McManus Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 216 (N.L.R.B. 1969)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McManus Chevrolet, Inc. and American Federation
of Professional Salesmen . Case 13-CA-9249
December 16, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
Upon a charge filed by the American Federation
of Professional Salesmen, herein called the Union,
the General Counsel for the National Labor
Relations Board, by the Regional Director for
Region 13, issued a complaint dated August 4, 1969,
against McManus Chevrolet, Inc., herein called the
Respondent, alleging that the Respondent did
engage in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing were
duly served on Respondent.
With respect to the unfair labor practices, the
complaint alleges , in substance, that on June 5,
1969, a majority of the employees in a unit found
appropriate by the Regional Director of Region 13
of the National Labor Relations Board,' in a secret
ballot election conducted under the supervision of
the Regional Director, designated and selected the
Union as their representative for the purposes of
collective bargaining, and on June 13, 1969, said
Regional Director certified the Union as the
exclusive collective-bargaining representative of the
employees in said unit. The complaint further
alleges that since on or about July 3, 1969, and at
all times thereafter, the Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of its employees. On August 13, 1969,
the Respondent filed its answer, admitting in part,
and denying in part, the allegations of the complaint
and presenting an affirmative defense.
On August 21, 1969, the General Counsel filed
with the Board a Motion for Summary Judgment
alleging that there are no factual issues which would
warrant a hearing. Thereafter, on August 26, 1969,
the Board issued an order transferring the
proceeding to the Board and notice to show cause.
On September 10, 1969, the Respondent filed its
opposition to motion for summary judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
makes the following:
'Decision and Direction of Election issued May 9, 1969, in Case
13-RC-11841 (not published in NLRB volumes)
RULINGS ON THE MOTION FOR SUMMARY
JUDGMENT
In its opposition to the General Counsel's Motion
for Summary Judgment, the Respondent contends,
in substance, that the Union is not a labor
organization within the meaning of the Act and,
therefore, the underlying representation proceedings
which certified the Union are invalid. The
Respondent contends that those proceedings are
based on the decision in Schmerler Ford, Inc.,' in
which the Board incorrectly found the Union to be a
labor organization within the meaning of the Act.
The Charging Party, Respondent, and Counsel for
the General Counsel have stipulated that the Union
involved in the present case is the same organization
which was involved in Schmerler Ford, Inc., supra.
The parties further stipulated that the entire record
in Case 13-RC-11841, the representation case
underlying the present case, with respect to the issue
of labor organization, and the antitrust argument be
incorporated by reference into the instant record,
including the testimony, documents, motions,
pleadings, and orders.
In its answer in the present case the Respondent
admits that on or about July 3, 1969, the Union
requested the Respondent to bargain collectively
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and that commencing on or about July
3, 1969, Respondent has refused to bargain with the
Union.
In its defense, Respondent contends that the
Union herein is not a labor organization within the
meaning of the Act because it engaged in price
fixing contrary to the Sherman Act which caused
the Union to lose its status as such a labor
organization. Accordingly, Respondent argues that
the Union is not the exclusive bargaining
representative of all of the employees in the unit
involved inasmuch as the underlying representation
case was invalid because of the Union's lack of
status as a labor organization within the meaning of
the Act. This is the same argument made by the
Respondent and rejected by the Regional Director in
the underlying representation case. It is also the
same argument rejected by the Board in Schmerler
Ford, Inc., supra.
In Schmerler Ford, Inc., supra, involving the
same Union with which we are here concerned, the
Board, in affirming the Trial Examiner's Decision,
found that the Union is a labor organization within
the meaning of the Act, and further found that the
Union has been and has remained the exclusive
representative of the employees involved in that
series of cases for the purpose of collective
bargaining with respect to wages, hours, and other
terms and conditions of work within the meaning of
Section 9(a) of the Act. Finally, the Board affirmed
1175 NLRB No. 90.
180 NLRB No. 44
MCMANUS CHEVROLET, INC.
the Trial Examiner's finding and conclusion that
there was a violation of Section 8(a)(5) and (1) of
the Act under facts substantially similar to the facts
involved herein . Similarly , in the representation case
out of which the instant case grew, the Regional
Director found that the Union involved is a labor
organization within the meaning of Section 2(5) of
the Act.
Thus, the Respondent in the present case does not
contend that it has any newly discovered or
previously unavailable evidence to present . Instead,
it seeks to relitigate contentions made prior to and
rejected in the Board 's Decision in Case
13-RC-11841, the underlying representation case,
and fully considered and rejected by the Board in
Schmerler Ford, Inc., supra. Inasmuch as
Respondent has already litigated such contentions, it
has not raised any issue which is properly triable in
this proceeding.3
As all material issues have been previously
decided by the Board, or admitted by Respondent in
its answer to the complaint , there are no matters
requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's motion for
summary judgment is granted . On the basis of the
record before it , the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation engaged in
the retail sale and distribution of automobiles,
trucks, and related products in Chicago, Illinois.
Respondent, in the course and conduct of its
business operations, annually sold and distributed
automobiles, trucks, and related products valued in
excess of $500,000, of which products valued in
excess of $100,000 were shipped to its plant directly
from locations outside the State of Illinois.
Respondent admits, and we find , that Respondent
is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Professional
Salesmen is a labor organization within the meaning
of Section 2(5) of the Act.
217
All automobile and truck salesmen employed at
the Employer's Chicago, Illinois, location,
excluding office and plant clericals, automobile
mechanics, semi-skilled help, parts department
employees, guards and supervisors as defined in
the Act, and all other employees.
B. The Certification
On June 5, 1969, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 13, designated the Union as
their representative for the purpose of collective
bargaining with Respondent, and on June 13, 1969,
the Union was certified as the collective-bargaining
representative of the employees in said unit and
continues to be such representative.
C. The Request to Bargain and Respondent's
Refusal
Commencing on or about July 3, 1969, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with
the Union as the exclusive collective bargaining
representative of the employees in the
above-described unit. Since July 3, 1969, and
continuing to date, Respondent has refused and
continues to refuse to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in
the appropriate unit described above and that the
Union at all times since June 13, 1969, has been and
now is the exclusive bargaining representative of all
the employees in the aforesaid unit, within the
meaning of Section 9 (a) of the Act. We further find
that Respondent has since July 3, 1969, refused to
bargain collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit. 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.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
'E-Z Davies Chevrolet , 161 NLRB 1380.
The acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close , intimate,
and substantial relation to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing
commerce and the free flow of commerce.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom , and upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and , if an understanding is reached , embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit . See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel , 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company , 149 NLRB
1421, enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. McManus Chevrolet, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The American Federation of Professional
Salesmen is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All automobile and truck salesmen employed at
the Employer's Chicago, Illinois, location,
excluding office and plant clericals, automobile
mechanics, semi-skilled help, parts department
employees, guards and supervisors as defined in
the Act , and all other employees.
4. Since June 13, 1969, the Union has been the
exclusive representative of all the employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about July 3, 1969, and at all
times thereafter to bargain collectively with the
Union as the exclusive bargaining representative of
all the employees in the appropriate unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and has thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
McManus Chevrolet, Inc., Chicago, Illinois, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages , hours, and other terms and conditions of
employment with the American Federation of
Professional Salesmen as the exclusive bargaining
representative of its employees in the following
appropriate unit.
All automobile and truck salesmen employed at
the Employer's Chicago, Illinois , location,
excluding office and plant clericals, automobile
mechanics , semi-skilled help, parts department
employees, guards and supervisors 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
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its place of business copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by the
Respondent's representative, shall be posted by the
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 the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify said Regional Director for Region 13,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
'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."
MCMANUS CHEVROLET, INC.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board, an agency of the United States Government
WE WILL NOT refuse to bargain collectively with the
American Federation of Professional Salesmen as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representative of
all our 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 bargaining unit is:
All automobile and truck salesmen employed at the
Employer's Chicago, Illinois, location, excluding
219
office and plant clericals, automobile mechanics,
semi-skilled help, parts department employees, guards
and supervisors as defined in the Act, and all other
employees.
Dated By
MCMANUS CHEVROLET,
INC.
(Employer)
(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,
881 U.S. Courthouse and Federal Office Building, 219
South Dearborn Street , Chicago , Illinois 60604,
Telephone 312-353-7570.