Bratten Pontiac Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1967

163 N.L.R.B. 680 (N.L.R.B. 1967)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other managerial and supervisory personnel, clerical
employees, and guards as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization , as the exclusive representative of
all employees in the aforesaid appropriate unit, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at the four offices comprising the
appropriate unit copies of the attached notice
marked "Appendix."" Copies of said notice, to be
furnished by the Regional Director for Region 2,
after being duly signed by Respondent's
representative , shall be posted by Respondent
immediately upon receipt thereof, and be main-
tained 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 for Region 2, in
writing , within 10 days from the date of this Decision
and Order, what steps Respondent has taken to
comply herewith.
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 field claims specialists and field claims
representatives employed by Respondent
assigned to the Bronxville, Jackson
Heights, Queens, and Brooklyn offices,
excluding superintendents and all other
managerial and supervisory personnel,
clerical employees, and guards as defined
in the Act.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY
(Employer)
Dated By
(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.
Employees may communicate directly with the
Board 's Regional Office, 5th Floor, Squibb Building,
745 Fifth Avenue, New York, New York 10022,
Telephone 751-5500, if they have any questions
concerning this notice or compliance with its
provisions.
'In the event that this Order is enforced by a decree of a
United States Court of Appeals, the words "a Decision and
Order" shall be substituted for the words "a Decree of the United
States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the Na-
tional Labor Relations Board, and in order to ef-
fectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees
that:
WE WILL NOT refuse to bargain collectively
with Insurance Workers International Union,
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 the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive
representative of all employees in the
bargaining unit described below with respect to
Bratten Pontiac Corp. and Teamsters,
Chauffeurs , Warehousemen , Helpers, Mis-
cellaneous, Brewery & Soft Drink Workers,
Norfolk, Newport News, Portsmouth &
Suffolk & Surrounding Territory, Local
No. 822, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
Cases 5-CA-3481 and 5-RC-5511.
March 30,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 16, 1966, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found merit in
the objections by the Union to the election
conducted on April 14, 1966, and recommended that
the election be set aside, that the petition in Case
5-RC-5511 be dismissed, and that all proceedings in
163 NLRB No. 85
BRATTEN PONTIAC CORP.
connection therewith be vacated. Thereafter, the
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in reply to
Respondent's exceptions and supporting brief.
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 the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner. I
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 and
hereby orders that the Respondent, Bratten Pontiac
Corp., Norfolk, Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition for
certification of representative filed in Case
5-RC-5511 be, and it hereby is, dismissed, and that
all prior proceedings held thereunder be, and they
hereby are, vacated.
' The Respondent 's request for oral argument is denied as the
record , including the exceptions and briefs , adequately presents
the issues and positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN , Trial Examiner : This complaint,'
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein called the Act), alleges that
Bratten Pontiac Corp. (herein called the Company or
' Issued May 31, on a charge filed May 9 All dates herein are
1966
, The chronology of the events in the representation proceeding
to the extent disclosed by this record , is as follows:
1. March 9-Petition filed
2. March 31-Stipulation for certification upon consent
election executed.
3. April 14-Election held, of 12 eligible voters, 3 votes
were cast for, and 9 against the Union
4 April 18-Ob)ections to conduct affecting results of
election filed.
5 May 27-Regional Director 's report on objections
issued recommending consolidation with unfair labor
practice case
6. June 22-Board orders consolidation
I find many errors in the transcript of evidence , some of a
substantial nature . On August 25, I issued and served on the
681
Respondent), intefered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and refused to bargain with
Teamsters, Chauffeurs, Warehousemen, Helpers,
Miscellaneous , Brewery & Soft Drink Workers, Norfolk,
Newport News, Portsmouth & Suffolk & Surrounding
Territory, Local No. 822, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union or Local
822), all in violation of Section 8(a)(5) and (1) of the Act.
Respondent's answer admits certain allegations of the
complaint, but denies the commission of any unfair labor
practices.
On June 22, the National Labor Relations Board (herein
called the Board), entered an order in Case 5-RC-5511,
based on the Regional Director's report on objections, and
Respondent's exceptions thereto, directing that said case
be consolidated with Case 5-CA-3481, for hearing and
decision.2 Pursuant to notice, a hearing before me was
held at Norfolk, Virginia, on July 19, on the issues raised
by the complaint and answer, and the objections to
conduct affecting the results of the election. All parties
were afforded full opportunity to introduce relevant
testimony, to examine and cross - examine witnesses, and
argue orally on the record. Oral argument was waived.
Briefs submitted by the General Counsel and Respondent,
respectively, have been duly considered.
Upon the entire record,3 including my observation of the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACTO
On March 8, W. E. Long, secretary-treasurer of the
Union, wrote Respondent that the Union represented a
majority of the Company' s salesmen , and requested
recognition and bargaining on their behalf.' The letter also
stated that the Union was filing a representation petition
with the Board, and asked that during the pendency of the
representation proceeding Respondent refrain from
making changes in the "wages and/or working conditions"
of the employees. Under date of March 14, Respondent
wrote acknowledging receipt of his letter, and stated that
said letter had "been referred to Mr. Edgar A. Tugman,
who represents our firm." A copy of this letter was sent to,
and admittedly received by, Tugman. On the same day
Respondent also wrote the Regional Office, acknowledging
receipt of a copy of the representation petition which the
Union filed on March 9, and stated that the material sent it
by the Regional Office had been forwarded to Tugman
"who represents our firm," and "any information your
parties directing them to show cause why the transcript should
not be corrected as indicated in an attachment to said order No
response to said order has been received Accordingly , I correct
the transcript as indicated in my order of August 25, and the
Appendix thereto, which are now made part of the record herein
No issue of commerce or labor organization is presented The
complaint alleges, the answer admits , and in the stipulation for
certification upon counsent election the parties stipulated facts
which establish these jurisdictional elements I find the facts in
accordance therewith
5 When Long wrote this letter, he had in his possession
authorization cards signed by 9 of the 12 new. and used-car
salesmen employed by Respondent. The evidence establishes the
due execution of these cards , all of which are dated March 3
There is no showing that these cards were obtained by any
misrepresentation, or that they are other than voluntary
designations of the Union as bargaining representative
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office desires should be obtained from Mr. Tugman."
About March 20, which was approximately a week after
acknowledging receipt of the Union's recognition demand
and of the representation petition, George W. Bratten,
Respondent's president, met with the 12 salesmen for
dinner at a local restaurant. Respondent contends that
Bratten was invited to the dinner by the employees, and
was their guest . I consider it unnecessary to make any
findings in that regard. Suffice it to say, Bratten paid the
check for the entire group. At the dinner, the subject of the
employees' dissatisfaction with employment conditions
arose, and Bratten admittedly polled the employees asking
each what his complaint was and what he wanted. In the
course of this discussion Bratten stated, "Why pay
someone to negotiate for you when you are grown men, you
can negotiate yourself with me." At the conclusion of the
discussion, Bratten stated that he would give the matter
consideration.
A day or two later Bratten circulated among the 12
employees a new pay plan which made some changes in
the basis on which the employees would be compensated,
as well as in their vacation and insurance benefits, all to be
effective April 1. The principal changes were:
1. In computing the gross profit on the sale of used cars,
on which salesmen received a 25-percent commission, an
item of $50 to cover servicing and complaints would be
included in cost which, to that extent , diminished the gross
profit. The effect of this was to reduce by $12.50 the
employees' commission on the sale of a used car.6
2. The Company would pay the entire cost of health
insurance for the employee. Prior to April 1, the Company
paid only one-half of such cost.
3. A bonus of $50 would be paid for the sale of 10 cars in
a month. Theretofore, the salesman had to sell 12 cars in a
month to earn that bonus.
4. A vacation of 1 week after 1 year of service for which
the employee would be paid $100, and 2 weeks after
continuous service of 2 years or more, the vacation pay in
such cases to be based on the average weekly earnings in
the preceding year. Theretofore, employees got a vacation
of 1 week after 1 year's service, and the vacation
allowance was a flat $100.7
The proposal which Bratten circulated among the
salesmen , they apparently discussed among themselves,
and the copy thereof which is in evidence is signed by each
of the 12 salesmen then in Respondent's employ. The date
of such signing, however, does not appear, but it does
appear that they had all signed by March 31. The evidence
shows that in settling accounts with the salesmen on
May 1, for earnings during the month of April,
computations were on the basis of the new proposal.
Hearing on the representation filed by the Union was
scheduled for March 31. On that day, or the day before,
the salesmen, as the result of discussion among
themselves, decided to communicate to Union Agent Long
their desire to withdraw their authorizations to the Union,
and Salesman House was designated to call Long for that
purpose. Later that day Company Vice President Martin,
unable to find House, asked salesman Peek to call Long.
Peek did so, but what he then told Long does not appear.
In any event, on March 31, the majority, if not all the
salesmen , met with Long shortly before the representation
hearing, telling Long that they wanted to withdraw the
authorization cards they had signed, and have the
representation petition withdrawn. Long refused this
request. The parties then attended the scheduled hearing
in the representation case, and the stipulation for
certification upon consent election, was there executed 8
Tugman signing it on behalf of Respondent, as "Labor
Relations Consultant." The election pursuant to said
stipulation, was conducted on April 14, and as above
stated, resulted in a vote of 9 to 3 against the Union.
On April 18, the Union filed timely objections to conduct
affecting the results of the election. The two grounds
alleged were:
1. The Company through its officers and/or agents
did confer with the employees singly and collectively
in such a manner as to intimidate and coerce the
employees affected in the unit.
2. The Company did further submit an agreement to
the employees and did further put into effect a change
in the pay plan and other benefits subsequent to the
request for recognition and filing of the recognition
petition.
Service of the objection was made by sending a copy
thereof to Tugman at the latter's office. Admittedly, no
copy of the objections was sent to Respondent, nor was
any service thereof made except upon Tugman, as above
stated. Tugman admits that he received the objections
mailed to him by the Union, and that he thereafter took the
document to Respondent to ascertain whether a copy
thereof had been sent to it . Although Tugman was unable
to state when he did this, the fair inference from his
statement is, and I find that he did soon, April 18 or 19."
Contentions and Concluding Findings
Respondent correctly asserts that absent valid and
meritorious objections to the election, the Board will not
fi The General Counsel contends, and there was some evidence
tending to show that the salesmen's commission on the sale of a
new car was to be increased by $5 under the proposed plan
Respondent denied that any increase in compensation resulted
from the plan At best, the General Counsel's evidence on this
point was confusing and unreliable Accordingly, I make no
findings on that point
r As an example, employee Peek has been employed by
Respondent continuously since 1961 In 1965 he received a
vacation of 1 week for which he was paid $100 In 1966 Peek
received 2 weeks' vacation for which he was paid $425
s The unit stipulated was "All new and used car salesmen
employed by the Employer at its Norfolk, Virginia, location,
excluding office clerical employees, professional employees,
guards, all other employees and supervisors as defined in the
Act " The complaint alleges, the answer admits, and I find this to
be an appropriate unit, within the meaning of Section 9(b) of the
Act
9 The evidence shows that the election was held and the tally of
ballots served, on April 14 `Excluding the intervening Saturday
and Sunday ( Board Regulations Sec 102.114), the 5-day period
provided for filing and serving objections expired April 21 The
Union mailed the objections to the Regional Office in Baltimore,
and the copy to Tugman was addressed to his office in Virginia
Beach Both envelopes were mailed on Saturday, April 16. The
envelope addressed to the Regional Office was received there on
Monday, April 18 Although Tugman was unable to state when he
received the envelope addressed to him, it is a fair inference from
the proven facts, which were not controverted, that Tugman
received the document referred to on April 18 1 so find There is a
strong presumption that mailed matter is delivered in the due
course of the mails This is particularly true where, as in the
instant case, it is shown that the mail was in fact received C J S
Evidence, Sec 136(d)
BRATTEN PONTIAC CORP.
set aside the election , nor issue a bargaining order, even
though it is established that the Employer engaged in
conduct which did in fact interfere with the election. See
Irving Air Chute Co., Inc., 149 NLRB 627, 629-630.
Relying on this rule, it contends (1) that no valid objections
to the April 14 election were filed by the Union; and
(2) that in any event the evidence is insufficient to
establish that Respondent engaged in any conduct that
violated the Act, or which would warrant setting aside the
election. I discuss these contentions in the order stated.
1. The validity of the objections to the election
Respondent 's contention that no valid objections to the
election were filed by the Union is based on the premise
that the Union did not serve the objections on Respondent,
the "party" to the representation proceeding , as required
by Section 102.69 of the Board's Rules and Regulations.10
It contends that service on Tugman did not comply with
the Regulations. Upon the facts presented by the record in
the instant case, I find and conclude that the Union served
and filed its objections in full compliance with the
requirements of the Board 's Rules and Regulations, and
that the validity of the election is properly before the
Board for determination . I base this conclusion on the
following:
1. Respondent's letters of March 14, one addressed to
Union Representative Long, and the other to Acting
Regional Director Sachs, stated , in substance, that the
matters connected with the representation case had been
referred to Tugman , who would represent Respondent's
interest therein . This constituted Tugman Respondent's
agent for the purpose of processing that case. Service of
the objection on Tugman as Respondent 's agent , was valid
service upon and notice to Respondent , within the
meaning of Section 102.69 of the Regulations. 11
2. Assuming arguendo, that valid service of the Union's
objections could not be made upon Tugman, and that such
could be validly effected only by mailing the document to
Respondent, as Respondent contends, the evidence shows
that Respondent in fact received the document within the
applicable period for the filing of objections. I have
heretofore found that Tugman received the objections on
10 Code of Federal Regulations , title 29, subtitle B, chapter I,
section 102 .69 In pertinent part said section provides
Within 5 days after the tally of ballots has been furnished,
any part may file with the regional director an original and
three copies of objections to the conduct of the election or
conduct affecting the results of the election , which shall
contain a short statement of the reasons therefore
Copies of such objections shall immediately be served on the
other parties by the party filing them , and a statement of
service shall be made
Respondent makes no contention that the objections were not
"immediately" served , it contends only that they were not served
on Respon
-
dent
If The Board's_ decision in General Time Corporation, 112
NLRB 86, relied on by Respondent , is inapposite here In that
case the Board held that objections mailed to the parties 2 days
after they were mailed to the Regional Office, were not
"immediately" served as required by the Regulations In the
instant case the objections were simultaneously mailed to the
Region and to Tugman Likewise , the Virginia statute upon which
Respondent relies (Code of Virginia , 1950, title 8, sec 59), if
applicable here, does not support Respondent 's position That
section, in material part, provides that service of process upon a
domestic corporation , as Respondent admittedly is, may be made
on "its president or other chief officer , or on its vice president,
cashier, treasurer , secretary , general superintendent , general
683
April 18, and on that day or the following day, showed
them to Respondent . The purpose of the Board's
requirement that a copy of objections to an election be
served on the other party, is to give the latter notice of the
pendency of the issues raised by the objections before the
Regional Director. If such notice actually reaches the
party, as it in fact did in the instant case, however this may
come about, the purpose of the Board' s Regulations has
been fulfilled.
Accordingly, and for the reasons stated , I find and
conclude that the Union filed its objections to the April 14
election, within the time and in compliance with Section
102.69 of the Board' s Rules and Regulations.
2. The merits of the alleged unfair labor practices
a. Allegations of interference, restraint , and coercion
As heretofore found, Respondent after receiving the
Union's demand for recognition , and the representation
petition filed by the latter, met with all the employees in
the unit . Regardless of who instigated the meeting , the fact
remains that Bratten , Respondent 's president , discussed
with the men the changes they desired in their wages,
hours, and working conditions, telling the men, "Why pay
someone to negotiate for you when ... you can negotiate
yourself with me." Several days later Bratten presented to
the men and had them sign what was in effect a contract
stating the terms and conditions of their employment,
including the compensation they would receive. As
heretofore set forth, the proposal Respondent submitted to
the employees gave them substantially increased benefits
in at least three areas ; namely (1) a bonus for selling 10
instead of 12 cars per month; (2) the entire cost of an
employee's life and health insurance instead of one-half
such cost; and (3) substantially improved vacation
benefits. That these promises were made by Respondent
to induce the employees to abandon their support of the
Union, the record leaves no room for doubt, and I so find.12
It was, as I find Respondent intended it to be, its way of
telling the Union that the latter 's request for bargaining
was rejected. By inducing the employees to deal directly
with the Company, and by granting the improvements
manager, or on any one of its directors , or on any agent of such
corporation .." [Emphasis supplied I It is argued that this
statute provides the only method for valid service of a document
State law, which is made applicable here by Sec 102 112 of the
Board's Regulations , which provides for service of papers in
accordance with applicable State law There is some question
whether the statutory provision referred to relates only to process
to commence an action , as distinguished from notice in the course
of a pending proceeding However, assuming the statute to be
applicable here, and that as Respondent contends , it provides the
only valid method for service of documents under Virginia law, it
expressly provides for such service upon "any agent" of the
corporation . As I have found that Respondent made Tugman its
agent for the purpose of the representation proceeding , service
upon Tugman was in accordance with the Virginia statute
12 The General Counsel argues that improved working
conditions were also granted by the "Holiday," "Sales Meetings,"
and "New Car Commission" provisions of the agreement which
Respondent entered into with the employees . The General
Counsel's evidence with respect to these provisions was at best
confusing . Accordingly, I make no findings that employees'
benefits were in fact increased by these provisions . Even if such
provisions did constitute changes in working conditions, the
nature of the violations herein found , and the scope of the
remedial order which I shall recommend , would , in either event,
be the same.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made effective by the contract, Respondent was
encouraging its employees to reject the Union. That the
employees so viewed this conduct is made abundantly
clear by the testimony of employee Peek who testified,
"Everyone of us signed that new pay plan. If that new pay
plan is in effect, sure, the Union can't offer us anything."
That such conduct on the part of an employer violates
Section 8(a)(1) of the Act, is settled. N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405; May Department Stores Co.
v. N.L.R.B., 326 U.S. 376,385; N.L.R.B. v. Bedford-Nugent
Corp., 317 F.2d 861, 863 (C.A. 7). As the Supreme Court
said in Exchange Parts Company, supra:
... We have no doubt that [Section 8(a)(1)] prohibits
not only intrusive threats and promises but also
conduct immediately favorable to employees which is
undertaken with the express purpose of impinging
upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect.... The danger inherent in well-timed
increases in benefits is the suggestion of a fist inside
the velvet glove. Employees are not likely to miss the
inference that the source of benefits now conferred is
also the source from which future benefits must flow
and which may dry up if it is not obliged. [At 409.]
b. The refusal to bargain
That the unit for which the Union requested recognition
is an appropriate unit , Respondent admits, and that it
represented a majority in that unit cannot be open to
question on this record . The evidence is uncontradicted
that 9 of the 12 employees in the unit freely and voluntarily
designated the Union as their collective -bargaining
representative . In this posture the Union 's recognition
demand of March imposed on Respondent the legal duty to
recognize and bargain with the Union , and its failure and
refusal to do so was violative of Section 8(a)(5) of the Act,
unless Respondent entertained a good -faith doubt of the
Union ' s majority. Hammond & Irving, Incorporated, 154
NLRB 1071. Significantly , Respondent does not claim any
doubt of the Union 's majority status,13 nor does the
evidence support such a claim . Respondent's conduct in
bargaining directly with the employees , as above found,
obviously had for its purpose destruction of the Union's
majority status and thereby to avoid the bargaining
obligations which the statute imposes. Such conduct is
inconsistent with a claim of good -faith doubt of the Union's
majority status , and demonstrates that the refusal to
bargain with the Union was predicated upon a rejection of
the collective -bargaining principle. Joy Silk Mills, Inc. v.
N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert . denied 341 U.S.
914. In an atmosphere of unlawful conduct of the kind in
which Respondent engaged , it is idle to speak of good
faith . Price-Less Discount Foods, Inc., d/b /a Payless, 157
NLRB 1143."
Accordingly , for the reasons stated , I find and conclude
that on the facts of the instant case, Respondent by
ignoring the Union's March 8 demand for recognition and
bargaining , and engaging in unfair labor practices
designed to destroy the Union's majority, refused to
bargain with the Union in violation of Section 8(a)(5) and (1)
of the Act. Fosdal Electric, 153 NLRB 85. I also find and
conclude that by dealing directly with its employees
regarding terms and conditions of employment, as above
set forth, at a time when the Union was entitled to
exclusive recognition as bargaining agent, Respondent
also violated Section 8(a)(5) and (1) of the Act. N.L.R.B. v.
Katz, 369 U.S. 736, 744; N.L.R.B. v. Elliott-Williams Co.,
Inc., 345 F.2d 460 (C.A. 7).
Conclusions with Respect to the Objections to the Election
Having found that Respondent engaged in conduct
violative of Section 8(a)(1) of the Act, 15 it follows that such
conduct interfered with the employees' free choice of a
collective-bargaining representative, and that the results
of the election must be set aside. See Leas & McVitty,
Incorporated, 155 NLRB 389, and the cases there cited.
However, in view of my recommendation, hereafter set
forth, that Respondent be required to recognize and
bargain with the Union, I shall, in accordance with Board
practice, recommend that the petition in Case 5-RC-5511
be dismissed, and that all proceedings in connection
therewith be vacated. S.N.C. Manufacturing Co., Inc., 147
NLRB 809; Bernel Foam Products Co., 146 NLRB 1277;
Irving Air Chute Co., Inc., 149 NLRB 627.
CONCLUSIONS OF LAW
1. 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 salesmen employed by
Respondent at its Norfolk, Virginia, location , excluding
office clerical employees, professional employees, guards,
and all other employees and supervisors as defined in the
Act, constitute an appropriate unit for the purposes of
collective bargaining , within the meaning of Section 9(b) of
the Act.
5. By dealing with the employees, and granting them
improvements in their wages, hours, and terms and
conditions of employment, for the purpose of encouraging
said employees to abandon their support of the Union,
Respondent interfered with and restrained its employees
in the exercise of rights guaranteed them by Section 7 of
the Act, and thereby violated and continues to violate
Section 8(a)(1) of the Act.
6. By failing and refusing on March 9, and at all times
thereafter to recognize and bargain with the Union as the
collective-bargaining representative of the employees in
the aforesaid unit , in accordance with the Union's request
of March 8, and by dealing directly with the employees in
13 Its sole argument is that it engaged in no unfair labor
practice or other conduct which would warrant setting aside the
election, and that the election, conclusively established the
minority status of the Union . As herein found, this argument is
without merit
14 Neither the fact that the Union filed a representation petition
at the same time it demanded recognition from Respondent, nor
the fact that Respondent consented to the election , is sufficient to
raise a good - faith doubt of the Union 's majority status, or excuse
its refusal to bargain with the Union See Midwestern
Manufacturing Company, Inc, 158 NLRB 1698, and the cases
there cited at fn 3
15 As such conduct occurred after March 9, the date the
representation petition was filed, and before the election on
April 14, it falls within what the Board regards as the critical
period Ideal Electric and Manufacturing Company, 134 NLRB
1275
BRATTEN PONTIAC CORP.
the aforesaid unit regarding their wages, hours, and terms
and conditions of employment, without notice to or
consultation with the Union, and at a time when the Union
was lawfully entitled to exclusive recognition as the
bargaining agent of the aforesaid employees, Respondent
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(5) and (1) of the Act, it
' will be recommended that Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In view of the nature of
the unfair labor practices found, which go to the very heart
of the Act, it will be recommended that Respondent be
required to refrain from in any manner infringing upon the
exercise of employee rights protected by Section 7 of the
Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4);
California Lingerie, Inc., 129 NLRB 912, 915.
Having also found that Respondent on March 9, and at
all times thereafter, unlawfully refused to recognize and
bargain with the Union, I shall recommend that it do so,
upon request, and, if an understanding is reached, embody
the same into a signed agreement. The record shows that
when the Union made its bargaining demand it
represented a substantial majority of the employees, and
that upon receipt of such demand Respondent embarked
upon an unlawful course of conduct designed to destroy
that majority to avoid its bargaining obligation. This
demonstrates that Respondent completely repudiated the
collective-bargaining principle. To prevent Respondent
from reaping the benefits of its own unlawful conduct, and
to restore as nearly as possible the situation that would
have prevailed but for Respondent's unfair labor
practices, a bargaining order is necessary. Bernel Foam
Products Co., Inc., 146 NLRB 1277; Irving Air Chute Co.,
Inc., 149 NLRB 627; S.N.C. Manufacturing Co., Inc., 147
NLRB 809.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the National Labor
Relations Board order that Bratten Pontiac Corp., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to bargain collectively with
Teamsters, Chauffeurs, Warehousemen, Helpers,
Miscellaneous, Brewery & Soft Drink Workers, Norfolk,
Newport News, Portsmouth & Suffolk & Surrounding
Territory, Local No. 822, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-
bargaining representative of its employees in a unit
composed of all new- and used-car salesmen at its Norfolk,
Virginia, location, excluding office clerical employees,
professional employees, guards, and all other employees
and supervisors as defined in the aforesaid Act, as
amended.
(b) Changing the wages, hours, or terms and conditions
of employment of the employees in the aforesaid unit,
685
without first bargaining concerning such matters with the
aforesaid Union, as the sole collective-bargaining
representative of such employees.
(c) Changing the wages, hours, or working conditions of
employees for the purpose of inducing them to abandon
support of any union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of the
aforesaid Act:
(a) Upon request, recognize and bargain collectively
with Teamsters, Chauffeurs, Warehousemen, Helpers,
Miscellaneous, Brewery & Soft Drink Workers, Norfolk,
Newport News, Portsmouth & Suffolk & Surrounding
Territory, Local No. 822, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-
bargaining representative of its employees in the aforesaid
unit with respect to rates of pay, wages, hours of
employment, and terms and conditions of employment,
and, if an understanding is reached, embody the same into
a signed agreement.
(b) Post at its business establishment in Norfolk,
Virginia, copies of the attached notice marked
"Appendix."" Copies of said notice, to be furnished by
the Regional Director for Region 5 (Baltimore, Maryland),
after being duly signed by its authorized representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for at least 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith. i'
IT IS FURTHER RECOMMENDED, that the Board dismiss
the petition in Case 5-RC-5511, and vacate all
proceedings had in connection therewith.
16 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 "
1' 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 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
employees that:
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL upon request, recognize and bargain with
Teamsters Local 822, as the exclusive collective-
bargaining representative of our employees in a unit
composed of all new- and used-car salesmen at our
Norfolk, Virginia, location, excluding office clerical
employees, professional employees, guards, and all
other employees and supervisors, as defined in the
Act, with respect to all matters of wages, hours, and
working conditions, and, if an understanding is
reached, embody the same into a signed contract.
WE WILL NOT change the wages, hours, or working
conditions of our employees in the aforesaid unit
without first bargaining with Teamsters Local 822,
regarding such changes.
WE WILL NOT change the wages, hours, or working
conditions of our employees for the purpose of
inducing them to abandon their support of Teamsters
Local 822, or any other union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form any labor
organization, to join or assist Teamsters Local 822, or
any other union, to bargain through representatives of
their own choice, 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.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of
Teamsters Local 822, or any other union.
BRATTEN PONTIAC CORP.
(Employer)
Dated By
(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, Sixth Floor, 707
North Calvert Street, Baltimore, Maryland 21202,
Telephone 752-8460, Extension 2159.
C & P Plaza Department Store, Division of
C & P Shopping Center, Inc. and Local
1401, Retail Clerks International Associa-
tion (AFL-CIO). Case 30-CA-261.
March 30,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 22, 1966, Trial Examiner Lee J. Best
issued his Decision in the above-entitled proceeding,
' Before this change, a food and variety store had been
operated at the Shopping Center location After removal of the
variety store , the Food Store Division continued operations at the
original location
2 The terminal date of the Plaza agreement was established to
coincide with the expiration date of the original contract which
covered the combined food and variety store operation . The Union
had maintained collective - bargaining relations with the Shopping
163 NLRB No. 97
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel and the Charging Party filed
answering 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 as amplified below.
As more fully set forth in the Trial Examiner's
Decision, the record shows that, in early 1960,
Respondent was organized as a separate division of
C & P Shopping Center, Inc., to operate the
Shopping Center's variety store, hereafter called the
"Plaza," which was removed from the Shopping
Center location and independently established at a
new location.' The Union was recognized, in
separate appropriate units, as the collective-
bargaining representative of employees at both
locations and executed an initial agreement with
Respondent to remain in effect from April 11, 1960,
through June 4, 1960.2 In February or March 1961, a
second Plaza contract was executed to be in effect
retroactively from January 1, 1961, through
December 31, 1962. On May 17, 1963, the Union and
Respondent executed the third Plaza contract which
was effective retroactively from January 1, 1963,
through December 31, 1964.3 On October 26, 1964,
the Union served timely notice on Respondent of its
desire to modify the agreement. However, as the
parties had done in the past, no attempt was made to
commence negotiations until after the expiration
date of the current agreement.
On January 14,1965 4 by request of the Union, the
parties met and Union Representative Peter Voeller
indicated that the Union wished to commence
negotiations. At the outset, General Manager
Russell J. Weber, also Respondent's labor relations
representative, took the position that since the
contract had expired, the Respondent was no longer
obligated to deal with the Union. He also complained
Center and its predecessor, C & P Drive-in, since 1948
d This agreement contained a valid union-security clause
without checkoff, and also provided for automatic annual renewal
after December 31, 1964, with the customary 60 days' notice of a
desire to terminate or amend the agreement
4 Unless otherwise indicated, all events hereafter set forth
occurred in 1965