Francis Chevrolet Co.

National Labor Relations Board - Board Decisions

Jun 19, 1974

211 N.L.R.B. 740 (N.L.R.B. 1974)

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francis Chevrolet Company and Automotive, Petrole-
um and Allied Industries Employees Union, Local
618, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Help-
ers of America . Case 14-CA-7595
June 19, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
DECISION
FRANK H. ITKIN, Administrative Law Judge: This case
was tried before me at St. Louis, Missouri, on December
17, 1973. Unfair labor practice charges were filed by the
Union on September 24 and the complaint issued on
November 6, 1973. The principal issue presented is whether
Respondent Company violated Section 8(a)(1) and (5) of
the National Labor Relations Act by refusing to execute
the contract negotiated by a committee or group in its
behalf with the Charging Party Union. Upon the entire
record before me, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel, I make the following:
On March 15, 1974, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a motion to have Respondent's brief in support of
exceptions rejected.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs I and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge3 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Francis Chevrolet
Company, St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
The General Counsel filed a motion to have Respondent 's brief in
support of exceptions rejected on grounds that the brief does not conform to
Sec. 102 .46(c) of the Board 's Rules and Regulations , Series 8, as amended.
We hereby deny the motion as we find that the brief is in substantial
compliance with the Board 's Rules and Regulations . Moreover, General
Counsel has not shown that he will be prejudiced by our acceptance of the
brief. Respondent 's request for oral argument is hereby denied, as the
record and briefs adequately present the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
s Respondent has requested that the case be remanded to the
Administrative Law Judge and the record reopened for the purpose of
taking the testimony of Edward Hayward, who was not called to testify at
the hearing held in this proceeding . Since Respondent does not contend that
Hayward was previously unavailable to testify or that Respondent has
newly discovered evidence , we shall deny the request . See Sec . t02.48(d)(l),
Board 's Rules and Regulations , Series 8, as amended.
FINDINGS OF FACT
1. JURISDICTION
It is undisputed and I find and conclude that Respon-
dent Company, a Delaware corporation, maintains its
principal office and place of business in St. Louis; that
during the prior year Respondent sold and distributed at
its place of business automobiles, trucks, and related
products and services valued in excess of $500,000; that
Respondent purchased and caused to be transported to St.
Louis automobiles, trucks, and related goods and materials
valued in excess of $50,000 directly from locations outside
the State of Missouri; and that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. It is also undisputed and I find and
conclude that Charging Party Union, Local 618, is a labor
organization within the meaning of Section 2(5) of the Act.
Respondent admits in its answer and I find and conclude
that Les Francis Sr., the Company's president, is a
supervisor and agent within the meaning of the Act.
Further, Respondent admits that Les Francis, Jr., is the
Company's vice president and general manager, "but
denies that he is or has been a supervisor or agent of
Respondent for any of the purposes contemplated by the
complaint." The evidence pertaining to this and related
contentions is discussed below.
II. THE EVENTS CULMINATING IN RESPONDENT'S
REFUSAL TO EXECUTE THE COLLECTIVE-BARGAINING
AGREEMENT
Charles W. Isbell, president of Charlie's Chevrolet,
testified that for a number of years his company has been a
member of a multiemployer bargaining association named
the Greater St. Louis Automotive Association, Inc. (the
Association); that there are some 90 employer-members of
the Association; and that the Association negotiates in
behalf of its constituent members collective-bargaining
agreements with, inter alia, the Charging Party Union.
Isbell explained that the multiemployer bargaining unit
involved includes , inter alia, the employer-members'
automotive garage parts employees, garage specialists,
general garage laborers, used-car cleanup and lot employ-
ees, and porters and/or sweepers (see G.C. Exh. 7-art. 1,
p. 1; art XXI, pp. 6-7). However, the office clerical
employees of the Association's member-employers are not
included in this multiemployer bargaining unit. In addi-
211 NLRB No. 110
FRANCIS CHEVROLET COMPANY
tion , Isbell testified that during 1971 the Charging Party
Union was recognized as the collective-bargaining agent
for a unit consisting of office clerical employees at
Charlie 's Chevrolet. The Charging Party Union similarly
has been recognized by other dealer employers in the St.
Louis area as bargaining agent for their respective office
clerical employees . Accordingly, the Charging Party
Union, in addition to bargaining with the Association with
respect to the multiemployer unit described above, also
bargained separately with Charlie's Chevrolet and a
number of other employer dealers in the St . Louis area in
behalf of their respective office clerical employees.
During May 1973, as Isbell testified , the dealer employ-
ers, whose office clerical employees were represented by
the Charging Party Union, held a meeting in order to
"discuss whether or not they wanted to operate as one .. .
for joint bargaining procedure" with respect to their office
clericals . Present at this meeting were , inter alia, the 14
dealer employers , including Charlie's Chevrolet and
.Respondent Francis Chevrolet Company, whose office
clerical employees were represented by Charging Party
Union.' Isbell testified that at this May 1973 meeting the
"consensus seemed to be that ... they [the dealers]
would" have "joint bargaining " for their office clerical
employees , "but they [the dealers] were a little at odds as to
when they'd do it and how they would go about it, and
they'd have some future meetings."
About September 7, 1973, shortly after the multiemploy-
er association had negotiated its new 1973-1976 contract
with the Charging Party Union, Isbell received a notice
that there would be a meeting at the office of Ed Hayward,
executive secretary of the Association , in order "to discuss
this problem once more"-that is , group or unit bargaining
for the office clerical employees . Isbell explained:
All 14 dealers, I understand, were given a notice to
attend this meeting. We did all attend. . . . Ed
Hayward started the meeting and he made the point
that he thought we should definitely operate as a unit
for negotiating purposes, if we didn't, that [Union
Representative ] Carl Gibbs would pick one dealer, sign
him up for whatever he could get out of him, figuring
he'd pick a weak one and then the rest of us would have
to follow suit.
At this meeting, the representatives of the 14 dealer
employers discussed, inter alia, that there were three
dealers (including Respondent Francis Chevrolet Compa-
ny) who previously had not signed the so-called "standard"
agreement, referred to as Appendix A, with the Charging
Party Union for their office clericals and, in the past, had
I The 14 dealer employers involved are:
I. Francis Chevrolet Company
2. McKelvey-Kessler Oldsmobile
3. Charlie's Chevrolet
4. St. Ann Motors, Inc.
5. Castle-Wilson Buick
6. Downtown Ford
7. Jack Mathews Chevrolet
8. George Miller Chevrolet
9. Signal Dodge Sales, Inc.
10, Kaiser Chevrolet
11. King Dodge, Inc.
741
received more favorable wage rates from the Union. Isbell
testified:
... they [the dealers] had discussions back and forth
on that, and Ed Hayward mentioned that he talked
with [Union Representative] Gibbs, and that he felt
and thought from what Gibbs had said that it would
have to definitely be a deal where we would negotiate
from the previous "Appendix A" [agreement] upward,
and that Carl Gibbs was not going to go along with any
deal whereby . . . somebody had a lesser [pay scale]
amount, it wouldn't be fair to the other dealers... 2
Isbell thereupon told the assembled employers that he "felt
that we had enough discussion and that we should get
something going, . . . and get the thing rolling so we could
get a contract and get it over with." Thereafter, Hayward
"wanted to know who would go along, and all 14 [dealer
employers] agreed that they would go along by a show of
hands ...." Nothing was said at this meeting about
reserving the right for individual dealer employers to ratify
any contract subsequently negotiated with the Charging
Party Union. The dealer employers selected a bargaining
committee and Isbell was named chairman of the commit-
tee. The committee was instructed by the employer dealers
"to make the best deal we could."
Shortly following the above meeting of the 14 dealer
employers, Isbell telephoned Union Representative Gibbs
and informed Gibbs "that we had agreed to operate as a
unit" with respect to the office clericals. Isbell scheduled a
meeting with Gibbs in order to discuss the procedure for
future negotiations. The following week, Isbell and Gibbs
met and "laid the ground rules as to how we would attempt
to work the contract." Thereafter, on or about September
12, 1973, the committee for the 14 dealer employers met
with Gibbs at the Chase Hotel in order to negotiate a
contract for the office clerical employees of the 14 dealer
employers. The committee included Isbell of Charlie's
Chevrolet, Ebeling of Downtown Ford, Gerber of St.
Ann's Dodge, and Castle of Castle-Wilson Buick. The
committee discussed with Gibbs, inter alia, wages, welfare
and pension programs, the status of part-time employees,
new classifications, and "starting wages." An agreement
referred to as Appendix A (see G.C. Exh. 9) was negotiated
that day. Isbell recalled that at both meetings with Gibbs,
it was made clear "that we were operating as a
group"-"the 14 dealers were represented by this Commit-
tee."
Isbell testified that after the office clerical employees of
the 14 dealer employers-including Respondent Francis
Chevrolet's office clerical employees-"ratified the deal,"
12. Mallory Buick
13. Merollis Chevrolet
14. Weber Chevrolet Company
2 Isbell recalled that Hayward stated to the assembled 14 dealer
employers:
... there were three dealers that didn 't pay the standard deal, and
that Gibbs had already informed him that there was going to be a deal
whereby ... everybody was going to go from "Appendix A" on with
whatever was negotiated on top of it for a contract and there wasn't
going to be any more free rides as far as dealers not paying the
standard deal Ifor their office clerical employees).
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee member Gerber and committee chairman Isbell
telephoned the various dealers in order to "get them to
ratify this contract." Isbell telephoned Les Francis, Sr.
Isbell explained to Les Francis, Sr., the various provisions
of the agreement. Les Francis, Sr., said: ". . . I don't pay
the amount that is standard now . . . where do I stand
.... Isbell replied to Les Francis, Sr.: ".. . I assumed
that as we were operating as a group that he [Francis, Sr.]
paid from Appendix A," the standard contract. Les
Francis, Sr., then asserted to Isbell "that his son [Les
Francis, Jr.] was at the [September 71 meeting [of the
dealers ] . . . as an observer" and he was not bound by the
contract which the committee had negotiated .3 However,
Les Francis, Sr., also stated to Isbell: "I think I'm hung."
Isbell specifically recalled that at the September 7 meeting
of the 14 dealer employers, Les Francis, Jr., was present
and in fact had "voted for it and agreed to it ... to work
as a unit."
Carl E. Gibbs, president of Charging Party Union,
corroborated in substantial part the testimony of Isbell as
stated above. Gibbs explained that during late January
1973 he had obtained signed union membership cards from
7 of Respondent's approximately 12 office clerical employ-
ees; that he then met with Les Francis, Sr., "and asked him
to recognize" the Charging Party Union as the designated
bargaining agent for Respondent's office clerical employ-
ees; that Les Francis, Sr., refused to do so; that Gibbs
obtained two more signed union authorization cards from
Respondent's office clerical employees; and that, shortly
thereafter, Gibbs again met with Les Francis, Sr., and
"asked for recognition." Gibbs recalled:
And I asked for recognition . . . with the nine cards,
and showed them to Mr. Francis [Sr.] He took them
and looked at them and he refused to recognize me
.... And I informed him if he didn't recognize me
before the day was over, I would put pickets on him the
next morning, and he agreed to call me later on in the
day.
Francis, Sr., and Gibbs met again later that day and
Francis, Sr., signed a memorandum, dated January 24,
1973, stating in part:
. . . This is to certify that Francis Chevrolet recogniz-
es [Charging Party Union] as bargaining agent for the
office employees, and hereby agrees to negotiate a
contract covering all the clerical employees in the
office.
Gibbs further explained that, at the time, Respondent
Francis Chevrolet Company was a party to the mu'"iem-
ployer bargaining contract between the Association and
Charging Party Union; that the office clerical employees of
t'iie dealer employers were not included in the multiem-
ployer unit; and that, as a result , Charging Party Union
negotiated separate contracts with various employer
dealers for their office clericals, which agreements were
referred to as "Appendix A to this [multi-employer]
contract."
Gibbs and Francis, Sr., thereafter bargained over the
terms of an agreement or "Appendix" for Respondent's
office clerical employees. Gibbs testified that "at that time
we were under the wage freeze and you couldn't bring
[Respondent's office clerical employees] all the way up to
the top rate .. ," as provided in the Union's standard
agreement or appendix for office clerical employees. The
parties, however, adjusted and settled their differences over
wage scale . And on or about February 1, 1973, Les
Francis, Sr., signed the Union's "Participation Agreement"
in order "to obtain retirement benefits" for the office
clerical employees .4 The application for coverage under
this pension plan recites, inter aka, that the first agreement
between the parties was effective as of February 1, 1973
(G.C. Exh. 4), and, as noted, the Participation Agreement
is similarly dated February 1, 1973. Thereafter, Respon-
dent made the periodic payments to the pension fund for
its office clerical employees. In addition, as the parties had
agreed, union dues for the office clerical employees were
deducted pursuant to checkoff provisions and mailed to
the Union.5 The parties also discussed and agreed upon a
vacation plan and sick leave provisions.
According to Gibbs, Les Francis, Sr., and he had agreed
upon "an oral appendix" or agreement for Respondent's
office clerical employees. Gibbs explained:
. . I [Gibbs] had asked him [Francis, Sr.] to sign this
appendix, but he refused because it did have the
standard wages in it, but it had a clause that said, with
wage controls [the rates provided] would not go in
effect if they were not approved, but he refused to sign
that...
Gibbs, however, added that Les Francis, Sr., "did put the
rates in effect that were negotiated." Les Francis, Sr.,
deducted union dues from office clerical employees' wages
as agreed; he forwarded and continues to forward these
amounts to the Union. Les Francis, Sr., also has made and
continues to make contributions for the office clerical
employees to the agreed-upon pension fund.
Gibbs also recalled that during May 1973 he spoke with
Ed Hayward, the executive secretary for the association,
about multiemployer or group bargaining with respect to
the office clerical employees. Gibbs explained:
' Isbell testified
I explained the deal [to Les Francis, Sr ] and when I asked for
ratification, why, as I recall, he said no, that he wasn't going to because
of the fact his son was there as an observer
4 The Participation Agreement, dated February 1, 1973, provides in part
Whereas , the Union and the Employer have entered into an agreement
which provides for participation in the Pension Fund in order to
obtain retirement benefits for employees represented by the Union and
employed by the Employer
6 This Participation Agreement shall continue in full force and effect
during the life of the current collective bargaining agreement
between the parties and during all renewals and extensions
thereof The obligation to make contributions to the Fund
should be terminated when and if such contributions are no
longer required by a collective bargaining agreement between
the parties
5 Gibbs testified that Respondent 's clerical employees had signed
appropriate authorizations for checkoff "at the same time the contract was
concluded "
FRANCIS CHEVROLET COMPANY
I [Gibbs] asked him [Hayward] to see if he could get
the dealers who had office employees that belonged to
our Union together to see if they would agree to a labor
committee so I could negotiate a contract with a group
instead of individuals, the same as he did with the
dealers [in the association] ... .
Hayward then agreed that "he would try to get the dealers
together and see if they would do it." Thereafter, about
September 7, 1973, Isbell of Charlie 's Chevrolet telephoned
Gibbs. Isbell apprised Gibbs:
... the dealers had a meeting and they chose a labor
Committee , and they chose [Isbell] as the chairman,
and that's the reason he [Isbell] was contacting me
(Gibbs].
Isbell explained to Gibbs that Isbell had been chosen as
chairman of "the negotiating Committee to negotiate the
contract" with Gibbs for the office clerical employees of
the 14 dealer employers, as named supra. Isbell made clear
to Gibbs that he represented "all 14 of them." Gibbs and
Isbell met on or about September 10, 1973. The two
"discussed the procedures for the negotiations." Gibbs, as
he testified, asked Isbell at that meeting "who he
represented." Isbell responded: "He represented all 14
dealers ." A meeting with the full committee and Gibbs was
then scheduled.
Thereafter, on or about September 12, 1973, the full
committee met with Gibbs at the Hotel Chase. During the
meeting, Gibbs "specifically asked [Isbell] in front of all
the Committee did he [Isbell] represent all of the [dealer
employers involved] and . . . specifically asked about
Francis and" two other of the 14 dealer employers. Gibbs
asked about the three dealer employers because, as Gibbs
testified , "at that time their [wage] rates were lower than
the other . . . 11 dealers . . . and [Gibbs] wanted to know
if he [Isbell] represented them ...." Gibbs apprised
Isbell and the committee that the rates of Francis and the
two other dealer employers "would have to come up to the
rest of the people and he [Isbell] assured me [Gibbs] that
he did represent all 14 people." The parties negotiated
over, inter alia, vacations, sick leave, wage scale, and
related items . They reached an agreement that same day. A
lower, special rate was agreed upon for "new employees
coming in ...." Gibbs added:
This agreement was the appendix which was tied onto
the [multiemployer] standard automotive agreement
Gibbs identified General Counsel's Exhibit 9 as "the
appendix that we negotiated" which was "typed up and
became the contract to cover these office employees, the
appendix to the standard automotive agreement." The
effective period of the Appendix is the same 3-year period
(1973-76) covered by the multiemployer contract with the
6 G.C. Exh. 10 is the "Standard Automotive Agreement" negotiated by
the association and the Charging Party Union for the larger multiemployer
unit, as referred to above (effective August 1, 1973, through July 31, 1976).
Gibbs explained that the "Standard Automotive Agreement is, in part,
applicable to the agreement or "appendix" covering the office clericals of
743
association. The agreement or "appendix" recites in its
blank form, in part as follows:
APPENDIX "A"
To the Standard Automotive Agreement between
St. Louis, Missouri, party of the first part,
and AUTOMOTIVE, PETROLEUM AND ALLIED
INDUSTRIES EMPLOYEES UNION, LOCAL NO.
618, party of the second part, for the period of
1973-1976. All of the terms and conditions set out in
the Standard Form Agreement shall apply to the
employees covered hereunder, except those which may
be changed by the following provisions:
This Appendix "A" shall cover all the office
employees of in classifications listed
herein, and the following rates shall apply:
CLASS I. Office Manager and Accountants:
CLASS II. Secretary, Jr., Accounting Clerk, IBM
Operators: CLASS III. Stenographer, Bookkeep-
ing Machine Operator: CLASS IV. Switchboard
Operator, Cashiers & Billers : CLASS V. File
Clerk, Switchboard-Receptionist, Mailing and
Follow-up: CLASS VI. Part-time Employees:
All present employees shall receive 25 cents
hourly increases over previous Appendix "A"
classification, effective 8-1-73, 25 cents effective
8-1-74 and 25 cents effective 8-1-75.
VACATIONS: Office employees shall receive
two weeks vacation after one year of employment
and three weeks vacation after fifteen years of
employment . Employees hired after 9-15-73,
vacations shall be the same as the Standard
Automotive Agreement.
SICK LEAVE: Office employees covered by this
Appendix "A" shall be entitled to two weeks sick
leave , starting on the third day of illness, at the
regular rate of pay.
The foregoing provisions to become effective
and to continue during the term of
the Standard Automotive Agreement for the
period 1973-1976.
FOR THE COMPANY:
By
Date
6
FOR THE UNION:
By
Gibbs testified that the office clericals of the 14 employer
dealers met and ratified the above contract or Appendix A.
Thirteen of the 14 dealer employers also signed the
the 14 dealer employers . Thus, as Gibbs noted, the Standard Automotive
Agreement, among other things, "covers the dues deduction procedure, the
grievance procedure , the holidays land] the hours worked" for the office
clerical employees.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts or Appendix and mailed them to Gibbs. Gibbs
explained that Isbell notified him that "he was having
trouble with Jack Mathews Chevrolet and Francis Chevro-
let." Mathews, however, signed the agreement. And, on
September 21, 1973, Gibbs sent a letter to Respondent
Francis Chevrolet Company requesting the employer to
sign the enclosed "Appendix A to the Standard Automo-
tive Agreement, covering the office employees for the
period 1973-1976." Les Francis, Sr., by letter dated
September 24, 1973, replied to Gibbs, as follows:
I was somewhat surprised to receive this letter and
copies of your proposed Appendix, as we have not yet
negotiated any understanding or agreement with Local
618 with respect to our office employees, nor have we
authorized anyone to negotiate on our behalf with
respect to our employees.
We are prepared to negotiate with you a collective
bargaining agreement for our office employees. Please
contact me at your convenience, so that we may
arrange for this purpose.?
III. DISCUSSION
The Board, with approval of the courts, has held
(Western States Regional Council No. 3, Woodworkers v.
N. L. R. B., 398 F.2d 770, 773-776 (C.A.D.C., 1968):
... the test to be applied in determining the status of
a multiemployer unit is "whether the members of the
group have indicated from the outset an unequivocal
intention to be bound in collective bargaining by group
rather than individual action, and whether the union
representing their employees has been notified of the
formation of the group and the delegation of bargain-
ing authority to it, and has assented and entered upon
negotiations with the group's representatives. See
Eerden Company, 154 NLRB 496, 499 (1965); The
Kroger Company, 148 NLRB 569, 573 (1964).
"On the ultimate finding of employer intent, no express
agreement to be bound by group action was required .. .
although that sometimes exists . . . ... NL.R.B. v. Bagel
Bakers Council of Greater New York, 434 F.2d 884, 886-887
(C.A. 2, 1970). And, as the Board stated in Wm. T Kirley
Lumber Company, 189 NLRB 130, 131 (1971):
r Les Francis , Sr , testified , inter a/a, that "there is some question about
whether [the Charging Party Union] represents our office employees or
not." He claimed that he recognized the Union during early 1973 as
bargaining agent for Respondent 's office employees because he "did not
feel that we could afford a strike at that time " Les Franc - Sr, also
asserted that only he "has the authonty to approve labor contracts" for
Respondent, that during May 1973 he attended "a meeting to discuss the
advisability of the dealers who had office workers represented by the
Teamsters to determine if the dealers wanted to bargain with the Union
jointly or as a group ", that he then apprised the dealer owners that he
"did not want to participate in any point negotiations ; that he
subsequently sent his son , Les Francis , Jr, to the meeting of 14 employer
dealers in September 1973 "strictly as an observer" and so advised Ed
Hayward; and that he similarly apprised Isbell that "nobody speaks for me
on labor except me "
Les Francis , Jr, also asserted , inter a/a, that he was instructed by his
father to attend the September 1973 meeting of dealer employers "strictly as
an observer " He admittedly voted at the meeting Les Francis , Jr, asserted
that he voted " to explore the possibility of negotiating a better contract
While the 1967-1970 agreement entered into by [the
Company ] states it was "by and between" the Employ-
er and the Union, was signed by these parties, and
appears to grant the Union recognition as representa-
tive of his employees, these details are merely incidental
byproducts of an established multiemployer bargaining
relationship. And, in circumstances such as those
present here, the Board does not give controlling weight
to the technicality of separate, signed agreements for
purposes of determining the existence or nonexistence
of multiemployer units ... .
Finally, where as here, employers have evidenced an
intention to be bound in collective bargaining by group
action, that intent is not defeated by the association's
lack of bylaws or formal organization, or by changes in
its membership . . . [footnotes and citations omitted].
And see N. L.R.B. v. Bagel Bakers 'Council of Greater
New York, supra at 887.
Applying these principles here, I find and conclude that
Respondent Francis Chevrolet Company violated Section
8(a)(1) and (5) of the Act by refusing to execute the
collective-bargaining agreement which had been negotiat-
ed in its behalf with the Charging Party Union on
September 12, 1973, by the committee for the group of 14
employer dealers. The credited evidence recited above
establishes that the 14 employer dealers, including Respon-
dent Francis Chevrolet Company, manifested "an unequi-
vocal intention to be bound in collective bargaining by
group rather than individual action" and the Charging
Party Union, "representing their [office clerical employees ]
, assented and entered upon negotiations with the
group's representatives." Western States Regional Council
No. 3, Woodworkers v. N.L.R.B., supra Charles Isbell,
president of 1 of the 14 employer dealers involved, credibly
testified that representatives of the 14 dealer employers met
in May 1973 in order to "discuss whether or not they
wanted to operate as one" with respect to their office
clerical employees. The 14 employer dealers were members
of a larger multiemployer association which bargained with
Charging Party Union for a unit consisting of, inter aka,
the employer-members' garage parts employees, garage
specialists, general garage laborers, used car cleanup and
lot employees, and porters and/or sweepers. The employer
d:,alers also had separate collective-bargaining agreements
with Charging Party Union for their respective office
" Les Francis , Jr, is vice president and general manager of
Respondent Company
The testimony of Gibbs and Isbell, as stated above , is in large part
mutually corroborative The testimony of Les Francis, Sr, and Les Francis,
Jr, in part substantiates the testimony of Gibbs and Isbell I find and
conclude , on the record before me, including the demeanor of the witnesses,
that the testimony of Gibbs and Isbell as stated above is credible and
trustworthy Insofar as the testimony of Les Francis, Sr, and Les Francis,
Jr, conflicts with the testimony of Gibbs and Isbell as stated above , I credit
the latter as more reliable , trustworthy , and complete In particular , I do not
credit Les Francis , Sr 's and Les Francis , Jr 's assertions that Les Francis,
Jr, attended the meeting of employer dealers on September 7 only as an
observer or that Les Francis , Sr, communicated this alleged limitation of
authority to the dealer employers or their representatives Further, I do not
credit Les Francis, Sr's assertion that he apprised the dealers at the May
1973 meeting that he "did not want to participate in anyjoint negotiations
" Nor do I credit the assertion of Les Francis, Jr , that he only voted at
the September 7 meeting "to explore the possibility" of negotiating a
contract with Charging Party Union
FRANCIS CHEVROLET COMPANY
clerical employees. These separate collective-bargaining
agreements were styled as Appendix A to the multiemploy-
er association 's "Standard Automotive Agreement." And,
as Isbell credibly explained, the "consensus" at the May
1973 meeting of the 14 employer dealers was that they
wanted, in effect, unit or group bargaining for their office
clerical employees. Thereafter, on September 7, 1973, after
the multiemployer association had negotiated its 1973-76
contract with the Charging Party Union, the 14 employer
dealers met again in order to discuss "operat[ing] as a unit
for negotiating purposes" with respect to their office
clericals .8 Isbell urged the dealer employers to "get the
thing rolling so we could get a contract and get it over
with." And, the representatives of all 14 dealer employers,
including Les Francis, Jr., attending for Respondent,
"agreed that they would go along by a show of hands
...." A bargaining committee was selected and instruct-
ed by the group "to make the best deal we could." The
committee , under the chairmanship of Isbell, met with
Union Representative Carl Gibbs. Isbell credibly testified
that the 14 dealer employers "had agreed to operate as a
unit" or "group" with respect to their office clericals. A
contract, styled as Appendix A to the multiemployer
association 's 1973-76 standard agreement, was negotiated
for the office clerical employees of the 14 dealer employers.
Thereafter, the office clerical employees of the 14 dealer
employers ratified the agreement (Appendix A) and 13 of
the 14 employer dealers also signed the agreement. Union
Representative Carl Gibbs credibly testified that, previous-
ly, he had asked Ed Hayward, executive secretary of the
larger multiemployer association, "to see if he could get the
dealers who had office employees that belonged to the
Union together to see if they would agree to a labor
committee so [Gibbs] could negotiate a contract with a
group instead of individuals, the same as he did with the
dealers" for the larger multiemployer association. Hayward
had agreed that he "would try to get the dealers together"
and, thereafter, on September 7, 1973, committee chairman
Isbell notified Gibbs that "the dealers had a meeting and
they chose a labor committee ...." Isbell apprised Gibbs
at their September meeting that "he represented all 14
dealers ." And, as stated, the committee and Gibbs
thereupon negotiated and agreed upon a new agreement or
Appendix A.
On this record, I reject counsel for Respondent's
assertion that Respondent "Employer has never joined a
multiemployer bargaining group with respect, to office
employees or expressed an intention to be bound by any
contract negotiated by such a group." As stated, Company
President Les Francis, Sr., attended the May 1973 meeting
of the 14 employer dealers where the subject of multiem-
ployer or group bargaining for the office clericals was first
discussed. Les Francis, Sr., sent his son, Les Francis, Jr.,
vice president and general manager of the Company, to the
September 7, 1973, meeting . The subject of multiemployer
or group bargaining was again discussed. Ed Hayward,
s As found , the meeting was held in the office of Ed Hayward, executive
secretary of the larger multiemployer association . Hayward "made the point
that [the 14 dealers] should definitely operate as a unit for negotiating
purposes ... .
9 1 have, as noted above, discredited Respondent's assertions , inter alia,
745
executive secretary of the Association, made clear to the 14
employer dealers,
that [Union Representative Gibbs] had already
informed [Hayward] that ... everybody was going to
go from "Appendix A" on with whatever was negotiat-
ed on top of it for a contract and there wasn't going to
be any more free rides as far as dealers not paying the
standard deal [for their office clericals].
A vote was called for in order to determine "who would go
along" and Les Francis, Jr., and the representatives of the
13 other dealer employers voted for multiemployer or
group bargaining by a show of hands. After the new
agreement or Appendix A had been negotiated by the
committee for the 14 employer dealers with Charging Party
Union, Les Francis, Sr., asserted: ". . . he wasn't going to
sign because of the fact that his son was there [at the
September 7 meeting] as observer ...." This alleged
limitation of authority was never communicated to the 13
other employer dealers, their representatives or the
Charging Party Union until after the new contract had
been negotiated. Under settled principles of agency law,
Respondent Company, in the circumstance of this case, is
responsible for the conduct and participation of its vice
president and general manager . See, e .g., N.L.R.B. v. Local
815, Teamsters, 290 F.2d 99, 103-104 (C.A. 2, 1961);
N. L.. .R.B. v. Local 3, Electrical Workers [N.Y. Tele. Co.],
467 F.2d 1158 (C.A. 2, 1972).9
In addition, counsel for Respondent argues that the
"General Counsel has failed to prove that the Charging
Party has ever represented a majority of its office clerical
employees ...: ' The credited evidence of record is
contrary to this somewhat belated contention. Thus, during
January 1973, the Charging Party Union had been
designated by 9 of Respondent's approximately 12 office
clerical employees as their bargaining agent. Respondent
signed a memorandum recognizing the Charging Party
Union "as bargaining agent for the office employees."
Respondent negotiated an oral agreement with the Charg-
ing Party Union for the office clericals on or about
February 1, 1973 and, thereafter, complied with the terms
of the agreement.10 Indeed, as late as September 24, 1973,
Respondent apprised the Charging Party Union that "we
are prepared to negotiate with [the Charging Party] a
collective bargaining agreement for our office employees."
I find and conclude that the Charging Party Union had
been duly designated as bargaining agent by a majority of
Respondent's office clerical employees during early 1973
and Respondent thereafter recognized and bargained with
Charging Party Union as collective-bargaining agent for
these employees. Further, I find and conclude that
Charging Party Union had been duly recognized by the 13
other dealer employers as bargaining agent for their office
clerical employees and that, at all times material, Charging
Party Union in fact represented a majority of employees in
that Francis, Jr., attended the September 7 meeting only as an observer or
that his alleged limitation of authority was communicated to the dealers or
the Union before the agreement was negotiated and agreed upon.
10 Charging Party Union also had separate collective-bargaining agree-
ments for the office clericals of the other 13 employer dealers.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit consisting of all office clencal employees of the
group of 14 employer dealers involved herein."
There is testimony of record by Committee Chairman
Isbell, in part as follows:
... Well, as we [Union Representative Gibbs and
committee chairman Isbell] discussed the contract, we
kept mention[ing] the points that we were trying to win,
that we had to take this back to the dealers to get their
approval on the thing. So as we completed our deal,
Gibbs was to take his deal to the office girls and we
were to take our deal to the . . . dealers ... .
The question is raised, does this and related testimony
manifest an intention of the parties not to be bound to any
agreement without individual dealer ratification. On this
record, I am persuaded that the parties did not contem-
plate such a condition to agreement. Thus, as stated, at the
September 7 meeting of the group of 14 dealer employers,
Hayward made it clear that Gibbs "had already informed
[Hayward] that everybody was going to go from Appendix
A on . . . there wasn't going to be anymore free rides as
far as dealers not paying the standard deal ...." The
group of 14 employer dealers unanimously voted for
multiemployer or a unit bargaining. A committee was
selected and instructed "to make the best deal [the
committee] could." No requirement of individual employer
ratification was discussed. Thereafter, when committee
chairman Isbell and Union Respresentative Gibbs met, it
was made clear that Isbell represented "all 14 of them."
Gibbs "specifically asked [Isbell] in front of all the
Committee did he represent all of the [dealer employers]
and . . . specifically asked about" Respondent and two of
the other 14 dealer employers. Gibbs was assured that the
committee represented all 14 of the employers. According-
ly, I would find and conclude that the group of 14
employer dealers and the Charging Party Union did not
contemplate any subsequent ratification of the agreement
by individual dealers as a condition of agreement. Rather,
the testimony stated above indicates that Isbell and Gibbs
contemplated that each of the individual dealers would
subsequently sign "Appendix A" after the committee and
the Union had agreed upon its terms. Cf. Houchens Market
of Elizabethtown, Inc. v. N.L R.B., 375 F.2d 208 (C.A. 6,
1967), enfg. 155 NLRB 729, 730 (1965); M & M
Oldsmobile, Inc., 156 NLRB 903, 905 (1966), enfd. 377 F.2d
712 (C.A. 2, 1967). And, "in the circumstances such as
present here, the Board does not give controlling weight to
the technicality of separate, signed agreements for purpos-
es of determining the existence or nonexistence of ' _ulti-
employer units. . . ... Wm. T. Kirley Lumber Co., 189
NLRB 130, 131.12
In sum, I find and conclude that, at all times material,
the Charging Party Union has been and is the representa-
tive for collective-bargaining purposes of all office clencal
employees of the group of 14 employer dealers named
above, including Respondent; that this unit is an appropri-
ate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act; 13 that Respondent has
been and is now refusing to bargain with the Charging
Party Union as the exclusive bargaining representative of
the employees in said multiemployer unit by refusing to
execute the collective-bargaining agreement negotiated in
its behalf by the Committee with the Charging Party Union
on or about September 12, 1973; and that Respondent has
thereby violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Francis Chevrolet Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Automotive, Petroleum and Allied Industries Em-
ployees Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, the Charging Party Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All office employees of the following 14 employer
dealers, employed at the dealerships stated herein, exclud-
ing all salesmen, partsmen, porters, mechanics, profession-
al employees, guards and supervisors as defined in the Act
and all other employees, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
Francis Chevrolet Company,
Lindbergh & St. Charles Rock Road,
St. Louis, Missouri
McKelvey-Kessler Oldsmobile,
9291 W. Florissant,
St. Louis, Missouri
Charlie's Chevrolet,
3721 S. Grand,
St. Louis, Missouri
St. Ann Motors, Inc.,
10805 St. Charles Rock Road,
St. Louis, Missouri
11 Counsel for Respondent 's related contention that Les Francis, Sr,
executed a recognition memorandum with Charging Party Union during
early 1973 "under duress" is contrary to the credible evidence of record Les
Francis , Sr., with the advice of counsel , voluntarily granted recognition to
Charging Party Union during early 1973, as recited above
12 Counsel for Respondent also argues that "the increases negotiated by
the group and the union clearly violate Wage Price Guidelines , at least as to
Francis " The evidence of record does not sufficiently support this general
assertion . Moreover, as the Board stated in Washington Employers, Inc, 200
NLRB No 117 (1973).
Respondents thus cannot now complain of this Board 's requiring them
to pay what they agreed upon , first during the negotiations, and again
after Phase II went into effect . This should not be construed however,
as a determination regarding the obligations of Respondents, or indeed
of other employers in future cases, should the Pay Board rule that it is
not in the interest of the economic stabilization program to allow the
continued payment of the full amount of the negotiated increase
13 The propriety of a bargaining unit consisting of office clerical
employees is not seriously disputed by Respondent Here, the office clerical
employees of the group of 14 employer dealers have been excluded from the
Association's larger multiemployer unit, they have interests and working
conditions which substantially differ from the production and maintenance
and other employees , and, under all the circumstances of this case,
constitute an appropriate bargaining unit Cf. General Electric Co, 107
NLRB 70 (1953)
FRANCIS CHEVROLET COMPANY 747
Castle-Wilson Buick,
490 N . Kingshighway,
St. Louis, Missouri
Downtown Ford,
2222 Market St.,
St. Louis, Missouri
Jack Mathews Chevrolet,
2244 S . Kingshighway,
St. Louis , Missouri
George Miller Chevrolet,
3900 Lemay Ferry Road,
St. Louis, Missouri
Signal Dodge Sales, Inc.,
7127 S. Lindbergh,
St. Louis, Missouri
Kaiser Chevrolet,
5400 Natural Bridge,
St. Louis, Missouri
King Dodge, Inc.,
3300 S. Kingshighway,
St. Louis, Missouri
Mallory Buick,
10950 Page Ave.,
St. Louis, Missouri
THE REMEDY
Having found that Respondent Company has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act, I shall
recommend that it be ordered to cease and desist from
engaging in the violations found or in like or related
conduct and take certain affirmative action designed to
effectuate the purposes of the Act. Respondent will be
directed to execute forthwith the collective-bargaining
agreement negotiated in its behalf with the Charging Party
on September 12, 1973, and to bargain in good faith with
the Charging Party Union as the exclusive bargaining
representative of all the employees in the unit described
above. Respondent will also be directed to make whole and
reimburse its employees in the above unit for any financial
losses sustained by them as a result of Respondent's
unlawful refusal to execute the collective-bargaining
agreement negotiated in its behalf on or about September
12, 1973, together with interest computed in accordance
with the Board's decision in Isis Plumbing & Heating Co.,
138 NLRB 716. Further, it will be recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary and useful to determine any
amounts of backpay due employees under the terms of this
Decision.
ORDER 14
Merollis Chevrolet,
8345 N. Broadway,
St. Louis, Missouri
Weber Chevrolet Company,
12015 Olive Street Road,
St. Louis, Missouri
4. At all times material Charging Party Union has been
and is the representative for the purposes of collective
bargaining of the employees in the multiemployer unit
described above and, by virtue of Section 9(a) of the Act,
has been and is now the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
5. Since on or about September 12, 1973, Respondent
has been and is now refusing 'to bargain with the Charging
Party Union as the exclusive collective-bargaining repre-
sentative of all the employees in the unit described above,
in that Respondent has been refusing and continues to
refuse to execute the collective-bargaining agreement
negotiated in its behalf by a committee duly established
and created by the group of 14 dealer employers for that
purpose, in violation of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
Respondent Francis Chevrolet Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Charging
Party Union, Automotive, Petroleum and Allied Industries
Employees Union, Local 618, Affiliated With International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-
bargaining representative of all the employees in the
multiemployer unit described below:
All office employees of the following 14 employer
dealers [see Conclusions of Law 31 employed at the
dealerships stated herein, excluding all salesmen,
partsmen, porters, mechanics, professional employees,
guards and supervisors as defined in the Act and all
other employees:
(b) Refusing to execute the collective-bargaining agree-
ment negotiated in Respondent's behalf on or about
September 12, 1973, by the Committee of the group of said
14 employer dealers.
(c) In any like and related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
1" In the event no exceptions are filed as provided by Sec. 102.46 of the provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Rules and Regulations of the National Labor Relations Board, the findings, Board and become its findings, conclusions, and order, and all objections
conclusions , recommendations , and recommended Order herein shall, as thereto shall be deemed waived for all purposes.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Execute forthwith the collective-bargaining agree-
ment negotiated in its behalf on or about September 12,
1973, by the Committee of the group of said 14 employer
dealers.
(b) Bargain in good faith with Charging Party Union as
the exclusive bargaining representative of all the employees
in the unit described above.
(c) Make whole its employees in the above unit for any
financial losses sustained by them as a result of Respon-
dent's refusal to execute the collective-bargaining agree-
ment negotiated in its behalf on or about September 12,
1973, in the manner set forth in this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in the Decision.
(e) Post at its offices and facilities in St. Louis, Missouri,
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the Regional
Director for Region 14, shall after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places, and be maintained for a period of
60 consecutive days. Reasonable steps shall be taken to
insure that notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
All office employees of the following 14
employer dealers employed at the dealerships
stated herein, excluding all salesmen, partsmen,
porters, mechanics, professional employees,
guards and supervisors as defined in the Act and
all other employees:
Francis Chevrolet
Company
McKelvey-Kessler
Oldsmobile
Charlie's Chevrolet
St. Ann Motors, Inc.
Castle-Wilson Buick
Downtown Ford
Jack Mathews Chevrolet
George Miller Chevrolet
Signal Dodge Sales, Inc.
Kaiser Chevrolet
King Dodge, Inc.
Mallory Buick
Merollis Chevrolet
Weber Chevrolet
Company
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their Section 7 rights.
WE WILL bargain in good faith with Charging Party
Union as the exclusive bargaining representative of all
our employees in the unit described above.
WE WILL execute forthwith the collective-bargaining
agreement negotiated in our behalf on or about
September 12, 1973, by a committee of a group of said
14 employer dealers.
WE WILL make whole our employees in the above
unit for any financial losses sustained by them as a
result of our refusal to execute the collective-bargaining
agreement negotiated in our behalf on or about
September 12, 1973, as provided in the Board's
Decision and Order.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that Francis Chevrolet Company violated the
National Labor Relations Act. We therefore notify you
that:
WE WILL NOT refuse to bargain in good faith with
Automotive, Petroleum and Allied Industries Employ-
ees Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-
bargaining representative of all our employees in the
multiemployer unit described below:
FRANCIS CHEVROLET
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4167.