Nickey Chevrolet Sales, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1963

142 N.L.R.B. 23 (N.L.R.B. 1963)

NICKEY CHEVROLET SALES, INC. 23
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities , except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Kenneth Devenny immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges.
WE WILL make whole Kenneth Devenny for any loss of earnings , together
with interest , that he may have suffered as a result of our discrimination against
him.
All our employees are free to become or remain, or refrain from becoming or
remaining , members in good standing of Retail Clerks Union No. 367, Retail Clerks
International Association, AFL-CIO, or any other labor organization , except to the
extent that this right may be affected by an agreement in conformity with Section
8(a)(3) of the National Labor Relations Act, as was modified by the Labor-
Management Reporting and Disclosure Act of 1959.
Six ROBBLEES' INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above -named employee in the event he is presently
serving in the Armed Forces of the United States of his full right to reinstatement
upon application in accordance with the Selective Service Act after discharge from
the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 327 Logan
Building, Fifth and Union Streets , Seattle 1, Washington , Telephone No. Mutual
2-3300, Extension 553, if they have any questions concerning this notice or com-
pliance with its provisions.
Nickey Chevrolet Sales, Inc. and Automobile Mechanics Local
701, International Association of Machinists , AFL-CIO and
Excavating, Grading, Asphalt, Private Scavengers and Auto-
mobile Salesroom Garage Attendants Local No. 731 , affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America . Cases Nos. 13-CA-5095
and 13-CA-5096. April 16, 1963
DECISION AND ORDER
On December 28, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
142 NLRB No. 4.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These matters, brought under Section 10(b) of the National Labor Relations Act,
as amended (61 Stat. 136), herein called the Act, were heard before Trial Examiner
Eugene E. Dixon at Chicago, Illinois, on November 28, 1962, pursuant to due notice
with all parties being represented. The consolidated complaint issued by a representa-
tive of the General Counsel for the National Labor Relations Board (herein called
the General Counsel and the Board), on October 15, 1962, and based on charges filed
on August 27 and served on August 30, 1962, alleged in substance that Nickey
Chevrolet Sales, Inc., herein called the Company or the Respondent, had engaged
in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by
refusing to bargain with Automobile Mechanics Local 701, International Association
of Machinists, AFL-CIO, herein called Local 701, and with Excavating, Grading
Asphalt, Private Scavengers and Automobile Salesroom Garage Attendants Local No.
731, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called Local 731, by (a) soliciting employees
to abandon both locals thus undermining and destroying their majorities; (b) attempt-
ing to bargain collectively and individually with the employees; (c) undermining the
said Locals' majorities by encouraging employees to refrain from paying union
dues; (d) unilaterally attempting to modify the Unions' security and grievance pro-
cedures without fulfilling the obligations of Section 8(d) of the Act; and (e) an-
nouncing that it did not intend to bargain in good faith.
In its duly filed answer, Respondent denied the commission of any unfair labor
practices. Upon the entire record in the case, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is, and has been at all times material herein, a corporation duly organ-
ized under and existing by virtue of the laws of the State of Illinois. At all times
material herein Respondent has maintained its principal office and places of business
in Chicago, Illinois, where it is engaged in the retail sales, distribution and service
of new and used automobiles, and related products. During the year preceding the
issuance of the complaint Respondent in the course and conduct of its business
operations sold and distributed products the gross value of which exceeded $500,000.
During the same period of time Respondent received goods valued in excess of
$100,000 transported directly to its places of business directly from outside the
State of Illinois.
Respondent now 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.
H. THE LABOR ORGANIZATIONS
Local 701 and Local 731 are and at all times material herein have been labor
organizations within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
At all times material herein Respondent was operating under collective -bargaining
contracts with Local 701 and Local 731. Local 701's contract had been entered into
on October 26, 1961, and had an effective date to July 1, 1963. This contract pro-
NICKEY CHEVROLET SALES, INC. 25
vided for Local 701's exclusive representation of all mechanics, apprentices, and
semiskilled workers, employed at Respondent's showroom and garage, exclusive of
salesmen, polishers, undercoaters, utility employees, washers, garage attendants, parts
department employees, guards, and all supervisors as defined in the Act, which
unit I find to be appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Local 731's contract which was effective from October 3, 1961, to June 30, 1963,
provided that Local 731 was the exclusive representative of all polishers, under-
coaters, utility employees, washers, garage attendants, and parts department em-
ployees employed by Respondent at its showroom and garage, exclusive of me-
chanics, apprentices, and semiskilled workers, salesmen, guards, and all supervisors
as defined in the Act, which unit I find to be appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act. Both contracts
contain union-shop and dues-checkoff provisions.
On August 23, and again on November 21, 1962, Respondent transmitted to its
employees either by attaching it to their paychecks or to their timecards the following
notice:
THE MANAGEMENT OF THIS COMPANY WANTS TO MAKE CLEAR:
(1) Each employee is free to join or free to refuse to join any labor organiza-
tion. You are guaranteed this right by law. The Company intends to support
observation of these laws.
(2) You are entitled to hear why management believes your own best interest
as well as those of the Company are best served without representation by a
labor union organization.
(3) Any question concerning such matters should be referred to management
through your immediate supervisor.
(4) You will receive a response to your questions from the President of
this company if requested.
Your wages or salary are your own to use as you please.
Your performance of your work is expected to be in the interest of this
company and its customers.
EDWARD J. STEPHANI,
President.
Conclusions
The foregoing constitutes practically all the relevant evidence in the case. The
General Counsel contends that the communications in question cannot be interpreted
in vacuo and must be considered not only as their parts relate to each other but as
they relate to the collective-bargaining agreements in question. In this connection
the General Counsel's position in substance is that Respondent (1) "sponsored and
encouraged a disavowal of the union"; (2) unilaterally modified the collective-
bargaining agreements; (3) suggested that employees bargain directly with man-
agement; and (4) publicly and in general announced its intention not to bargain
with the Unions in good faith as required by the Act.
In substance, Respondent's position appears to be that none of the interpretations
contended for by the General Counsel were meant by Respondent' or could be
fairly construed from the communications; that in making the statements it did to
the employees, Respondent was merely exercising its right to voice its opinion and
speak its mind as provided for in Section 8(c) of the Act?
There is no doubt in my mind and I find that the overall effect of the communica-
tions in question amounts to a violation by Respondent of Section 8(a)(1) and (5)
of the Act and in substantially the same respects the General Counsel contends. It
is clear to me that Respondent has misconceived its rights under Section 8(c) of
the Act and has relied on cases in this connection which are not applicable to the
situation in which it finds itself. Clearly, what Respondent told its employees would
be fully privileged under Section 8(c) during an organizing campaign. But what
can be said during a campaign may very well be prohibited once the campaign is
over and the obligation to bargain established.
I Neither Respondent's good faith nor the actual effect of the notices on the employees
would be material. American Freightways Co., Inc., 124 NLRB 146.
2 Section 8(c) provides:
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, of course, there were no campaigns involved. On the contrary, there
were established collective-bargaining relationships which had resulted in collective-
bargaining agreements. Even without the union shop provisions in those contracts I
believe that Respondent's communications are inconsistent with its collective-
bargaining obligations. With such provisions in the contracts, however, I have no
doubt of their illegality.
Respondent would defend itself on the basis that its comments on the freedom of
employees to join or not to join a union "applies prospectively. It says nothing
to those who have already joined. Therefore it can apply only to new employees
falling within the jurisdiction of one or the other locals, insofar as the changes
are concerned." This is a subtle distinction that I doubt the employees would
grasp. In any event Respondent is at best mistaken as to the rights of new employees
under the contracts .3
As admitted in Respondent's brief, the "nub of the charges" here involves the
union-security provision of the contracts and their relation to Respondent's comments
about the employees being free to join or not to join unions. Having found these
comments to have violated Section 8(a)(1) and (5) I would and do read Respond-
ent's communications in their entirety as (1) sponsoring and encouraging the em-
ployees to disavow the Unions; (2) unilaterally modifying or attempting to modify
the collective-bargaining agreements; (3) suggesting that the employees bargain
directly with management; and (4) publicly and in general indicating and announcing
its intention not to bargain in good faith as required by the Act.
IV. 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, I shall recommend that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Nickey Chevrolet Sales, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Locals 701 and 731 are labor organizations within the meaning of Section 2(5)
of the Act.
3. All mechanics, apprentices and semiskilled workers, employed by Respondent
at its showroom and garage, exclusive of salesmen, polishers, undercoaters, utility
employees, washers, garage attendants, parts department employees, guards, and all
supervisors as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times since October 26, 1961, Local 701 has been the exclusive repre-
sentative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. All polishers, undercoaters, utility employees, washers, garage attendants, and
parts department employees, employed by Respondent at its showroom and garage,
exclusive of mechanics, apprentices, and semiskilled workers, salesmen, guards, and
all supervisors as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
6. At all times since October 3, 1961, Local 731 has been the exclusive repre-
sentative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
7. By refusing, on August 23, and November 21, 1962, to bargain collectively
with the above-named labor organizations as the exclusive representatives of its
employees in the aforesaid appropriate units, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
a Both sides point to an instance where one of Respondent's employees in one of the
appropriate units refused to join the Union and was given work outside the unit and re-
tained as evidence to support their respective positions; the General Counsel, that Re-
spondent was opposed to the union-shop provisions; and the Respondent that It never
made any attempt "to abrogate its recognized obligations" under the contracts. The logic
is on the side of the General Counsel.
NICKEY CHEVROLET SALES, INC. 27
Upon the foregoing findings and conclusions and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Nickey Chevrolet Sales, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the aforesaid Locals as the exclusive
representatives of all its employees in the aforesaid collective bargaining units by
(1) soliciting employees to abandon both Locals; (2) attempting to bargain collec-
tively and individually with the employees; (3) encouraging employees to refrain
from paying union dues; and (4) in effect announcing that it does not intend to
bargain with said Locals in good faith.
(b) In any like or related manner interfering with the efforts of said local Unions
to bargain collectively for the employees in the said appropriate units as the exclusive
bargaining agents in those units.
2. Take the following affirmative action which I find is necessary to effectuate
the policies of the Act:
(a) Post at its garage and showroom in Chicago, Illinois, copies of the attached
notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region shall, after being signed by an authorized repre-
sentative of the Respondent be posted immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter in conspicuous places
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Distribute copies of said notice individually to the employees by attaching
it to their paychecks.
(c) Notify the said Regional Director in writing within 20 days from the date of
the receipt of this Intermediate Report and Recommended Order what steps Re-
spondent has taken to comply herewith.5
'In the event that this Recommended Order be adopted by the Board the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OF OUR EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL NOT refuse to bargain in good faith with Automobile Mechanics
Local 701, International Association of Machinists , AFL-CIO, as the exclusive
bargaining representative of all our mechanics , apprentices and semiskilled
workers, exclusive of salesmen , polishers , undercoaters , utility employees, wash-
ers, garage attendants , parts department employees , guards, and all supervisors
as defined in the Act;
Nor with Excavating , Grading , Asphalt, Private Scavengers , and Automobile
Salesroom Garage Attendants Local No. 731, affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
as the exclusive bargaining representative of all our polishers , undercoaters,
utility employees , washers, garage attendants , and parts department employees,
exclusive of mechanics , apprentices , and semiskilled workers, salesmen , guards,
and all supervisors as defined in the Act by (1) soliciting employees to abandon
either or both locals ; (2) attempting to bargain collectively and individually
with our employees ; or (3) encouraging our employees to refrain from paying
union dues.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner refuse to bargain with said Unions
as the exclusive representatives of our employees in the aforesaid appropriate
units.
NICKEY CHEVROLET SALES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(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.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street , Chicago 3, Illinois, Telephone No. Central
6-9660, if they have any question concerning this notice or compliance with its
provisions.
The Western and Southern Life Insurance Company and Insur-
ance Workers International Union , AFL-CIO. Case No. 6-CA-
26925. April 16, 1963
DECISION AND ORDER
On February 13, 1963, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report together with a supporting brief.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
1. Substitute the following for paragraph 1(b) of the Recom-
mended Order: 2 "Interfering with the efforts of the Insurance
1 Respondent, In its exceptions and brief, has renewed arguments made in the representa-
tion matter underlying this proceeding ( 138 NLRB 538) and before the Trial Examiner,
that the Board's unit finding is Incorrect . We find no merit in these arguments . We have
found that the individual district offices of the Employer are separate administrative en-
tities through which It conducts its business operations , and that a unit consisting of all
debit insurance district agents at each such office is inherently appropriate . It is, there-
fore , Irrelevant whether, as the Employer seeks to establish , the Union may also have
attempted to organize the agents working at other district offices , or that the Board has
also grouped a number of district offices into a single unit where justified by considera-
tions which are not present here. See Metropolitan Life Insurance Company, 138 NLRB
512, and 138 NLRB 565 (Members Rodgers and Leedom dissenting).
a See Metropolitan Life Insurance Company, 141 1VLR.B 337 (Members Rodgers and
Leedom dissenting).
142 NLRB No. 5.