Mazda South

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1198 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seven Motors LTD., d/b/a Mazda South; and South
County Chrysler-Plymouth, Inc., d/b/a Seven
Motors; South County Motor Sales, Inc. (Former-
ly South County Chrysler-Plymouth, Inc.) d/b/a
Seven Motors; and South County Motor Sales,
Inc., d/b/a Don Flier Motors, Jointly and District
No. 9, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 14-CA-
10033
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 26, 1977, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
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 has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge, to modify his
remedy,2 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 the Respondent, South County
Motor Sales, Inc., St. Louis, Missouri, under whatev-
er trade name it is doing business, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I In sec. III of his Decision, the Administrative Law Judge stated that
South County Motor Sales took over the operation of Mazda South on
March I, 1976, rather than March 1, 1975. This apparently inadvertent error
is insufficient to affect the results of our Decision.
2 See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for rationale
on interest payments.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at St. Louis, Missouri, on May 9, 1977,
upon a complaint issued on March 25, 1977, based upon a
charge filed on February 17, 1977, by the above-named
Charging Party (herein the Union). The complaint alleges
that the above-named Respondents constitute a single
integrated enterprise; that each of the Companies is the
alter ego of the other; and that Respondents have failed
and refused to execute an agreed-upon bargaining con-
tract, have failed and refused to honor and abide by the
terms of that contract, and have unilaterally established
wages, rates of pay, hours of employment, and other terms
of employment since the date such contract was agreed
upon, all in violation of Section 8(a)(5) and (1) of the Act.
Respondents' answer denies that Respondents are a single
integrated enterprise, or that each is the alter ego of the
other, and denies the commission of the unfair labor
practices alleged. The answer to the complaint and the
evidence in the record justifies the assertion ofjurisdiction
under current standards of the Board (Respondents,
engaged in the sale and service of automobiles and related
products in the State of Missouri, in a recent annual period
had gross revenues in excess of $500,000, during which
period it also directly received products in interstate
commerce valued in excess of $50,000), and support a
finding that the Union is a labor organization within the
meaning of the Act.
Upon the entire record in this case,' from observation of
the witnesses and their demeanor, and after consideration
of the briefs filed by the General Counsel and Respon-
dents, I make the following:
FINDINGS AND CONCLUSIONS
I. THE RESPONDENTS
Seven Motors Ltd., d/b/a Mazda South (herein Mazda
South), incorporated in Missouri, began selling and
servicing Mazda automobiles at a location near St. Louis,
150 South Center Way, on June 1, 1973. The officers of the
corporation were Donald J. Flier (erroneously "Fleer" in
the record), Louis Levin (erroneously "Leven" in the
record), and Earle Leadlove. The principal shareholders of
the corporation were Flier, Levin, Leadlove, and four other
persons.
South County Chrysler-Plymouth, Inc., an automobile
sales and service dealership operated by Flier and Levin at
another location, gave up its franchise to sell Chrysler cars
and moved to the location occupied by Mazda South.
South County Chrysler-Plymouth had or acquired fran-
chises to sell other cars and vehicles at that location, and
used the same mechanics and maintenance services at that
place as Mazda South, subject to certain financial arrange-
ments. South County Chrysler-Plymouth became South
County Motor Sales, Inc., a Delaware corporation, whose
officers are Flier, Levin, and Leadlove.
On February 28, 1975, Mazda South ceased operations.
South County Motor Sales, having acquired a separate
franchise for the sale of Mazda cars, began operations at
the same location on March 1, 1975, without a hiatus,
employing the same mechanics, under the name of South
Motor Sales d/b/a Seven Motors (herein Seven Motors)
with Flier as president and owner of 95 percent of the
stock, the remaining stock being owned by Levin.
I Errors in the transcrpt have been noted and corrected.
233 NLRB No. 178
1198
MAZDA SOUTH
On November 1, 1976, South County Motors moved to a
new location, where it is engaged in the sales and service of
the same types of vehicles, under the name of South
County Motor Sales d/b/a Don Flier Motors. Although
this trade name was stipulated by the parties, it is noted
that Flier, in his testimony, identified himself as presently
the president and general manager of South County Motor
Sales d/b/a Mazda Motors (a trade name not stipulated or
otherwise identified by the parties). Thereafter, General
Counsel and Flier appeared to treat this trade name as the
same as the one stipulated 2 and I infer that they are one
and the same.
In October 1976, the Union and the Association agreed
upon the terms of a new collective-bargaining contract. In
January 1977, the Union sent Flier copies of the new
agreement signed by the Union, with a request that the
contract be executed and copies returned to the Union.
Respondents have refused to execute the agreement. When
Timmerberg called Flier concerning this, he was referred to
Respondents' counsel, Earl Leadlove, who advised Tim-
merberg that Respondents "doubted that [the Union] had
the representation of the majority of the people at Seven
Motors."
III. ANALYSIS AND CONCLUSIONS
II. THE BARGAINING RELATIONSHIP
In August 1973, Flier executed a collective-bargaining
agreement (which had been negotiated between the Union
and Greater St. Louis Automotive Association-herein the
Association) on behalf of Mazda South covering a unit of
mechanics, 3 expiring by its terms on July 31, 1976. After
March 1, 1975, when Seven Motors began operations at
150 South Center Way, Seven Motors adhered to and
abided by the bargaining agreement.
In May 1976, the Union began negotiations with the
Association for a collective-bargaining agreement to
succeed the contract expiring on July 31, 1976. Respon-
dents' then existing operation was at the time a member of
the Association. Flier testified that in August 1976 he
notified the Association verbally and in writing that he did
not wish to be a member of the Association for the
purposes of collective bargaining. 4 The Union was not
informed of this action. Flier asserts that he withdrew from
the Association because he was informed (in a manner not
described in the record) that "some of our mechanics were
given withdrawal cards from the Union, and were going to
work for people that were not union at that time . . . and
we were very leery of losing all of our employees." No
other evidence as to this assertion was presented. Marvin
Timmerberg, business agent of the Union at the time, who
asserted that if such withdrawal cards had been requested
he would have been made aware of this, testified that he
was unaware that any such withdrawal cards were
requested or issued.
In August 1976, the Union, believing that the negotia-
tions were moving too slowly, engaged in a selective strike
against seven members of the Association. The remaining
members of the Association locked out their employees.
Respondents locked out their mechanics.
2 E.g., see the following testimony, almost immediately after Flier had
identified himself as president of South County Motor Sales d/b/a Mazda
Motors:
Q. (Mr. Hartnett) Aside from selling automobiles, what does Don
Flier Motors do? Do they work on automobiles?
A. (Mr. Flier) Yes.
Q. Do you hire mechanics to do that work?
A. Yes.
3 Based upon the bargaining agreement and the entire record in this
matter, I find the following to be an appropriate unit for the purposes of
collective bargaining within the meaning of Sec. 9(b) of the Act:
All journeymen automobile and truck mechanics, machinists,
electrical machinists, welders, trimmers, metal men, fender, body,
In essence, the operative facts in this matter show that
Mazda South, a corporation owned by Donald J. Flier,
Louis Levin, and five other persons (in proportions not
shown), was engaged in the sale and service of automo-
biles-apparently principally Mazda cars-at a location
near St. Louis. This operation was run by Flier, and
possibly Levin. During this period, Flier executed a
collective-bargaining contract with the Union on behalf of
Mazda South covering mechanics in an appropriate unit.
On March 1, 1976, South County Motor Sales, a corpora-
tion principally owned and operated by Flier (with minor
ownership by Levin), took over the operations of Mazda
South, at the same location, doing the same business, and
employing the same mechanics, without any hiatus.5 After
this date, South County Motor Sales continued business at
this location under the name of Seven Motors (a name with
which Mazda South was also identified), and continued to
adhere to and abide by the bargaining agreement with the
Union. In these circumstances, it is clear that these various
corporations, under the various trade names used, consti-
tute, at the times material herein, a single entity, insofar as
the employment of the mechanics involved is concerned,
under the same managerial control, doing the same
business at the same location. Indeed, South County Motor
Sales (which was the outgrowth of South County Chrysler-
Plymouth) was clearly the successor to Mazda South,
obligated to recognize and bargain with the Union as the
representative of its mechanics in the appropriate unit and
to comply with the bargaining agreement with the Union
covering the mechanics.
The bargaining agreement executed by Flier, which had
been negotiated by Greater St. Louis Automotive Associa-
tion and the Union, had a termination date of July 31,
1976. In May 1976, the Union and the Association began
painters, radiator repairmen, refrigeration, automotive air conditioning
mechanics, inspectors, glass installers, service salesmen and towermen,
apprentices, and working foremen employed by the members of the
Greater St. Louis Automotive Association, Inc., excluding office
clerical and professional employees, guards, and supervisors as defined
in the Act, and all other employees.
Flier testified that "we are a member" of the Association, but denied
that the Association was the organization which negotiated the bargaining
agreement. He was rather vague as to the organization which he asserts did
negotiate the contract. The record as a whole is convincing that the
bargaining agreements were negotiated by the Association.
I Another Respondent herein, South County Chrysler-Plymouth, Inc.,
also operated by Flier and Levin jointly with Mazda South at the same
location for a time became South County Motor Sales, and its bank account
was transferred to South County Motor Sales.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations for a new agreement to succeed that agree-
ment. At this time South County Motor Sales was a
member of the Association. When the Union engaged in a
selective strike against seven members of the Association,
South County Motor Sales, together with other members of
the Association, locked out its mechanics. In the same
month, South County Motor Sales sought to withdraw
permission from the Association to bargain for it with the
Union. After the new contract had been agreed upon in
October by the Association and the Union, South County
Motor Sales moved to a new location near St. Louis, where
it continues to be engaged in the sale and service of
automobiles-apparently still principally Mazda cars. At
this location South County Motor Sales has adopted a new
name under which to do business: Don Flier Motors. It
continues to employ mechanics.6 South County Motor
Sales has since refused to sign the bargaining agreement
negotiated by the Association and the Union to succeed
the contract which expired on July 31, 1976.
Respondents, in their brief, argue that there was no
obligation on the part of South County Motor Sales d/b/a
Don Flier Motors to sign the agreement negotiated by the
Association because (I) South County Motor Sales d/b/a
Don Flier Motors was not a successor of other Respon-
dents; (2) South County Motor Sales, though a member of
the Association, was not a member of the "bargaining
group" which negotiated the bargaining agreements; 7 and
that Flier timely and effectively withdrew from the
Association before the successor contract was agreed upon,
inasmuch as it withdrew after an asserted impasse in the
negotiations occurred. 8
However, as previously found, South County Motor
Sales was clearly the successor of Mazda South and
obligated to comply with the agreement with the Union
and to deal with the Union as the representative of its
mechanics covered by the contract. Further, South County
Motor Sales was a member of the Association when the
negotiations for a new contract began, and only sought to
withdraw after the negotiations were well under way.
It is well established that withdrawal from multiemployer
bargaining after the commencement of bargaining negotia-
tions, without the agreement of the parties, is untimely and
ineffective, unless excused by unusual circumstances
existing in the case. See Charles D. Bonano Linen Service,
Inc., 229 NLRB 629 (1977); Central Plumbing Company,
198 NLRB 925 (1972), and cases cited. There is no claim
that the Union acquiesced in the withdrawal. It is argued,
however, that the selective strike by the Union during the
negotiations establishes that an impasse occurred during
the bargaining which justified Flier in withdrawing from
the negotiations. But a work stoppage in and of itself does
not prove that an impasse exists. See, e.g., N.L.R.B. v. Katz,
369 U.S. 736 (1962) (partial strike does not establish
impasse). Indeed, in this case in particular, the evidence is
that the Union called the selective strike, not because of
impasse, but to speed up the negotiations which the Union
6 Flier was not asked about the identity of these mechanics. His
testimony indicates that some mechanics lost during the strike/lockout, but
that he was making efforts to retain other mechanics previously employed.
Thus he asserted-rather cryptically-that this was a purpose in seeking to
withdraw from the Association.
I Flier so testified. This testimony is not credited. Timmerberg's credited
testimony is that the contracts were negotiated with the Association.
thought were too long drawn out. There is no basiSon this
record to find that there was an impasse in the bargaining,
or that there was any unusual circumstance which justified
Respondents, or any of them, in withdrawing from the
Association after the commencement of the bargaining
negotiations for a new contract.
Based upon the above, and the record as a whole, I find
that South County Motor Sales, under whatever trade
name it was and is doing business, violated Section 8(aX5)
and (1) of the Act by failing and refusing to execute and
comply with the bargaining agreement with the Union
effective from August 1, 1976, through July 31, 1979,
covering its mechanics in the appropriate unit found above
in footnote 3. I see no reason to find that the other named
Respondents also violated the Act in this manner inasmuch
as they appear not to be actively engaged in business now.
Should they be revived under their former or any other
names, their obligation to remedy the violation found will
derive from the Order recommended hereunder.
The complaint alleges that Respondents also violated the
Act by "unilaterally establishing wages, rates of pay, hours
of employment, and other terms and conditions of
employment." There is no proof in support of this
allegation, other than Respondents' failure to execute and
comply with the bargaining agreement effective August 1,
1976. In the circumstances, it will be recommended that
this allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondents, and each of them, are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been and
continues to be the exclusive representative of employees
of Respondents, and each of them, in the appropriate unit
set forth in footnote 3 hereinabove, for the purposes of
collective bargaining within the meaning of Section 9(a)
and (b) of the Act.
4. Respondent South County Motor Sales, Inc., under
whatever trade name it was and is doing business, by its
refusal to sign, honor, and comply with the collective-
bargaining contract agreed upon by the Union and Greater
St. Louis Automotive Association, effective August 1, 1976,
as found hereinabove, engaged in, and is engaging in,
conduct in violation of Section 8(aX5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent South County
Motor Sales, under whatever trade names it has been or is
doing business, has engaged in and is engaging in unfair
labor practices in violation of Section 8(aX5) and (1) of the
8 There was indication at the hearing that Respondents were also
claiming that the Union had lost its majority status, or that Respondents
had a good-faith belief that this was so. This is not argued in the brief. In
any event, I have considered these matters and find that there is not a
sufficient basis in the record to support such contentions.
1200
MAZDA SOUTH
Act, it will be recommended that said Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that the aforesaid Respondent has
refused to sign, honor, and comply with the terms of the
collective-bargaining agreement negotiated in its behalf by
the Greater St. Louis Automotive Association, it will be
recommended that said Respondent forthwith sign the
collective-bargaining agreement with the Union, effective
August 1, 1976, and that said Respondent give retroactive
effect to that date to the terms and conditions contained in
that agreement and make its employees whole for any loss
of wages or other employment benefits they may have
suffered as a result of said Respondent's failure and refusal
to honor and comply with the terms and conditions of that
agreement, such payments to be made in a manner
consistent with the Board policy set forth in F W.
Woolworth Company, 90 NLRB 289 (1950), to which
interest shall be added as prescribed by the Board in
Florida Steel Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 9
Respondent South County Motor Sales, Inc., under
whatever trade name it is doing business, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign, honor, and comply with the terms
and conditions of the collective-bargaining agreement
effective August 1, 1976, negotiated by the Greater St.
Louis Automotive Association, Inc. (herein the Associa-
tion), covering the appropriate unit set forth below. The
appropriate unit is:
All journeymen automobile and truck mechanics,
machinists, electrical machinists, welders, trimmers,
metal men, fender, body, painters, radiator repairmen,
refrigeration, automotive air conditioning mechanics,
inspectors, glass installers, service salesmen and tower-
men, apprentices, and working foremen employed by
the members of the Association, excluding office
clerical and professional employees, guards and super-
visors as defined in the Act, and all other employees.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Upon request by the Union, sign the collective-
bargaining agreement effective August 1, 1976, negotiated
by the Association, and honor and abide by the terms and
provisions of that agreement.
(b) Give retroactive effect to the terms and conditions of
the collective-bargaining agreement described above, and
make its employees whole for any losses they may have
suffered by reason of Respondent's failure and refusal to
execute and comply with the terms and provisions of that
agreement, as provided in the section herein entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amounts due as backpay and
other benefits to its employees as required by this Order.
(d) Post in conspicuous places at its place of business in
the county of St. Louis, State of Missouri, copies of the
attached notice marked "Appendix." 1 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that allegations of the complaint
not found herein to be violations of the Act be dismissed.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein, shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
o1 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request by District No. 9, Interna-
tional Association of Machinists and Aerospace Work-
ers, AFL-CIO, sign the collective-bargaining agree-
ment covering our machinists and other employees
effective August 1, 1976, negotiated by the Greater St.
Louis Automotive Association, and WE WILL comply
with and honor the terms and provisions of that
agreement.
WE WILL pay our machinists and other employees
who come under the collective-bargaining agreement
for wages and other employment benefits which they
may have lost because we did not sign the collective-
bargaining agreement or comply with its terms and
provisions retroactive to August 1, 1976, with interest.
SOUTH COUNTY MOTOR
SALES, INC.
1201