National Parts Warehouse

National Labor Relations Board - Board Decisions

Mar 26, 1962

136 N.L.R.B. 547 (N.L.R.B. 1962)

NATIONAL PARTS WAREHOUSE 547
6. Since on or about June 3, 1961, Respondent has failed and refused to rehire
Myrtle Cobb because she had joined, assisted, or favored Local 497.
I further find that such conduct violates Section 8(a)(1), that the conduct de-
scribed in concluding finding numbered 4 violates Section 8(a)(2), and that the
conduct described in concluding finding numbered 6 violates Section 8(a)(3) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent 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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices
prohibited by Section 8(a)(1), (2), and (3) of the Act, it will be recommended
that it cease and desist therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act. In view of the findings that Respondent dis-
criminated with respect to the recall of Myrtle Cobb, the recommended order herein
will require Respondent to offer immediate and full reinstatement to her former
position or one substantially equivalent thereto, and to make her whole for any loss
of earnings suffered by payment of sums of money equal to those which she normally
would have earned from the date of the discrimination against her to the date of
Respondent's offer of reinstatement or reinstatement as the case may be, less net
earnings during the intervening period. The backpay provided herein shall be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289.
Since Respondent's activities impede or binder the self-organization of its em-
ployees in a manner which has shown a serious disregard for the purposes of the Act,
and Respondent has expressed its hostility to such self-organization at various times
in the past, the remedy herein should be commensurate with the legislative objec-
tives enacted in Section 7 of the Act. It follows that an order designed to assure
Respondent's employees of their rights as guaranteed in said Section 7 is appropriate.
Upon the basis of the foregoing findings of fact, and of the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 497 and the Committee are labor organizations within the meaning of
Sections 2(5) and 8(a) of the Act.
2. By engaging in the conduct set forth in the section entitled "Concluding
Findings," the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
B. M. Smith, et al., a partnership d /b/a National Parts Ware-
house and International Union, United Automobile, Aircraft
& Agricultural Implement Workers of America, UAW, AFL-
CIO. Case No. 10-CA-4803. March 26, 1962
DECISION AND ORDER
On January 22, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair
136 NLRB No. 49.
641795-63-vol. 136-86
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions,' and recommendations of
the Trial Examiner.
ORDER2
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, B. M. Smith, et
al., a partnership d/b/a National Parts Warehouse, Forest Park,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Taking unilateral action concerning wages or other terms and
conditions of employment during the incumbency of International
Union, United Automobile, Aircraft & Agricultural Implement Work-
ers of America, UAW, AFL-CIO, as the statutory bargaining repre-
sentative of all warehouse employees, excluding office clerical em-
ployees, buying department employees, guards, and supervisors as
defined in the Act.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
' At the hearing, the Respondent attempted to show that the wage increases in the
instant case were given pursuant to its normal practice of granting wage increases to all
its employees approximately every 6 months, and that therefore such action did not con-
stitute a violation of Section 8(a) (1) and (5) of the Act However, without deciding
here that such practice would have constituted a defense, we find that the record fails to
established the existence of any such practice except for the two wage increases involved
herein and the one involved in a previous case ( 132 NLRB 1493 ), which was found to be
an unfair labor practice under Section 8 ( a) (1) and ( 5) of the Act Accordingly, we
find the Respondent 's defense to be without merit
2 As there is an order presently outstanding against the Respondent to bargain with the
Union, it is unnecessary for us to provide for such an order in the instant case
NATIONAL PARTS WAREHOUSE 549
(a) Post at its warehouse at Forest Park, Georgia, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take reasonable
steps to insure that such notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
3 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 you that :
WE WILL NOT take unilateral action concerning wages or other
terms and conditions of employment during the incumbency of
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, UAW, AFL-CIO, as the ex-
clusive representative of all warehouse employees, but excluding
office clerical employees, buying department employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activitives.
B. M. SMITH, ET AL., A PARTNERSHIP D/B/A
NATIONAL PARTS WAREHOUSE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 528 Peachtree-Seventh Building, Atlanta, Georgia, Telephone
Number, Trinity 6-3311, extension 5357, if they have any question
concerning this notice or compliance with its provisions.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by the aforenamed Union on September 25, 1961, the General
Counsel of the National Labor Relations Board issued a complaint on October
25, 1961, alleging that Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519,
herein called the Act.
Pursuant to notice, a hearing was held on January 4, 1962, at Atlanta, Georgia,
before Frederick V. Reel, the duly designated Trial Examiner. All parties were
represented and participated in the hearing, but waived the filing of briefs.
Upon the entire record in the case, including the record in Cases Nos. 10-CA-4549
and 10-CA-4612 [132 NLRB 1493], of which I take official notice, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
B. M. Smith, et al., are partners I doing business as National Parts Warehouse,
herein collectively called Respondent. Respondent has its principal office and
place of business at Forest Park, Georgia, where it is engaged in the nonretail sale
and distribution of automotive parts and accessories. During a representative yearly
period Respondent's direct interstate sales and shipments exceed 'a value of $50,000.
I find, as all parties agree, that Respondent is engaged in commerce within Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, UAW, AFL-CIO, herein called the Union, is a labor organiza-
tion within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In a recent case involving the same parties (132 NLRB 1493), the Board on August
30, 1961, issued its decision, holding, inter alia, that Respondent had violated Section
8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union at all
times since September 10, 1960, and by granting unilateral wage increases on Sep-
tember 27, 1960. In those respects the Board decision adopts in toto the findings
of the Trial Examiner in that case, whose report issued March 31, 1961.
In the instant case the complaint alleges, the answer admits, and the testimony
establishes, that Respondent granted wage increases to its employees in the bargain-
ing unit on or about March 30, 1961, and September 16, 1961, without notice to or
consultation with the Union, that Respondent on or about August 16, 1961, "uni-
laterally and without notice to or consultation with the Union promised a general
wage increase to all its employees" in the bargaining unit, and that Respondent on
or about September 1, 1961, in similar unilateral fashion, "reduced the payments
to its employees in said unit under its general hospitalization and surgical benefits
insurance program."
Assuming that the Union was at the time of these actions entitled to recognition
as the bargaining representative of the employees in the unit, Respondent's failure
to bargain with the Union about these changes in wages and working conditions
violated Section 8(a)(5) and (1) of the Act. See, e.g., Armstrong Cork Company v.
N.L.R B., 211 F. 2 843, 847 (C A. 5), and cases there cited. The fact that Re-
spondent may have erroneously believed that under the law it was not under a
duty to bargain would be no defense. Old King Cole, Inc. v. N.L.R.B., 260 F. 2d
530, 532 (CA. 6); Taylor Forge & Pipe Works v. N.L.R.B., 234 F. 2d 227, 231
(C.A. 7), cert. denied 352 U.S. 942. As the Board has held that at the time of the
events in question the Union was the statutory bargaining representative of the
employees in question, I am impelled to the conclusion that each of the admitted uni-
lateral actions violated Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with Respondent's operations described in section I, above, have a close, intimate,
1 B. M. Smith is a general partner with 61 limited partners.
THE HURLEY COMPANY, INC., & HURLEY PRESS, INC. 551
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.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section 2 (5) of the Act.
3. All of Respondent's warehouse employees , excluding office clerical and buying
department employees , guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining within Section 9(b) of
the Act.
4. At all times since September 8, 1960 , the Union has been and it continues to
be the exclusive bargaining representative of all employees in the above-described
unit for the purposes of collective bargaining within Section 9(a) of the Act.
5. By announcing or taking unilateral action with respect to wages in March,
August, and September 1961, and by taking unilateral action with respect to its
hospitalization and surgical benefits insurance program in September 1961 , Respond-
ent violated Section 8 ( a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
The Hurley Company, Inc., and Hurley Press, Inc. and Inter-
national Brotherhood of Pulp , Sulphite and Paper Mill Work-
ers, AFL-CIO. Case No. 26-CA-1142. March 26, 1962
DECISION AND ORDER
Upon charges filed by International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL-CIO,' the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Twenty-sixth Region, issued a complaint dated November 3, 1961,
against The Hurley Company, Inc., and Hurley Press, Inc.,2 alleging
that the Respondents had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Section
8(a) (5) and (1) and Section 2(6) and (7) of the Act, as amended.
Copies of the charges, complaint, and notice of hearing were duly
served upon the Respondents.
With respect to the unfair labor practices, the complaint alleges,
in substance , that, commencing on or about September 13, 1961, and
at all times thereafter, the Respondents have refused to bargain col-
lectively with the Union as the exclusive collective-bargaining repre-
sentative of a unit of employees at both Respondents' plants.
On December 27, 1961, all parties to this proceeding entered into a
stipulation, in which they waived a hearing before a Trial Examiner
and the issuance of an Intermediate Report and Recommended Order,
i Herein referred to as the Union.
2 Herein referred to as the Company and the Press , respectively , and as the Respondents
collectively . For the reasons set forth below, we find that the Respondents constitute a
single employer for the purposes of the Act.
136 NLRB No. 52.