Dean Sellers, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1969

174 N.L.R.B. 311 (N.L.R.B. 1969)

DEAN SELLERS
Dean 'Sellers, Inc. and Automotive Salesmen's
Associiation ( A.S.A.), affiliated with SIUNA,
AFL-CIO. Case 7-CA-6639
February 5, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 13, 1968, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged 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, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The General Counsel filed an
answering 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 and the entire record in the
case,' including Respondent's exceptions and brief,
and the General Counsel's answering brief, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
modifications noted below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
'Respondent 's request for oral argument is denied as in our opinion the
record, including Respondent ' s exceptions and brief, and the General
Counsel ' s answering brief, adequately presents the issues and positions of
the parties.
'The record reveals that the Trial Examiner's Decision contains certain
errors, which are hereby corrected Section I of the Findings of Fact
should read , in place of "calendar year of 1937 . ," "calendar year of
1967 "; III, A, 1, should read, in place of "February 22, 1968
"January 22, 1968 .11
We adopt the Trial Examiner' s finding that Respondent violated Section
8(a)(5) and 11) of the Act on and after February 29, 1968 However, we do
not adopt his further finding, with regard to the remedy , that Respondent
has failed to engage in any good -faith bargaining since January 23, 1967
The Union certification year expired on December 20, 1967. The charge
was filed on March 15, 1968 The complaint alleges violation of the Act on
February 29, 1968 Under Section 10(b) of the Act, events occurring before
September 15, 1967 cannot be proved as independent violations of the Act.
Since we do not find that Respondent deprived the Union of the protection
afforded by the certification period, we find no reason to extend the
certification year We therefore do not adopt the Trial Examiner's
recommendation that the certification year be extended for 11 months, and
amend his Recommended Order by deleting the final sentence of
paragraph 2(a)
311
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, Dean
Sellers, Inc., Detroit, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
March 15, 1968, by Automotive Salesmen's Association
(A.S.A.), affiliated with SIUNA, AFL-CIO, herein called
the A.S.A. or the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 7 (Detroit, Michigan), issued a
complaint, dated June 28, 1968, against Dean Sellers,
Inc., herein called the Respondent. With respect to the
unfair labor practices, the complaint alleges, and
Respondent's answer denies, that at all times on and after
February 23, 1968, Respondent refused to bargain
collectively with A.S.A. as the exclusive
collective-bargaining representative of all the employees in
a specified appropriate unit in violation of Section 8(a)(5)
and (1) of the Act.
Pursuant to due notice, a hearing was held before me at
Detroit, Michigan on August 5, 1968. All parties appeared
by counsel, and were given full opportunity to participate
therein On August 26, 1968, I received from the General
Counsel and Respondent briefs which I have fully
considered.
For the reasons hereinafter indicated, I find that
Respondent violated Section 8(a)(5) and (1) of the Act.
Upon the entire record in the case,' and from my
observation of the witnesses while testifying under oath, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Dean Sellers, Inc., a Michigan Corporation
with its office and place of business in Detroit, Michigan,
is engaged in the retail sale and servicing of automobiles
and related automotive products. During the calendar year
of 1937, a representative period, Respondent received at
its Detroit, Michigan location goods and materials, valued
in excess of $50,000, directly from points located outside
the State of Michigan; during the same period,
Respondent obtained gross revenues in excess of $500,000
from the sales of automobiles and trucks at its place of
business in Detroit, Michigan.
Upon the above undisputed facts, I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the record shows, and I find,
that Automotive Salesmen 's Association (A.S.A.),
affiliated with SIUNA, AFL-CIO, the Union herein, is a
labor organization within the meaning of Section 2(5) of
the Act.
' Certain errors in the transcript have been noted and corrected.
174 NLRB No. 56
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The issues in this proceeding are (1) whether
Respondent's conduct on and since February 29, 1968,
constitutes a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act; and (2) whether, if the first
issue is resolved against Respondent, the normal
certification year during which the Union's certification is
immune from attack should be extended.
A. The Refusal to Bargain
1. The appropriate unit and the Union's
representative status therein
Pursuant to an election conducted by the Board's
Regional Director in Case 7-RC-7463, Automotive
Salesmen's Association (A.S.A ), Independent, was
certified by the Board on December 20, 1966, as the
exclusive collective-bargaining representative of
Respondent's employees in a unit of all new and used car
and truck salesmen , excluding office clerical employees,
guards, and supervisors as defined in the Act, and all
other employees. In October 1967, A.S.A. became
affiliated with Seafarers' International Union of North
America, AFL-CIO, herein called Seafarers, and
thereupon filed petitions with the Board to amend its
certification to reflect this affiliation (7-AC-16 et al). A
consolidated hearing on said petitions was held on
January 1, 3, 4 and 5, and on February 22, 1968.
Thereafter, on February 9, 1968, the Board' s Regional
Director issued his Decision and Amendment of
Certification, in which he found that the "affiliation with
the Seafarers caused no loss of identity of the certified
A.S.A." and that the affiliated A.S.A. was but "a
continuation of the certified A.S.A.," and granted the
petitions to amend the certification to reflect this
affiliation.
In its answer to the Complaint, Respondent denies the
allegation that A.S.A. has at all times been and still is the
exclusive bargaining representative of the unit employees,
"for the reason that the majority of the present members
of the Certified Bargaining Unit do not wish to be
represented by ASA." At the opening of the hearing, the
Trial Examiner asked Respondent's counsel, Jon
Desenberg, what his position was in this regard. Counsel
thereupon stated, "our position is that the Union at
present does not have the majority nor did they have the
majority at the time any of the acts mentioned in the
complaint took place, nor at the time the charge was filed
or the complaint issued ." However, Respondent adduced
not one iota of evidence to support this position.' Indeed,
it did not even adduce any evidence on which it might rely
for the purpose of entertaining a good faith belief that
such was the case. And Respondent's counsel makes no
mention of his position in this respect in his brief.
I find, as alleged in the complaint, that the unit for
which A.S.A was certified is an appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. I further find, as also alleged in
the complaint, that at all times since December 20, 1966,
A.S.A. has been, and still is and continues to be, the
exclusive representative of all the employees within said
appropriate unit for the purposes of collective bargaining
'Any possible numerical loss of majority after February 29, 1968, is in
any event found to be attributable to Respondent's unlawful refusal to
bargain, infra , and hence invalid.
in respect to rates of pay, wages, hours of employment, or
other conditions of employment, within the meaning of
Section 9(a) of the Act.
2 Sequence of events'
On January 23, 1967,° Duane Ashley, attorney for
A.S.A., wrote a letter to Respondent, referring to
A.S.A.'s certification and requesting Respondent to begin
collective bargaining with A.S.A. "on February 7, 1967 at
10:00 a.m." The letter also requested Respondent "to
indicate your intended compliance with the
aforementioned request, in writing, by January 30, 1967,"
after which "you will be informed of the place at which
the bargaining will be held." This letter was sent by
registered mail, with the return receipt showing delivery
on January 25.
Attorney Ashley received a reply letter, dated February
1, 1967, from Respondent's Controller, Robert B. Sellers,
advising Ashley to contact Respondent "in person" at its
place of business in Detroit, Michigan. Ashley thereupon
telephoned Respondent's office to speak to Robert Sellers
on two occasions but was unable "to reach him." Robert
Sellers never returned Ashley's calls despite the fact that
on each occasion he left a message requesting a return
call. Ashley thereupon sent a reply letter, dated February
10, 1967, and addressed to Robert Sellers' attention at
Respondent's place of business, in which he recounted his
unsuccessful attempts to reach Robert Sellers by telephone
and advised that "if the intent of your letter was to
indicate that you are willing to negotiate with the
representative of yottr employees, please contact the writer
so that we may work out a date and time that the Union
representatives can meet at your dealership.'
After almost a month had elapsed without receiving a
reply to his February 10 letter, Ashley, on behalf of
A.S.A., filed with the Board's Regional office on March
6, 1967, a refusal-to-bargain unfair labor practice charge
against Respondent in Case 7-CA-5961. About this point
in March 1967, Fred George became secretary of A.S.A.
and took over collective bargaining responsibilities with
respect to Respondent.
On March 21, 1967, George telephoned Respondent at
its dealership and asked the operator to be connected with
Dean Sellers. The person who answered identified himself
as Robert Sellers and stated that he was in charge of the
dealership. When George introduced himself, he was told
by Robert Sellers to contact Respondent's attorney, Jon
Desenberg, for any negotiating dates.
Immediately after this conversation, George telephoned
Desenberg's law office and spoke with Desenberg himself.
George introduced himself by name and title and stated
that he "was calling for a negotiation date to be set for
the purposes of negotiating" a collective-bargaining
agreement for the employees at Dean Sellers. Desenberg's
response was that A.S.A. had filed a refusal-to-bargain
charge against Dean Sellers and that he would not
negotiate unless this charge "were dropped." George
replied that he would have to consult with the A.S.A.
'Unless otherwise indicated, the findings in this section are based on
credited evidence and testimony which is either admitted or undemed
'Evidence pertaining to events occurring prior to September 15, 1967,
were offered and received for background purposes.
'Respondent 's Attorney Desenberg testified on direct examination that
no response was received to Robert Sellers' letter of February 1 However
on cross-examination, he qualified his answer by testifying that there was
no "follow-up contact" between "the union and Mr. Sellers to which I was
a party " Robert Sellers was not called as a witness and did not testify.
DEAN SELLERS
board members and Attorney Ashley about withdrawing
the unfair labor practice charge, and that Desenberg
would be notified.'
George immediately consulted with Ashley and
A.S.A.'s board members . They decided that it would be
better to withdraw the charge and negotiate than to go
through with an unfair labor practice proceeding. The
charge was thereupon withdrawn. ,
On March 28 , 1967, George telephoned Desenberg and
requested that a date for negotiations be set. A tentative
date of April 11, 1967, was set . On that date George for
the first time met with Attorney Desenberg in the latter's
office. No one else was present. After remarking on the
absence of Desenberg ' s principals, George gave Desenberg
two copies of A.S.A' s noneconomic proposals. One copy
was for Desenberg , and the other copy was for Sellers.
Desenberg said they would like to read it over and if there
were any questions about it they would be answered in a
counterproposal which would be submitted to George.
They talked "a little" about the noneconomic proposals
and discussed "most of our ground rules" for negotiation.
It was a short meeting of not more than one hour and
ended with the understanding that Desenberg would
arrange another meeting when he obtained a
counterpi oposal.'
From April 11 to May 23, 1967, George was unable to
reach Attorney Desenberg by a number of telephone calls
placed to his office, although each time he left a message
with the office secretary for a return call He finally
reached Desenberg on the telephone on May 23, and
asked why there had been such delays in arranging further
meetings to negotiate a contract . George wanted to know
if this was going to be the pattern of negotiations with
long "stalls" and delays between meetings . Desenberg's
reply was that Respondent was still in the process of
reviewing A.S.A.'s proposals and that he still had to
discuss the matter with Sellers.
Immediately after this telephone conversation, George
sent a follow - up letter by certified mail to Desenberg,
stating:
Repeated attempts as early as April 11, 1967 were
made to contact you in regards to Dean Sellers, Inc.
for the purpose of negotiating a labor contract for the
sales employees.
'The findings in this paragraph are based on the credited testimony of
George Desenberg's testimony differed only in the following respect.
Desenberg testified that he "proposed to him [George] that the charge be
withdrawn and that bargaining be commenced . He agreed to that
procedure " However, at another point in his testimony , Desenberg
admitted that he would not bargain "while faced with an unfair labor
practice complaint," that that position was "in line with all the proposals
we had made ' to the union in connection with all the other charges made
against us ," and that "we always proposed to go ahead when the unfair
labor practice charge had been resolved ." In view of these admissions and
the fact that Desenberg did not impress me favorably as a credible witness,
as hereinafter further indicated , I do not credit his testimony to the extent
that it conflicts with that of George 's as set forth in the text
'Desenberg testified that this meeting occurred about March 28, 1967,
and that he had "some further contact with Mr George" about April 11,
"the exact nature of which I am not sure of at the present time." George
admitted that he might have been mistaken about the date being April 11
rather than March 28 but thought that what had happened was that the
date for the meeting had originally been set for March 28 and in a
telephone call was changed to April 11 . Desenberg ' s admission that he
forwarded a copy of the proposed contract to Respondent on, April 12,
would tend to support George's version that the meeting occurred on April
11. While it is immaterial whether the meeting occurred on March 28 or
April 11, I have accepted the April II version inasmuch as counsel for
Respondent has accepted that version in his brief.
313
I find it necessary to write in regards to this matter.
A reply upon receipt of this letter will be expected
within 48 hours, for the purpose of setting an
appointment for negotiations. I hope it will not be
necessary to take further action.
Although this letter was received by Desenberg on May
25, as the return receipt shows, he never replied thereto.
On May 26, 1967, Attorney Ashley sent the following
letter by certified mail to the attention of Robert Sellers
at Respondent's place of business, with a copy to
Desenberg's law firm:
The writer is the attorney for the Automotive
Salesmen 's Association (A.S.A.), Independent, and has
been informed by Mr. Frederick George, the Union
official in charge of negotiating at your dealership, that
he has been unable to arrange meetings with you and
your representatives. He has further advised me that
your representative has indicated to him that he lacks
the power or the authority from you to even set a date
to negotiate a contract. If this is not the case, kindly
rectify the situation immediately.
Looking for your immediate response, I am, -
Desenberg admitted that he received a copy of this letter
and made no reply thereto. On June 9, 1967, Ashley
received the following reply letter, signed by Julia Apian
as office manager for Dean Sellers, Inc.:
This will acknowledge your letter of May 26, 1967
with reference to the law firm of Mall, Desenbe^g,
Purdy, Bayer and Glover.
This is to advise that we have utmost confidence in
the above mentioned firm and suggest that whatever
Mr. Frederick George has to discuss in connection with
a salesman union, that such contacts be carried out
with Mr. Desenberg.
The management of this company, of course,
reserves the right of final approval.
Desenberg testified that "on or slightly prior to June
16, 1967," he had a telephone call from George, that
George "wanted a definite date set for resumption of
negotiations and we agreed upon a date" which was
"sometime between June 25 and July 1, the exact date I
do not recall," that George did not appear on the date of
the scheduled meeting, and that he did not hear from
George again or any other representative until October 16,
1967, when he had a telephone conversation with George
who explained why he had not appeared at the scheduled
meeting in June However, Desenberg admitted that he
could not recall what George's explanation was.
As I have previously noted, Desenberg did not impress
me as a credible witness. He displayed a conveniently
poor memory on important matters and his testimony was
at times contradictory and shifting, as the examples in the
margin indicate.' That George would have failed to appear
on a specific scheduled date for resumption of negotiations
which he had been so assiduously seeking, without any
explanation or followup for almost 4 months, as
Desenberg testified, just defies belief. It would constitute
an incomprehensible deviation from the entire pattern of
the conduct and efforts of George and Ashley to have
such a meeting take place. Under all the circumstances, I
do not credit Desenberg's testimony that he and George
had agreed on a definite date for resumption of
negotiations, which allegedly was "sometime between June
25 and July 1," and that George failed to appear at that
time.
'Thus, he testified that his first involvement in this case occurred about
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desenberg further testified that George telephoned him
on October 16, 1967, requesting a meeting, and that a
meeting was held the next day, October 17, lasting about
2 1/2 hours. He further testified that every aspect of the
proposed contract was discussed at this meeting, that
proposals were made by him and George, and that he
could not "remember" whether agreement was reached on
anything
On the other hand, George testified that on October 17,
1967, he telephoned Desenberg and asked for a
negotiation date to bargain for a contract, and that the
only response he got from Desenberg was a promise to
call back no later than Monday, October 23. Thus,
implicit in George's testimony is a denial that any
negotiating meeting with Desenberg took place on
October 17.
On Monday, October 23, Desenberg telephoned George
and informed him that "Mr. Sellers would like some
questions answered before he would sit down to negotiate
any kind of a contract" and that Desenberg orally stated
some of the questions. George replied that he did not
think any of these questions were "relevant to any part of
the negotiations but that if he (Desenberg) wanted to put
them in letter form and send them to me I would look
them over." Desenberg did not deny George's credited
testimony about this telephone conversation, as
hereinabove set forth. Indeed, he admitted that this was
the subject matter of the October 23 telephone
conversation as his letter of October 31, further verifies.
Thereafter, George received from Desenberg the
following letter, dated October 23, 1967:
This will confirm our telephone conversation of October
23rd during which I indicated the company's desire to
obtain answers to the following questions:
1. What are the union's long range objectives?
2. What can the union do for the company?
3. Who are the union officers?
Upon consideration of all the' foregoing, I am
convinced and find that the negotiating meeting of
February 1 , 1967, as a result of the unfair labor practice charge filed in
Case 7-CA-5961 Yet, the charge itself shows that 'it was not filed until
March 6, 1967 . He testified on direct examination that no response to
Robert Sellers' letter of February 1, 1967, was received; but on
cross-examination , when Ashley ' s reply letter of February 10, 1967, was
pointed out to him , he shifted his position and qualified his answer to state
that there had been no "follow-up contact" between "the Union and Mr.
Sellers to - which I (Denenberg) was a party " Again he testified at great
length and went into considerable extensive detail with respect to all the
specific aspects of the union' s proposed contract which allegedly were
discussed at a meeting with George ' on October 17, 1967 , yet, he
conveniently could not recall whether agreement was reached on anything
at that meeting Thus he testified that "I simply don't remember ." He also
at first testified that at this alleged meeting of October 17, George
"indicated to me that he would be perfectly happy to obtain answers for
me to those questions" which Respondent wanted answered and which
Desenberg at that time stated orally and that Desenberg agreed to comply
with George's request that Respondent submit these questions in writing.
However ; almost immediately thereafter , Desenberg contradicted himself
by testifying that it was in a telephone conversation with "Mr . George on
October 23 , 1967" that "we discussed the questions to be transmitted from
the company to the union ," thereby corroborating George 's version of that
telephone conversation. Still a different version is set forth in Desenberg's
brief which quotes George as stating, in response to Desenberg's proposal
at the conclusion of the October 17 meeting that the Union supply
Respondent with answers to several questions , that "if he (Desenberg)
wanted to put them in letter form and send them to me , I would look them
over." Not only is Desenberg attributing to George a different answer in
his brief from that which he attributed in his testimony , but the quoted
answer is George's testimony of his answer in the telephone conversation
of October 23.
October 17, 1967, to which Desenberg testified, as
hereinabove set forth, either did not take place or took
place on a different date. In any event, assuming that it
did take place as Desenberg testified, I would reach the
same conclusions and make the same findings with respect
to Respondent's conduct, as hereinafter set forth.
A.S.A. made no response to Desenberg's letter of
October 31; instead, Attorney Ashley on its behalf filed
with the Board another refusal-to-bargain charge on
November 9, 1967, in Case 7-CA-6431. This charge was
later withdrawn to pave the way for the petition of A.S A.
(7-AC-16 et al.) to amend its certification to reflect its
affiliation with the Seafarers. As previously noted, a
consolidated hearing on this petition was held before the
Board on January 3, 4, and 5 and February 22, 1968.
Desenberg attended the hearing only for about 1 1/2
hours on the first day at which time he saw George in
attendance.
About January 10, 1968, George telephoned Desenberg
and again asked him to set up a negotiating date.
Desenberg replied that they would not bargain while the
petition to amend the certificate was pending and that
"this was their position on it "9
On February 9, 1968, the Regional Director issued his
Decision and Amendment of Certification, granting the
petition to amend A.S.A.'s certification to reflect its
affiliation with Seafarers, as previously noted. Attorney
Desenberg admitted that he received a copy of this
Decision during the 'period between February 9 and 13,
1968.
On February 23, 1968, Attorney Ashley, on behalf of
A.S.A., sent the following registered letter to Respondent,
addressed to the attention of "Mr. Dean L. Sellers,
P res.":
On February 9, 1968, Jerome H. Brookes, Esquire,
Regional Director of the National Labor Relations
Board for the 7th Region issued the decision amending
the certification of representation held by the
Automotive Salesmen's Association (A.S.A.),
Independent, at your dealership to reflect the affiliated
name of the Union. Based upon the aforestated
decision, the Automotive Salesmen's Association
(A.S.A.), affiliated with SIUNA, AFL-CIO, requests
that you recognize your legal responsibilities under the
N.L.R.A. by engaging in immediate good faith
bargaining with the Union for the purpose of reaching a
collective bargaining contract covering your employees
in the previous N.L.R.B. certified unit.
Accordingly, it is requested that your
acknowledgement of this letter be made to this office
on or before March 1, 1968. Your failure to respond
promptly shall be construed by the Union as a refusal
to bargain and the appropriate legal procedures will be
undertaken by the Union.
Attorney Ashley received the following reply letter,
dated February 29, 1968, from Attorney Desenberg:
Re: Dean Sellers, Inc. v. N.L R.B.
Dear Mr. Ashley:
'The findings in this paragraph are based on George's credited
testimony. George testified that he remembered this telephone call because
he had made a note of it and because he had been directed by William
Shekell , a union agent , to contact Desenberg . The latter testified that
during the period from November 9 , 1967, to February 9, 1968 , "I have no
recollection of any phone calls from Mr George , any contact from the
Union whatsoever." As previously noted, Desenberg conveniently resorted
to a lack of memory on significant matters
DEAN SELLERS , 315
This will acknowledge receipt of your February 23,
1968 letter with respect to the above captioned matter.
On March 15, 1968, Attorney Ashley, on behalf of
A.S.A., filed the instant refusal-to-bargain charge against
Respondent. The instant complaint was issued by the
Board on June 28, 1968, setting the case down for a
hearing on August 5.
On July 16, 1968, Attorney James Plath, a law partner
of Attorney Ashley, sent the following letter by certified
mail to the attention of Robert Sellers at Respondent's
place of business:
The undersigned as one of the attorneys representing
the Automotive Salesmen's Association (A.S.A.),
affiliated with SIUANA, AFL-CIO, at this time again
makes demand upon you to commence collective
bargaining with the Union for the purpose of reaching a
contract covering the employees within the certified
unit.
Please be informed that the Union is willing to meet
with you and/or your representatives at any location
and at any time convenient to yourself, provided,
however, that such bargaining take place during the
week of July 22, 1968 through and including Friday,
July 26, 1968.
I request a reply to this letter indicating whether or
not you intend to bargain and your suggestions for the
commencement date.
Attorney Plath received the following reply letter, dated
July 17, 1968, from Attorney Desenberg:
Re: Dean Sellers, Inc.
Dear Mr. Plath:
It is not our intention to bargain, while faced with an
unfan_r labor practice complaint.
refusal to bargain." Desenberg's letter complied only with
the second request.
Moreover, viewed in the context of the preceding
events, there can be no doubt that the letter contained a
request that Respondent engage "in immediate good faith
bargaining with the Union." Desenberg was aware that
this is what the Union and its attorney had been seeking
since its certification. Desenberg was an experienced labor
attorney who had previously spent about 21 months as a
trial attorney with the Board and was therefore familiar
with these matters and situations. Indeed, he admitted in
his testimony that the letter "was a request to
acknowledge the fact that we were ready to commence
and resume negotiations." Also in his brief, he states that
the letter "requested immediate bargaining." Prior to the
receipt of this letter, Desenberg had already received a
copy of the Regional Director's Decision in the AC
petition, granting the request to amend A S.A.'s
certification to reflect its affiliation with the Seafarers.
Under all the circumstances, I cannot accept
Desenberg's contention in his testimony and brief that he
regarded the letter as "in the nature of an announcement
that the AC petition had been approved by the Regional
Director" and that a mere acknowledge of receipt of said
letter would constitute a compliance with the requests
contained therein I regard Desenberg's response as a
"cute" and deliberately devised stratagem to evade and
avoid compliance with the bargaining obligations imposed
by the statute. His answer differs only in form, but not in
kind, from no answer at all to a bargaining request. I find
that Respondent's failure to answer the Union's
bargaining request on February 23, 1968, constitutes a
refusal to bargain in violation of Section 8(a)(5) and (1) of
the Act.
3. Respects in which Respondent violated the Act
The complaint alleges that "about February 23, 1968,
and at all times thereafter, Respondent did refuse, and
continues to refuse, to bargain collectively with the
A.S.A." In support of this allegation, the General Counsel
relies principally (a) on Attorney Desenberg's reply letter
of February 29, 1968, to Attorney Ashley's letter of
February 23, and (b) on Desenberg's reply letter of July
17, 1968, to Attorney Plath's letter of July 16.
(a) As to the letter of February 29, 1968
Respondent ' s Attorney Desenberg argues in his brief
that his letter of February 29, 1968, which merely
acknowledged receipt of Attorney Ashley' s letter of
February 23, complied with the "sole specific request by
the Union" and therefore did not constitute a refusal to
bargain. This conclusion is invalid because it is based on
an erroneous premise.
Viewed on its face and in isolation from the events
which preceded it, Ashley's letter of February 23
specifically made two requests . Thus it stated ( 1) that the
A.S.A. "requests that you recognize your legal
responsibilities under the N.L.R.A. by engaging in
immediate good faith bargaining with the Union for the
purpose of reaching a collective bargaining contract
covering your employees in the previous N.L.R.B.
certified unit," and (2) that "it is requested that your
acknowledgement of this letter be made to this office on
or before March 1, 1968 ." The last sentence in the letter
seeks a prompt response to both requests and warns that a
failure to do so "shall be construed by the Union as a
(b) As to the letter of July 17, 1968
Desenberg admitted in his testimony that the position
set forth in his reply letter of July 17, 1968, stating that
"it is not our intention to bargain while faced with an
unfair labor practice complaint," was "in line with all the
proposals we had made to the union in connection with all
the other charges made against us" and that "we always
proposed to go ahead when the unfair labor practice
charge had been resolved."
It is too well settled for extensive citation of authorities
that "the filing of unfair labor charges by a union," and
the processing of said charges by the Board, do "not
relieve an employer of its obligation to bargain in good
faith under Section 8(a)(5)" of the Act.' ° Accordingly, I
find that on July 17, 1968, Respondent again refused to
bargain in violation of the Act.
(c) Concluding findings
I find that on February 29, 1968, and at all times
thereafter, Respondent had refused and continues to refuse
to bargain collectively with A.S.A. in violation of Section
8(a)(5) and (I) of the Act.
B. Extension of Certification Year
The General Counsel contends that the period during
which A.S.A .'s certification is immune from attack, that
is the normal certification year, should be extended in this
"Skyline Homes , Inc v N L R B., 323 F 2d 642, 647 (C.A. 5),
N L R.B. v Southland Cork Co , 342 F.2d 702, 706 (C.A. 4)
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case to the period of one year from the date when
Respondent begins to bargain in good faith. Respondent's
attorney contends in his brief that "neither an extension of
certification nor any time limitation on bargaining is
called for."
The Board has held that "a certified union is entitled to
a full year of good-faith bargaining" [Thompson Machine
& Tool Corporation, 172 NLRB No. 193, fn 1] in order
"to give a certified union `ample time for carrying out its
mandate and to prevent an employer from knowing that
`if he dillydallies or subtly undermines union strength' he
may erode that strength and relieve himself of the duty to
bargain" [Mar-Jac Poultry Company, Inc., 136 NLRB 785,
786-787]. In the instant case, I find that Respondent has
in fact "dillydallied" and has failed to engage in any good
faith bargaining from the time of the Union's first
bargaining request on January 23, 1967. During that
entire period, at most only two meetings were held. After
repeated efforts by the Union, the first one was finally
agreed to by Desenberg for April 11, 1967, almost 3
months after the initial request and only after the Union
had filed a refusal-to-bargain charge against Respondent
and was required by Desenberg to withdraw it as a
condition to commencing negotiations. This was in the
nature of a preliminary meeting where the Union
submitted its noneconomic proposals for Respondent's
consideration and discussion at subsequent meetings
Despite the Union's repeated efforts to arrange another
meeting, over 6 months elapsed before Desenberg agreed
to the second meeting in October 1967, assuming that it
did in fact occur. There is no showing that anything was
accomplished at this meeting. Desenberg admittedly could
not remember if agreement was reached on a single item.
Thereafter, Desenberg submitted a series of questions
which Respondent wanted the Union to answer before it
would "negotiate any kind of a contract." The questions
submitted by Respondent are wholly irrelevant to the
subject matters concerning which Respondent is required
by statute to bargain, and answers to such questions
therefore may not validly be required as a condition to
such bargaining. Thereafter, Respondent, through
Desenberg, continued outright to refuse to meet and
bargain despite the Union's requests on at least three
specific occasions. At no time did Respondent or
Desenberg allay the Union's expressed concern, although
requested to do so in Ashley's letter of May 26, 1967, that
Desenberg "lacks the power or authority from
[Respondent] to even set a date to negotiate a contract."
It is clear from the foregoing, as I find, that
Respondent's failure to bargain in good faith deprived the
Union of the fruits of the normal certification year to
which it was entitled. However, since the A.S.A.'s initial
bargaining request was made about one month after its
certification, I will recommend that the normal year be
extended in this case to the period of 1 I months from the
date when Respondent begins to bargain in good faith
with A.S.A. as the recognized representative of the
employees in the certified unit."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations set
"Thompson Machine & Tool. supra; Waycross Sportswear, Inc, 166
NLRB 101, fn. 1, and Burnett Construction Company , 149 NLRB 1419,
1421, 1422
forth 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 commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. All new and used car and truck salesmen at the
Respondent's Detroit, Michigan, place of business,
excluding office clerical employees, guards and supervisors
as defined in the Act, and all other employees constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since December 20, 1966, Automotive
Salesmen's Association (A.S.A.), affiliated with SIUNA,
AFL-CIO, a labor organization, has been, and still is, the
exclusive representative of all the employees within said
appropriate unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or
other conditions of employment, within the meaning of
Section 9(a) of the Act.
3. By refusing at all times on and after February 29,
1968, to bargain with the aforenamed Union as the
exclusive representative of the employees within the
aforestated appropriate unit, Respondent has engaged and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
4. 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 refused to bargain with
A.S.A. in violation of Section 8(a)(5) and (1) of the Act, I
will recommend that it cease and desist therefrom, and
that, upon request, it meet with reasonable promptness,
regardless of the possible pendency or processing of any
unfair labor practice charges, and bargain collectively in
good faith with the said A.S.A. with'respect to wages,
rates of pay, hours of employment, and other conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. I will
further recommend that upon resumption of such
bargaining and for a period of I1 months thereafter,
A.S.A be regarded as if the initial year of certification
had not yet expired.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, Dean Sellers, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing or failing to meet with reasonable
promptness and to bargain collectively in good faith with
Automotive Salesmen's Association (A S.A.), affiliated
with SIUNA, AFL-CIO, as the exclusive bargaining
representative of all the employees in the following
appropriate unit:
All new and used car and truck salesmen at
Respondent's Detroit, Michigan, place of business,
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
DEAN SELLERS
(b) Refusing, during the pendency or processing of
unfair labor practice charges, to meet and bargain
collectively in good faith with the above-named Union, as
the aforesaid exclusive bargaining representative, with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectual. the policies of the Act:
(a) Upon request, meet with reasonable promptness,
regardless of the possible pendency or processing of any
unfair labor practice charges, and bargain collectively in
good faith with the aforesaid Union as the exclusive
representative of all the employees in the above-described
unit with respect to wages, rates of pay, hours of
employment, and other conditions of employment, and, if
an understanding is reached, embody such understanding
in a signed agreement. Regard said Union, upon
resumption of bargaining and for 11 months thereafter, as
if the initial year following certification had not expired
(b) Post at its place of business in Detroit, Michigan,
copies of the attached notice marked "Appendix A."' 2
Copies of said notice, on forms to be provided by the
Regional Director for Region 7, shall, after being duly
signed by an authorized representative of Respondent, be
posted by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by said Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent 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 the Regional Director for
Region 7 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
317
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:
WE WILL, upon request, with reasonable promptness
and regardless of the possible pendency or processing of
any unfair labor practice charges, meet and bargain
collectively in good faith with Automotive Salesmen's
Association (A.S.A.), affiliated with SIUNA,
AFL-CIO, as the collective bargaining representative of
all our employees in the appropriate unit described
below concerning rates of pay , wages , hours of
employment , and other conditions of employment, and,
if an understanding is reached, we will embody such
understanding in a signed agreement.
WE WILL NOT refuse, during the pendency or
processing of unfair labor practice charges , to meet and
bargain collectively with the above-named Union as the
aforesaid exclusive bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the Act. The
appropriate bargaining unit is:
All new and used car and truck salesmen at our
Detroit , Michigan, place of business , excluding office
clerical employees , guards and supervisors as defined
in the Act , and all other employees.
Dated By
DEAN SELLERS, 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 226-3244.