Mulligan of Dearborn, Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1969

175 N.L.R.B. 196 (N.L.R.B. 1969)

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mulligan of Dearborn , Inc. and Crest Mercury, Inc.
and Mulligan Lincoln-Mercury, Inc. and
Automotive Salesmen 's Association (A.S.A.),
Affiliated with SIUNA, AFL-CIO. Cases
7-CA-6823, 7-CA-6824, and 7-CA-6825
April 1, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a charge filed by Automotive Salesmen's
Association (A.S.A.), affiliated with SIUNA,
AFL-CIO, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 7, issued complaints dated July 31, 1968,
against Mulligan of Dearborn, Inc., Crest Mercury,
Inc., and Mulligan Lincoln-Mercury, Inc., herein
called Respondents, alleging that Respondents had
engaged in and were engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charges
and the complaints were duly served upon
Respondents.
With respect to the unfair labor practices, the
complaints allege, in substance, that on February
15, 1967, and March 14, 1967 respectively, the
Regional Director for Region 7 certified A.S.A.
(unaffiliated) as the collective-bargaining agent of
Respondents' employees in appropriate units of all
new and used car and truck salesmen; that on
February 9, 1968, in Cases 7-AC-46, 7-AC-25, and
7-AC-47, the Regional Director issued a Decision
and Amendment of Certification holding that
A.S.A.'s affiliation with Seafarers' International
Union of North America, AFL-CIO, on October
25, 1967, caused no loss of identity of the certified
A.S.A. and, accordingly, amended the certification
by noting the new name, Automotive Salesmen's
Association (A.S.A.), affiliated with Seafarers'
International Union of North America, AFL-CIO;
and that since December 26, 1967, Respondents
have failed or refused to recognize and bargain with
A.S.A. as the exclusive bargaining agent of the
Respondents' salesmen, although A.S.A. has
requested and is requesting them to do so On
August 9, 1968, Respondents filed their answer,
denying the commission of the unfair labor practices
alleged and presenting affirmative defenses to the
allegations.
On October 28, 1968, the parties entered into a
stipulation by which they waived a hearing before a
Trial Examiner and the issuance of a Trial
Examiner's Decision and Recommended Order, and
agreed to submit the case to the Board for findings
of fact, conclusions of law, and an order based upon
a stipulated record pursuant to Section 102.50 of the
Rules and Regulations of the Board. The parties
further having considered the complaints which have
issued and having concluded that the three
above-captioned cases concern the same questions of
fact and law consented to the issuance of an Order
Consolidating Cases for the purpose only of testing
Respondents' respective legal positions in regards to
the AC decisions issued February 9, 1968, amending
A.S A.'s certifications. The parties also expressly
reserved the right to file briefs.
On November 5, 1968, the Board approved the
stipulation, consolidated the cases, and transferred
the cases to itself. Thereafter, the General Counsel
and Respondents filed briefs
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with these cases to a three-member
panel.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondents are Michigan corporations with
offices in Michigan, where they are engaged in the
retail sale and servicing of automobiles and related
automotive products. During the past 12 months, a
representative period, Respondents, and each of
them, obtained gross revenues in excess of $500,00
from the sale and distribution of new and used
automobiles and trucks. During that same period,
Respondents, and each of them, in the course and
conduct of their operations, received goods and
materials valued in excess of $8,000 which were
transported directly to their Michigan locations
from places outside the State of Michigan.
11. THE LABOR ORGANIZATION INVOLVED
Automotive Salesmen's Association (A S.A ),
affiliated with SIUNA, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III APPROPRIATE UNITS AND MAJORITY
The parties have stipulated , and we find , that the
following described units for each respective
Respondent constitute units appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act and that A.S.A is duly
certified as the exclusive representative thereof:
(A) Mulligan of Dearborn , Inc. - all new and
used car and truck salesmen at Mulligan of
Dearborn Inc.'s Dearborn , Michigan place of
business, excluding office clerical employees,
guards and supervisors as defined in the Act and
all other employees.
(B) Crest Mercury Sales , Inc. - all new and
used car and truck salesmen at Crest Mercury
Sales, Inc.'s Detroit , Michigan place of business,
175 NLRB No. 30
MULLIGAN OF DEARBORN , INC. 197
excluding office clerical employees, guards and
supervisors as defined in the Act and all other
employees.
(C) Mulligan Lincoln-Mercury, Inc. - all new
and used car and truck salesmen at Mulligan
Lincoln-Mercury Inc.'s Detroit, Michigan place of
business, excluding office clerical employees,
guards and supervisors as defined in the Act and
all other employees
IV. THE UNFAIR I ABOR PRACTICES
The Request to Bargain and Respondents'
Refusals
The sole issue raised in this proceeding is whether,
as alleged in the complaints, Respondents violated
Section 8(a)(5) and (1) of the Act by refusing on
December 26, 1967, and thereafter to bargain
collectively with A.S.A as the exclusive bargaining
representative of all employees in the above three
bargaining units.
We find that A.S.A. has been at all times
material herein, and now is, the exclusive bargaining
representative of all the employees in the units set
forth above within the meaning of Section 9(a) of
the Act. We further find that Respondents have
since on or about December 26, 1967, refused to
bargain collectively with A S.A. as the exclusive
bargaining representative of their employees in the
appropriate units, and that, by such refusal,
Respondents have engaged in, and are engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
As indicated by the stipulated facts, a bargaining
relationship has existed between the parties since
February 1967. At the time of the certifications in
February 1967, A.S.A. was not affiliated with any
other organization or union. On or about October
25, 1967, A.S.A. affiliated with Seafarers'
International Union of North America, AFL-CIO.
On November 20, 1967, A.S.A. filed petitions
requesting that the Board amend the certifications
to change the name of the bargaining representative
to Automotive Salesmen's Association (A.S.A.)
affiliated with SIUNA, AFL-CIO. On February 9,
1968, the Regional Director for Region 7 issued a
Decision and Amendment of Certifications holding
that the affiliation caused no loss of identity of the
certified A S.A. and accordingly amended the
certifications in Cases 7-RC-7508, 7-RC-7460, and
7-RC-7509. The Board, by telegram on April 26,
1968, denied Respondents' request for review of the
Decision and Amendment of Certifications
Commencing on or about December 26, 1967, and
at all times thereafter, all three Respondents did
refuse and continue to refuse to bargain collectively
with A.S.A. as the exclusive collective-bargaining
representative of all the employees in the
appropriate units described above, by the following
acts and conduct: by failing and refusing to answer
or acknowledge the requests for negotiations set
forth in the letters sent by A.S A. both during and
after the certification year, and by the refusal to
bargain as indicated by the disregard of the many
A S A. letters requesting such bargaining. Both
during and after the certification year, Respondents
have on numerous occasions failed and refused to
meet with A.S.A. for the purpose of bargaining,
because of their desire to challenge and test the AC
decisions set forth above
Discussion
Respondents defend their refusals to bargain on
the ground that they desired to test the AC
decisions. They raise no contentions not previously
considered and rejected by the Board when the
certifications were amended. We find, accordingly,
that Respondents violated Section 8(a)(5) of the Act
by their refusals to bargain with A.S.A., affiliated
with SIUNA, the statutory representative of the
employees in the respective units pursuant to the
amended certifications.
IV. THE EFFECTS OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of Respondents set forth in section
II, above, occuring in connection with their
operations as described in section 1, 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.
V. THE REMEDY
Having found that Respondents have engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that they
cease and desist therefrom and, upon request,
bargain collectively with A.S.A. as the exclusive
representative of all employees in the respective
appropriate units, for a period of 1 year from the
date actual good - faith bargaining commences, and,
if an understanding is reached , embody such
understanding in a signed agreement.
CONCLUSIONS OFLAW
1. Mulligan of Dearborn, Inc., Crest Mercury,
inc., and Mulligan Lincoln-Mercury, Inc , are
employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Automobile Salesmen's Association (A.S.A ),
affiliated with SIUNA, AFL-CIO is a labor
organization within the meaning of Section 2(5) of
the Act
3. The units described in III, (A), (B), and (C),
above, respectively, constitute units appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the above-named
labor organization has been and is now the certified
and exclusive representative of all employees in the
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-described appropriate units for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about December 26, 1967,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the
employees of the Respondents in the aforesaid
appropriate units, Respondents have engaged and
are engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain,
Respondents have interfered with, restrained, and
coerced, and are interfering with, restraining, and
coercing, their employees, in the exercise of the
rights guaranteed them in Section 7 of the Act, and
have thereby engaged in, and are 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 Respondents,
Mulligan of Dearborn, Inc., Crest Mercury, Inc.,
and Mulligan Lincoln-Mercury, Inc., each for itself,
its officers, 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 Automotive
Salesmen's Association (A.S.A.), affiliated with
SIUNA, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
units:
(1) In the case of Respondent Mulligan of
Dearborn, Inc.: All new and used car and truck
salesmen employed by that Respondent at its
Dearborn, Michigan, place of business, excluding
office clerical employees, guards, and supervisors as
defined in the Act and all other employees.
(2) In the case of: Respondent Crest Mercury,
Inc.: All new and used car and truck salesmen
employed by that Respondent at its Detroit,
Michigan, place of business, excluding office clerical
employees, guards, and supervisors as defined in the
Act and all other employees.
(3) In the case of Mulligan Lincoln-Mercury, Inc.:
All new and used car and truck salesmen
employed by that Respondent at its Detroit,
Michigan, place of business, excluding office clerical
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 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 above appropriate units with
respect to rates of pay, wages, hours, and other
terms and conditions of employment; -'with an
extension of the normal certification year to the
period of 1 year from the date when Respondents
begin to bargain in good faith with A.S.A. as the
exclusive representative of the employees in the
appropriate units, and if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its place of business, copies of the
appropriate attached notice marked "Appendix."'
Copies of said notice, on the form provided by the
Regional Director for Region 7, shall, after being
duly signed by its representative, be posted by it
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 Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondents have
taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court . of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Automotive Salesmen's Association (A.S.A.), affiliated
with SIUNA, AFL-CIO; as the exclusive representative
of the employees in the bargaining units 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 labor organization as the exclusive
representative of all employees in the bargaining units
described below with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
with an extension of the normal certification year to the
period of I year from the date when we begin to
bargain in good faith with the union as the recognized
representative of of the employees in the appropriate
units, and if an understanding is reached, we will
embody such understanding in a signed agreement.
The bargaining unit is:
MULLIGAN OF DEARBORN, INC.
Mulligan of Dearborn , Inc. - all new and used car
and truck salesmen at Mulligan of Dearborn Inc.'s
Dearborn , Michigan place of business , excluding
office clerical employees , guards and supervisors as
defined in the Act and all other employees.
Dated By
MULLIGAN OF DEARBORN,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Automotive Salesmen's Association (A.S.A.), affiliated
with SIUNA, AFL-CIO, as the exclusive representative
of the employees in the bargaining units 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 labor organization as the exclusive
representative of all employees in the bargaining units
described below with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
with an extension of the normal certification year to the
period of 1 year from the date when we begin to
bargain in good faith with the union as the recognized
representative of the employees in the appropriate units,
and if an understanding is reached, we will embody
such understanding in a signed agreement.
The bargaining unit is:
Crest Mercury Sales, Inc. - all new and used car
and truck salesmen at Crest Mercury Sales, Inc.'s
Detroit, Michigan place of business, excluding office
clerical employees, guards and supervisors as defined
in the Act and all other employees.
CREST MERCURY, INC.
(Employer)
Dated By
(Representative) (Title)
199
This, notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Automotive Salesmen's Association (A.S.A.), affiliated
with SIUNA, AFL-CIO, as the exclusive representative
of the employees in the bargaining units 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 labor organization as the exclusive
representative of all employees in the bargaining units
described below with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
with an extension of the normal certification year to the
period of 1 year from the date when we begin to
bargain in good faith with the union as the recognized
representative of the employees in the appropriate units,
and if an understanding is reached, we will embody
such understanding in a signed agreement.
The bargaining unit is
Mulligan Lincoln-Mercury, Inc. - all new and used
car and truck salesmen at Mulligan Lincoln-Mercury,
Inc.'s Detroit, Michigan place of business, excluding
office clerical employees, guards and supervisors as
defined in the Act and all other employees.
Dated By
MULLIGAN
LINCOLN-MERCURY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200.