Mazda of Anchorage

National Labor Relations Board - Board Decisions

Dec 15, 1980

253 N.L.R.B. 803 (N.L.R.B. 1980)

MAZDA OF ANCHORAGF
Mazda of Anchorage and United Food and Commer-
cial Workers Union, Local 1496, AFL-CIO-
CLC. Cases 19-CA-12159 and 19-CA-12174
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on March 5, 1980, in Case
19-CA-12159, and upon a charge, amended
charge, and second amended charge filed on
March 10 and April 18 and 22, 1980, respectively,
in Case 19-CA-12174, by United Food and Com-
mercial Workers Union, Local 1496, AFL-CIO-
CLC, herein called the Union, and duly served on
Mazda of Anchorage, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
19, issued an order consolidating cases and consoli-
dated complaint and notice of hearing on April 23,
1980, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(1), (3), and (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amend-
ed. Copies of the charges nd consolidated com-
plaint and notice of hearing before an administra-
tive law judge were duly served on the parties to
this proceeding.
The complaint alleges that on or about February
20, 1980, a majority of the following employees,
herein called the unit employees, designated and se-
lected the Union as their representative for the pur-
poses of collective bargaining:
All service department employees at Respond-
ent's Anchorage, Alaska, location; but exclud-
ing sales and clerical employees, and guards
and supervisors as defined in the Act.
The complaint further alleges that at all times
since February 20, 1980, the Union, by virtue of
Section 9(a) of the Act, has been, and is now, the
exclusive representative of the unit employees for
the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
With respect to the allegation that Respondent
has violated Section 8(a)(5) of the Act, the com-
plaint alleges that, commencing on or about Febru-
ary 22, 1980, and at all times thereafter, Respond-
ent has refused, and continues to refuse, to bargain
collectively with the Union as the exclusive repre-
sentative of the unit employees, although the Union
has requested and is requesting it to do so.
With respect to the allegation that Respondent
has violated Section 8(a)(3) of the Act, the com-
plaint alleges that on or about March 10, 1980, Re-
253 NLRB No. 112
spondent discharged two of its employees, Ray An-
derson and Lonnie Hall, because they joined, sup-
ported, or assisted the Union and engaged in con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, and in
order to discourage employees from engaging in
such activities or other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection. The complaint further alleges
that on or about March 17, 1980, Respondent rein-
stated Lonnie Hall at a job position and accompa-
nying rate of pay substantially higher than that
which Hall previously enjoyed in order to discour-
age its employees from joining, supporting, or as-
sisting the Union or engaging in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection.
With respect to the allegation that Respondent
has violated Section 8(a)(1) of the Act, the com-
plaint alleges that, at all times material herein,
George Shelley, Respondent's president, has been,
and is now, an agent of Respondent, acting on its
behalf, and a supervisor within the meaning of Sec-
tion 2(11) of the Act. The complaint further alleges
that on or about February 23 and 28, 1980, Re-
spondent, through Shelley, engaged in the follow-
ing acts and conduct at its Anchorage facility: It
threatened its employees that it would close its fa-
cility before it dealt with the Union; it proposed to
its employees that they convert their status to inde-
pendent contractors so that it could avoid dealing
with the Union; and it threatened its employees
that, any time Shelley was forced to leave the fa-
cility on union business, he would lock up the
garage and prevent employees from working.
Respondent has not filed an answer to the com-
plaint.
On July 3, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 10, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent has
not filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides, inter alia, that "All allegations in the
8(3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, if no answer is filed . . . shall be
deemed to be admitted to be true and shall be so
found by the Board .... " As set forth above, Re-
spondent has not filed an answer to the complaint;
the time within which to file having passed, we
find all allegations in the complaint to be true.
There being no issues in dispute, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is operated by Alaska Investments
Diversified, Inc., an Alaska corporation. Respond-
ent's office and principal place of business is locat-
ed in Anchorage, Alaska, where it is engaged in
the business of selling, leasing, and servicing auto-
mobiles. During the past 12 months, a representa-
tive period, Respondent, in the course and conduct
of its business operations, had gross sales of goods
and services valued in excess of $500,000, and pur-
chased and caused to be transferred and delivered
to its facilities within the State of Alaska goods and
materials valued in excess of $50,000 directly from
sources outside Alaska, or from suppliers within
Alaska which in turn obtain such goods and mate-
rials directly from sources outside Alaska.
We find, on the basis of the foregoing, that Re-
spondnet is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers Union,
Local 1496, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR I.ABOR PRACTICES
A. The 8(a)(5) Allegation
By its failure to file an answer to the complaint
in this matter, Respondent admits the following:
that the unit employees constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act; that on or
about February 20, 1980, a majority of the unit em-
ployees designated and selected the Union as their
representative for the purpose of collective bar-
gaining; that at all times since February 20, 1980,
the Union, by virtue of Section 9 (a) of the Act, has
been, and is now, the exclusive representative of
the unit employees for the purpose of collective
bargaining; that on or about February 22, 1980, the
Union requested Respondent to recognize and bar-
gain collectively with it as the exclusive repre-
sentative of the unit employees; and that since on
or about February 22, 1980, Respondent has failed
and refused, and continues to fail and refuse, to
recognize or bargain with the Union as the exclu-
sive collective-bargaining representative of the unit
employees.
Accordingly, we find that Respondent has, since
February 22, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the unit employees, and
that, by such refusal, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
B. The 8(a)(3) Allegation
On or about March 10, 1980, Respondent dis-
charged employees Ray Anderson and Lonnie Hall
because they joined, supported, or assisted the
Union and engaged in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and in order to discourage other
employees from engaging in such activities or
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection;
and on or about March 17, 1980, Respondent rein-
stated Lonnie Hall at a job position and accompa-
nying rate of pay substantially higher than that
which Hall previously enjoyed in order to discour-
age its employees from joining, supporting, or as-
sisting the Union or engaging in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection.
Accordingly, we find that by discharging em-
ployees Ray Anderson and Lonnie Hall on or
about March 10, 1980, and by reinstating Lonnie
Hall at a job position and rate of pay substantially
higher than that which Hall previously enjoyed on
or about March 17, 1980, Respondent discriminated
in regard to hire and tenure of employment to dis-
courage membership in a labor organization and
that, by such discrimination, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
C. The 8(a)(1) Allegations
On or about February 23 and 28, 1980, Respond-
ent, through its president and agent, George Shel-
ley, engaged in the following acts and conduct at
its Anchorage facility: It threatened its employees
that it would close its facility before it dealt with
the Union; it proposed to its employees that they
convert their status to independent contractors so
that it could avoid dealing with the Union; and it
804
MAZDA OF ANCH()RA(it
threatened its employees that, any time Shelley was
forced to leave the facility on union business, hL
would lock up the garage and prevent employees
from working.
Accordingly, we find that by making the above-
mentioned threats and proposal on or about Febru-
ary 23 and 28, 1980, and by engaging in the acts
and conduct described in subsections A and B,
above, Respondent has interfered with, restrained,
and coerced, and is interfering with, restraining,
and coercing, its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, and
that, by such threats, proposals, and other acts and
conduct, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMI)Y
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the Act,
we shall order it to cease and desist therefrom, and
to take certain affirmative action which we find
will effectuate the purposes of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Mazda of Anchorage is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Food and Commercial Workers Union,
Local 1496, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All service department employees at Respond-
ent's Anchorage, Alaska, location, but excluding
sales and clerical employees, and guards and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since February 20, 1980, the above-named
labor organization has been, and is now, the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By engaging in the acts and conduct described
in subsection 111, A, above, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By engaging in the acts and conduct described
in subsection III, B, above, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
7. By engaging in the acts and conduct described
in section III, above, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mazda of Anchorage, Anchorage, Alaska, its offi-
cers, agents, successors. and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Food and
Commercial Workers Union, Local 1496, AFL-
CIO-CLC, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All service department employees at Respond-
ent's Anchorage, Alaska, location; but exclud-
ing sales and clerical employees, and guards
and supervisors as defined in the Act.
(b) Discharging its employees because they join,
support, or assist the Union or engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or in order to
discourage its employees from engaging in such ac-
tivities or other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection.
(c) Reinstating its employees at a job position
and accompanying rate of pay substantially higher
than that which they previously enjoyed in order
to discourage its employees from joining, support-
ing, or assisting the Union or engaging in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
i Nothing in this [)Decsion and Order shall b cnslrued as requiring
Rcspxmdeitl It rescind ally benefits, the granting (iI which we have foiund
unlawful
I)L'CISI()NS f() NATI()NAL ABOR R:I A'I'()NS BOARDI)
(d) Threatening its employees that it would close
its facility before it dealt with the Union.
(e) Proposing to its employees that they convert
their status to independent contractors so that it
can avoid dealing with the Union.
(f) Threatening its employees that, any time
George Shelley is forced to leave the facility on
union business, he would lock up the garage and
prevent employees from working.
(g) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the
Act. 2
2. Take the following affirmative action which
the Board finds will effectuate the purposes of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement. :
(b) Offer Ray Anderson and Lonnie Hall imme-
diate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority and other rights and privileges pre-
viously enjoyed.
(c) Make Ray Anderson and Lonnie Hall whole
for any loss of pay they may have suffered by
reason of Respondent's discrimination against them
by payment to each of them a sum of money equal
to that which he normally would have earned as
wages, in Anderson's case, from the date of dis-
crimination to the date of Respondent's offer of re-
instatement, and in Hall's case, from the date of
discrimination to the date of actual reinstatement
on or about March 17, 1980, less net earnings
during such period; backpay shall be computed in
the manner prescribed in F. W Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest as set forth
in Florida Steel Corporation, 231 NLRB 651
(1977). 4
2 Because Respondent has engaged in such egregious and widespread
misconduct as to demonstrate a general disregard for its employees' fun-
damental statutory rights, the Board finds that broad injunctive relief is
as appropriate. See Hickmort Foods. Inc. 242 NLRB 1357 (1979)
a Although the General Counsel argues that a bargaining order is ap-
propriate because Respondent has engaged in a course of conduct pre-
cluding the holding of a fair election among the unit employees, we need
not reach that issue. We find that such an order is appropriate because
Respondent admits that a majority of the unit employees have designated
and selected the Union as their representative for the purpose of collec-
tive bargaining and that it has refused since February 22. 1980, the
tition's request that it bargain with respect to that unit.
4 See, generally. Isis Plumbing d Hearing Co.. 138 NLRB 716 (1962)
Member Jenkins would compute interest on backpay due in the manner
set forth in his partial dissent in Olympic Medical Corporation. 250 NLRB
146 (1980).
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Anchorage, Alaska,
copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
' In the ctent that this ()rder is enfifrced by a Judgment o(f a U nited
States Court of' Appeals, the ords i the rit ce reading "t'osted By
()rder of the Natioil I aboil Rlatioin, Boatd sall read "Posted Pursl-
,llt 1 i Judlgilcnl t f he i nited Staltes 'tirt iol Appeals Enforcing all
()rdcT at Itc NailD ll:i I aitkl Rl.li n,, Boardl
APPENDIX
NOTICE To EMPLOYEES
POSIEt) BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIL.. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Food and Commercial Workers
Union, Local 1496, AFL-CIO-CLC, as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT discharge our employees be-
cause they join, support, or assist the above-
MAZDIA OF ANCHORA(iL
named Union or engaged in other activities to-
gether for the purpose of collective bargaining
or other mutual aid or protection, or in order
to discourage our employees from engaging in
such activities.
WE Wi L NOT reinstate our employees at
job positions and accompanying rate of pay
substantially higher than that which they pre-
viously enjoyed in order to discourage our em-
ployees from joining, supporting, or assisting
the above-named Union or engaging in other
activities together for the purpose of collective
bargaining or other mutual aid or protection.
WE WIL. NOT threaten our employees that
we will close our facility before we will deal
with the above-named Union.
WE WILI. NOT propose to our employees
that they become independent contractors so
that we can avoid dealing with the above-
named Union.
WtE WILL NOT threaten our employees that,
anytime George Shelley is forced to leave our
facility on union business, he will lock up the
garage and prevent employees from working.
WE WILl. NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
Wt: Wlt., upon request, bargain with the
above-named Union, as the exclusive representative
of all employees in the bargaining unit described
below with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement. The bargain-
ing unit is:
All service department employees at Mazda
of Anchorage, Anchorage, Alaska; but ex-
cluding sales and clerical employees, and
guards and supervisors as defined in the Act.
WE Wil. offer Ray Anderson and Lonnie
Hall immediate and full reinstatement to their
former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges previously enjoyed.
WE WlLL. make Ray Anderson and Lonnie
Hall whole for any loss of earnings they may
have suffered because of our discrimination
against them, plus interest.
MAZDA OF ANCHORAGE
S0()7