favor of the ASA and amended
the certificates accordingly. Still , acting as Barnett's
attorney, Colombo, on February 13, 1968, filed a motion
to stay the Regional Director's decision in all the AC
proceedings, requesting such delay simultaneously on
behalf of 21 other dealers. He also filed a request for
review in this matter with the Board on March 1; this
appeal spoke for 22 companies, including Barnett. The
Board denied the appeal on April 26, 1968.
The answer to the complaint was filed on August 6,
1968, by new lawyers, Stringari, Fritz, Fiott and Burwell;
this firm had represented 34 independent auto dealer
employers in the AC proceedings in the fall of 1967
through 1968. The answer denies the allegation that this
Union has since its certification in February of 1967 been
the exclusive bargaining agent of the salesmen, and that it
still maintains that status now. But no evidence was
offered intended to cloud the continued validity of the
certification or the Union's majority standing today.
Accordingly, I find that the Union has at all times
material hereto been, and now still is, the exclusive
majority representative of the employees in the
appropriate unit.
Communications and Meetings Between Union
Representatives and Agents of the Respondent
Although the complaint specifies that lawyer Colombo's
letter of December 6, 1967 (where the Respondent
withdrew all recognition pending the AC proceeding), and
certain dilatory tactics of the Respondent's agents,
evidence the unfair labor practice alleged, clearly the
substantive burden of the complaint is that the Company
failed to accord to the Union the true recognition which
the statute commands. On February 23, 1967, a few weeks
after the certification issued, Mr. Duane Ashley, attorney
for the Union, wrote to the Respondent inviting it to a
bargaining session for February 27 in a certain conference
room. He sent like invitations to other auto dealers, and
explained to all that while it would be a joint meeting,
each employer could preserve his separate bargaining unit.
Lawyer Colombo answered for the Respondent, that he
would not meet because he was filing objections to the
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election and that in any event in the end the Respondent,
as well as all other dealers he represented, would have
nothing to do with joint meetings but would each insist
upon individual conferences for their own limited
bargaining units.
Ashley wrote again to the Respondent on July 27,
asking for immediate bargaining , and requesting some
kind of an answer by August 3. There was no reply, and
again on August 30 Ashley repeated the request directly
of the Respondent; the next day he advised Colombo by
mail of such demands upon 15 of his clients, including
Barnett. Colombo did not respond until September 15; he
acknowledged the receipt of the demands upon these
particular 15 auto dealers, and explained he had been able
to do nothing about any of them because during the last
60 days he had been engaged in negotiations between the
ASA and Charlie Burke Pontiac, Inc, and George Matick
Chevrolet, Inc. "Both of these matters, as you know, have
been time consuming to the point that it has been virtually
impossible for me to set up any kind of a schedule to
commence bargaining with the A.S.A. relative to the
above clients."
On September 11, 1967, Union agents called personally
on Robert Barnett, vice president, and requested a
meeting for negotiations. They left a written proposal for
a contract; it is a complete agreement except that direct
economic matters are omitted. The various sections cover
such matters as recognition, transfer of company interest,
grievance and arbitration procedures, seniority, layoff and
recall, transfers, leave of absence, suspension, a
geverability clause, and the term of the agreement. Barnett
told these men that the Union would have to
communicate with and deal with Lawyer Colombo. There
followed some telephoning by William Shekell, -union
representative, and then a letter from Ashley again to
Colombo, dated October 17. He told Colombo how the
Union's field personnel had been in personal touch with
nine of his clients, and of the fact each of them - the
employers - had taken the position it was Colombo who
must agree to set any date for negotiations. Ashley wrote
that if this was so, would Colombo at least place these
particular companies on a waiting list for eventual
bargaining . Colombo answered on October 23, saying he
had been in touch with only some of his clients and listed
six including Barnett, and that he did intend to act on
their behalf. He added that negotiations with two of these
- Dexter Chevrolet and Gene Merollis Chevrolet, -
were taking more time than had been expected. "I am
sure that from your experience you will agree with me
that it will take a number of meetings before the parties
can agree on a contract. Obviously, this will take some
time. Consequently, it does not seem in order that we
should schedule meetings for any additional clients until
we have concluded bargaining with those who have
presently agreed to meet with the Union."
The story continues with Shekell's testimony that at a
bargaining meeting for other dealers in Colombo's office
on October 18, at his request Colombo agreed to meet on
November 3 to discuss the Respondent's situation plus
that of three others.
Colombo later cancelled this meeting, and again, on
November 3, Thomas White, William Shekell, and Gene
Gough, all for the Union, returned to the Respondent's
place of business. Neither Robert Barnett nor his father
was there, and the Union representatives left a copy of the
proposed noneconomic contract with Earl Christie, the
salesman steward, to be given to management.
The union agents met with Colombo in his office on
November 29; Robert Barnett was there also. Now the
union representatives gave Colombo two documents, the
original noneconomic contract, and a detailed statement
of proposed money matters, such as commission, bonuses,
vacation pay and certain fringe benefits. There was some
talk, mostly the union men explaining what all these
proposals meant. Barnett took the position "he couldn't
agree to anything at that time because his father was in
Florida, " or, "he could not negotiate anything
without his father being there." Colombo said only that he
would accept the written proposals and later discuss them
with Barnett, Sr.: "He said let's not get into the
economics." At the close of the conference, it was agreed
the parties would meet again on January 13, but this
meeting was cancelled by Colombo's letter of December 6
withdrawing all recognition.
In January another lawyer, Lawrence Burns, entered
the picture on behalf of the Respondent. At the hearing
Burns said he was a labor law specialist and a long-time
friend of the senior Barnett. Three witnesses testified
about certain meetings held in Burns' office: Thomas
White and William Shekell, of the Union, and Burns.
During this period the union agents were meeting with
many separate auto dealers trying to negotiate a number
of contracts; they apparently were going from office to
office daily, and making innumerable telephone calls to
arrange necessary conferences. Although they made some
notes of details of events, inevitably their recollections
were faulty on minutiae. The clearest recollection as to
these meetings was that of White, who said that together
with other union agents he met with Burns four times,
January 23, February 9, March 1 and March 13. Shekell
was less clear as to dates, for he was present at some of
the meetings only a short time, because of other pressing
appointments to negotiate elsewhere Burns confessed he
could not recall dates at all, and while repeating there had
been six or seven such meetings, he conceded White may
have been correct in his testimony.
According to White, whose testimony is the most
reliable of all, with a group of union agents on January
23, he gave Burns both written proposals again, the
economic and the non-economic union demands. He said
many details of the non-economic suggestions were
discussed at the four meetings, with Burns agreeing as to
some and promising revisions in the language as to many
others. Burns said he was not "familiar with the
economics of the automobile business with respect to pay
plans," and therefore had to consult his client. Neither of
the Barnetts ever appeared at any of these meetings in the
lawyer's office. On February 9 and again at a later
meeting, Burns proposed certain changes in the time
schedule for filing grievances, and a detailed proposal
concerning work rules and regulations for the salesmen.
This last item, according to White, listed about 10 specific
rules to govern the work performance of the men. There
was much discussions of these rules and the Union agreed
to some of them, but not all. At 'one point White
suggested a $75 minimum commission, but Burns repeated
his "ignorance of the economic conditions in an
automobile dealership." Apart from his suggestion
concerning precise rules for work performance, Burns
never made any counterproposals, economic or otherwise,
on behalf of the Respondent, as indeed none was ever
-offered by any company representative.
White also testified he had been under the impression,
towards the last meeting, that Burns agreed to sign the
non-economic agreement, with a few changes, and with an
BARNETT PONTIAC
understanding that whatever economic matters might later
be decided, would be inserted later. Shekell's story is that
many details of the non-economic contracts were
discussed, that Burns agreed with a number of them, that
some were clarified at his request, and that Burns agreed
to sign it at one point. Shekell also recalled Burns saying
"I don't know the automotive business. He said it looks
reasonable to me but I will talk to Mr. Barnett, seeing he
is the owner, and make a counterproposal."
After the last meeting in early March, White and
Shekell appeared a number of times at Burns' office but
never succeeded in finding him. Finally, in his last
telephone call to the office on March 19, Shekell was told
by Burns' secretary the lawyer's message to them was that
if they had not asked for outside mediation he would have
signed the non-economic agreement. In fact, the Union
did turn to the Michigan State Labor Mediation Board,
which, by letter dated March 4, advised the Respondent
directly that a Mr. Leonard D. Bennett, one of its
mediators, had been assigned to the case. On April 4,
Bennett wrote to both Burns and the Union that he had
scheduled a meeting at his office for April 9, "to resolve
the dispute." Apparently this meeting was deferred, and
on April 23, the union agents and Burns; accompanied by
Robert Barnett, appeared at the mediation service office.
Bennett was not there, but a state mediator named
Gordon Lee was present in his place. Burns refused to
participate in any discussion because Bennett was not
there, and because, as he stated at the hearing: "I am was
not going to be shifted around by different mediators."
On April 29, the Union again told the Mediation
Service it was ready to meet anytime, anywhere, and
again on June 24 Bennett invited Burns to a conference
scheduled in his office for June 27. By this time Burns had
been talken ill, and the parties never met again. The
refusal to bargain charge was filed on May 9, 1968.
Analysis and Conclusion
I find that the record evidence in its entirety proves the
complaint allegation that the Respondent did not
adequately comply with the lawful duty to bargain with
the statutory majority representative of its salesmen. This
is not a charge against Mr. Colombo, who had too many
clients, and therefore not enough time to bargain with the
Union in place of Barnett Pontiac. He complicated the
Union's problems by refusing to participate in joint
meetings; he put the Union off again and again because
other clients had to be serviced, and he could not do more
than one thing at a time; he left no legal recourse unused
- exceptions to the election, attack upon the affiliation
with the SIU, two appeals to the Board for review of
Regional Director's decisions, and even straight
withdrawal of recognition from December forward. The
December 6 letter of outright refusal to bargain because
of the pendency of an AC petition, may or may not have
been illegal in itself. Surely, however, all the other
procedural steps he took were entirely lawful in
themselves. The important thing, so far as this complaint
is concerned, is that throughout the long period from
February 1967 to an uncertain date in 1968, when clearly
the Respondent placed its burden to negotiate upon
Colombo's shoulders, this lawyer did not bargain with the
Union. Despite repeated attempts to prevail upon
someone authorized by the Respondent to deal with it, all
the Union achieved was a very short meeting on
November 29, when Colombo said only he would discuss
the Union's demands with his client. Then came a
305
complete closed door in the December 6 letter.
Nor is this a proceeding against Attorney Burns
personally. He was under no legal duty to bargain with
anyone. He said Barnett, Sr., had given him full authority
to negotiate a contract, but to the union agents in his
office his expressed position was he knew nothing about
the economics of the auto selling business; this was a
virtual admission he could not, bargain, as in truth he did
not. Indeed, his own version of what took place when he
met with White and Shekell shows clearly he approached
the chore with ill will and did not really accept the idea of
open and fair consideration of their demands. The
following excerpts from his testimony are revealing:
A. The first thing I talked to the union about was
they had no words in their contract that we could even
start with. They had no work rules. They had been
operating at Barnett's on an operation that Barnett
could not do anything about, arriving late, leaving or
anything else, and I suggested to them they start doing
something about it. I never had a meeting on
economics with this union.
Q. Did you come to any agreement with the union
on -
A Never, never talked to them about it because I
said to them they had no language that would start this
as a union. They had no rules or regulations as to
coming in, having rules and regulations as to violations
of the union or the employer, when; they had to come
to work, when they could leave work, when they would
go to lunch. I understand Barnett let them go ahead. It
was his policy -
* * * * *
Q. Did you ever come to any agreement with the
union on non-economic items?
A. Never.
Q. Did you talk to the union about reducing it to
non-economic, reducing the non-economic items to
writing?
A. I talked to the union about coming out with rules
and regulations as to the salesmen when they would
report to work, when they would leave work and things
like that but it was never reduced to writing, never.
* * * * *
Q. (By Mr. Fischer) You made no counter proposal?
TRIAL EXAMINER: He said that.
THE WITNESS: I wouldn't make one -
TRIAL EXAMINER: Please, Sir.
THE WITNESS: Let me answer. I wouldn't make one
because I said the language they had submitted to me
and admitted by them did not even contain a labor
contract.
Burns denied flatly having received or seen any
economic demands during these meetings; he denied as
directly that he agreed to anything, however trivial,
relating to the non-economic documents. His insistence
that whatever the Union put in his hands was not even the
beginning of a collective-bargaining agreement, is, of
course, simply not true, and therefore much more
significant than mere exaggeration on his part. His failure,
as agent of Barnett, to make any counterproposals, weighs
more than otherwise as support of the complaint in the
light of Burns' almost boastful declaration that he never
intended to make any counter offer. The Union agent
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses were not very reliable with respect to what
details of the non-economic agreement Burns may have
been willing to accept, but I deem White's testimony more
credible than that of Burns, and find that there was some
talk about them, with Burns vaguely expressing agreement
only with respect to inconsequencial matters. There is no
question, as Burns virtually insisted at the hearing, that
the only subject he was really willing to talk about with
these men was more faithful attention to work
performance by the salesmen in the store.
In the end Burns, like Colombo before him, literally
refused to negotiate with the union representatives. There
was no real reason of substance why he should have felt
imposed upon when Mediator Bennett was unable to
appear and another arrived instead. Had Burns intended
in good faith to bargain with the Union, there was no
impediment at that moment. And again his fancied injury
- "I am not going to be shifted around" bespeaks a
deliberate intent to frustrate the Union's desire for real
negotiations. It must also be remembered that throughout
this entire period - January through April 23 - while
Burns was going through the motions of meeting with
White and Shekell, the entire matter of honestly
recognizing the Union and according it, the status called
for by its certification, remained under the cloud of
Colombo's December 6 letter, denying any duty to
bargain until the AC case ended with finality. Colombo's
appeal to the Board on behalf of Barnett was not decided
until April 28, 1968.
The Respondent - the real party upon which the
statute imposes the duty to bargain with a union lawfully
chosen by its employees - is the Barnett Pontiac
Company. Burns fell ill after the abortive meeting of April
23 at the Mediation Service office. The Union again asked
that the Service help, and Mediator Bennett again invited
Burns to a meeting on June 27. It will not do for the
Company to argue now, through its third lawyer, Mr.
Fritz, that because Burns was in the hospital in June and
did not personally see the invitation, it, the Respondent,
stands innocent of having ignored the last request for
bargaining. The Company had made Burns its alter ego,
and while it could not place a legal burden upon its
lawyer, neither could it divest itself of its own legal
obligation.
The moral of the case - a rule too well established at
this late date to require support citation - is that it is the
employer who must meet with the Union and negotiate in
good faith, for the conditions of employment which are
the substance of all collective bargaining flow from him
vis-a-vis his employees. If he choses to have an agent act
in his place, he remains always responsible to assure that
the agent fulfills the full gamut of the requirement of the
statute The agent's failure is his failure.' The Barnett
Pontiac Company can negotiate with the Union through
its own officers and owners; it can employ a lawyer less in
demand than is Mr. Colombo. It can use a lawyer who
represents a whole "association" of auto dealers and
engage in point meetings, while preserving its own separate
bargaining unit. But however the Company does it, it
must meet the union agents at reasonable times and fairly
consider and discuss proper proposals advanced. The
Respondent has not done this, although the request to do
so was made again and again. I find that from April 23,
1968 onward the Respondent refused to accord proper
recognition to the Union, and refused to engage in proper
collective bargaining, and thereby violated Section 8(a)(5)
of the Act.
W. THE REMEDY
It having been found that the Respondent refused to
bargain with the certified representative of its employees,
it must be ordered to do so now in order to effectuate the
policies of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. All new and used car and truck salesmen at the
Respondent's Dearborn, Michigan, place of business,
excluding office clerical employees, guards and supervisors
as defined in the Act, constitutes a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Automotive Salesmen's Association (ASA), affiliated
with SIUNA, AFL-CIO, was on February 7, 1967, and at
all times thereafter has been the exclusive
collective-bargaining representative of Respondent's
employees in the appropriate unit, within the meaning of
Section 9(a) of the Act.
5. By refusing on and after April 23, 1968, to meet with
the above-named labor organization and to bargain with it
for purposes of collective bargaining, the 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 are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Barnett Pontiac, Inc., Dearborn, Michigan, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Refusing to bargain collectively with Automotive
Salesmen's Association (ASA), affiliated with SIUNA,
AFL-CIO, as the exclusive representative of all employees
in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
any labor organization, to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
'Cf. Insulating Fabricators, Inc, 86 NLRB 1325, enfd. 388 F 2d 1002
(C.A 4).
BARNETT PONTIAC
(a) Upon request, bargain collectively with the Union
as the exclusive bargaining representative of all employees
in the appropriate unit described above, with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and if an
understanding is reached embody such understanding in a
signed agreement.
(b) Post at its place of business in Dearborn, Michigan,
copies of the notice attached here and marked
"Appendix."2 Copies of said notice, on forms provided by
the Regional Director for Region 7, shall, after being
signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including 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 said Regional Director, in writing, within 20
days from receipt of this Decision, what steps it has taken
to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
307
employees that:
WE WILL NOT refuse to bargain collectively with
Automotive Salesmen's Association (ASA), affiliated
with SIUNA, AFL-CIO, as the exclusive representative
of the 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 to self-organization , to form , join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL bargain collectively , upon request , with this
Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay , wages , hours of employment,
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 new and used car and truck salesmen , excluding
office clerical employees , guards and supervisors as
defined in the Act.
Dated By
BARNETT PONTIAC, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.