S & K Chevrolet

National Labor Relations Board - Board Decisions

Mar 22, 1972

195 N.L.R.B. 985 (N.L.R.B. 1972)

S & K CHEVROLET
Arthur H. Kenny d/b/a S & K Chevrolet and Team-
sters, Chauffeurs , Warehousemen and Helpers Local
Union No. 490, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Case 20-CA-6606
March 22, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On December 15, 1971, Trial Examiner Martin S.
Bennett issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a statement
in answer to Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the, Na-
tional Labor Relations , Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, brief,
and statement of the General Counsel and has decided
to affirm the Trial Examiner's rulings, findings, and
conclusions' and to adopt, his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Arthur H. Kenny d/b/a/ S & K Chevrolet, Vallejo,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
' Chairman Miller joins in the result hereon the ground that the language
of the stipulation establishes the parties' intent to include in their agreed-
upon unit "all automobile salesmen," a group in which Austin O'Malley
clearly fits. The Tribune Company, 190 NLRB No. 65.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at San Francisco, California, on September 30, 1971.
The complaint, issued April 29 and based on charges filed
February 24 and April 27, 1971, by Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union No. 490, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, here in the Union, alleges that
Respondent, Arthur H. Kenny d/b/a S & K Chevrolet, had
engaged in unfair labor practices within the meaning of Sec-
tions 8(a)(5) and (1) of the Act. A brief has been, submitted
by Respondent.
Upon the entire record in the case, I make the following:
195 NLRB No. 177
FINDINGS OF FACT
985
I JURISDICTIONAL FINDINGS
Arthur H. Kenny d/b/a S & K Chevrolet is located at
Vallejo, California, and is engaged in the retail sale and ser-
vice of automobiles. Respondent annually enjoys gross reve-
nues in excess of $500,000 and receives goods valued in excess
of $50,000 which are purchased directly outside the State of
California. I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers Local
Union No. 190, International Brotherhood of Teamsters;
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
The Union was certified by the Regional Director for Re-
gion 20 as the collective-bargaining representative of Re-
spondent's salesmen after election proceedings in Cases 20-
RC-9285 and 20-RM-1243. Respondent thereafter
admittedly refused to bargain because it disputed the count-
ing of one challenged ballot which resulted in a five to four
majority for the Union. While disputing the emphasis given
by the Regional Director to certain facts in his report on the
challenged ballot, Respondent, in essence, protests that it
should have been given an evidentiary hearing on this issue.
B. The Appropriate Unit
The complaint alleges, Respondent admits, and I find that
all automobile salesmen at Respondent's Vallejo, California,
facility, excluding all other employees, guards, and super-
; visors, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
C. The Representation Case; Majority Representation in the
Appropriate Unit
Pursuant to a stipulation for certification upon consent
election, an election was conducted on June 5, 1970, among
the employees in the above described appropriate unit. The
election eligibility list submitted by Respondent to the Re-
gional Director contained eight, names and all eight duly
voted. A ninth voter, Austin O'Malley, presented himself at
the polls and his vote was challenged by the Board agent
because his name did not appear on the list of eligibles. The
tally of ballots reflected four votes for the Union, four for
Respondent (the Employer), and one challenge, namely, 0'-
Malley. It is Respondent's position that O'Malley was an
irregular part-time worker who should be excluded from the
unit.
Respondent points out that during the investigation of the
challenged ballot, it repeatedly offered, in conversations with
the Regional Director and investigating personnel, to assist
the Regional Director. Thus, on June 12, it contended that
O'Malley was an irregular part-time employee who was
closely allied with management and offered to produce "wit-
nesses, testimony, assistance and evidence." On June 16, it
made the same argument, setting forth details treated below.
On August 20, another contention to the same general effect
was forthcoming.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 1, 1970, based on an investigation by Re-
gional office personnel , and without an evidentiary hearing,
the Regional Director issued his report on the challenged
ballot . He there recommended that the ballot of O'Malley be
counted , stating:
The Employer contends that O 'Malley is ineligible
because he has been given special consideration. Since
1965, when O 'Malley 's health became a problem, the
Employer has allowed him to work part time and has
relieved him from floor duty and from attendance at
sales meetings . Moreover , six months ago, O 'Malley
asked the Employer to limit his earnings so that he
would be eligible for social security benefits . It was ar-
ranged that the Employer would pay him an hourly rate
for a thirty-hour week and that he would receive no
commissions . In return , the Employer agreed to give
O'Malley free use of a demonstrator and the right to
make certain customer gifts chargeable to the Employer.
Other salesmen do not have these privileges.
Notwithstanding these differences , it is clear that in
many ways O'Malley does have a community of interest
with the other salesmen . Like them, he reports to the
Employer's office to " sell cars for a regular number of
hours each week , he clears his sales with the sales
manager , and he turns in a weekly hours report to the
sales manager . O'Malley fills in on floor duty for brief
periods . He and other salesmen have the same deduc-
tions made from their earnings, they receive the same
paid vacation , and they share in the same annual bonus
based on the number of cars sold.
Under these circumstances , the undersigned finds that
O'Malley is a regular part-time salesman with a close
community of interest with the other salesmen. Al-
though the Employer has accommodated him in certain
ways, he receives the same fringe benefits as do other
salesmen and presumable [sic] he would gain from any
extension of benefits . It is therefore recommended that
the challenge to O'Malley 's ballot be overruled.
Respondent filed timely exceptions to the foregoing and, on
December 10, 1970 , the Board approved the foregoing recom-
mendation by the Regional Director and directed that O'Mal-
ley's ballot be counted. The Board noted therein that the
exceptions "raise no material or substantial issues of fact or
law which would warrant reversal of the Regional Director's
findings and recommendations , or a hearing." On December
16, the Regional Director issued a revised tally of ballots and
certified that the Union had won the election five to four. He
then , on December 30, certified the Union as the representa-
tive of the affected employees.
A consideration of the points raised by Respondent in the
proceedings herein warrant the conclusion that it carps with
the findings stemming from the investigation by the Regional
Director, but actually proffers no new evidence of such
weight which would , on its face , preponderate in favor of a
different opinion . Respondent has stressed the failure to con-
duct an evidentiary hearing by the Regional Director as an
abuse of discretion. N.L.R.B. v. Harrah's Club, 403 F.2d 865
(C.A. 9). But, for the reasons explicated herein , it appears to
the Trial Examiner that an issue as to the consideration of
conduct affecting the results of an election , as in Harrah's
Club, is distinguishable from one as to the composition of a
unit . Stated otherwise, the former involves alleged quasi-tor-
tious conduct. The latter involves more the expertise of the
agency designated to pass upon the composition of a unit.
(1) Thus, Respondent challenges the conclusion that 0'-
Malley enjoyed a close community of interest with the other
salesmen . But it is not disputed that O 'Malley was selling
automobiles for Respondent precisely like the other eight
salesmen.
(2) Respondent points to the fact that the Regional Direc-
tor's report concedes that O 'Malley enjoyed significant be-
nefits not accorded to other employees and was free from
certain other duties and obligations . But it is manifest that
any part-time employee is so situated by, his very status and
his working conditions are, perforce , different.
(3) Respondent challenges the "assumption" that O'Mal-
ley wanted to limit his working time so as not to prejudice his
eligibility for social security benefits . Respondent does not
contend that the facts are otherwise . Moreover , this begs the
basic question . The only issue is, was O'Malley a regular
part-time employee who wished to limit his earnings , whether
from his own or his employer's desires , and his lesser earnings
are not in dispute.
(4) Respondent points to the finding that O'Malley would,
in the future , presumably gain from any extension of benefits
to the other salesmen . Assuming this to be a speculation, as
Respondent contends , it is , at the very least, equivocal, and
there is nothing proffered by Respondent to show that he
would not so gain , or, for that matter , that he would . This is
not deemed to be probative herein ; stated otherwise, it is
surplusage as to the basic issue.
(5) Respondent has claimed the O'Malley earned $51 a
week regardless of how many automobiles he sold and that
he did not enjoy a draw based on commissions . This ties in
with the Regional Driector 's finding that he worked a 30-
hour week. But none of this , on its face, is inconsistent with
the status of a regular part-time employee. This is no different
than a part-time department store clerk, who, unlike full-time
clerks , does not receive a commission. Stated otherwise,
whether there was an earnings or hours restriction, this is in
no way inconsistent with his status as a regular part-time
employee.
(6) Viewed similarly is Respondent 's claim that O'Malley
is not required to work full time as do the other salesmen and
that he sets his own hours . Likewise , it stresses that he is not
required to attend sales meetings and can bestow minor gifts
to customers as part of a sale, and further, that he receives
free gas from his employer , unlike the other salesmen.
All of this is equally consistent with the view that O'Malley
was treated differently by Respondent because of unique con-
siderations . But none of this undercuts the Regional Direc-
tor's conclusion that O 'Malley was a regular part -time em-
ployee. The simple answer is that he was selling cars on behalf
of Respondent just as his coworkers did. That he suffered
particular handicaps or enjoyed some privileges does not de-
tract from the foregoing.'
(7) All of the foregoing factors were timely raised by Re-
spondent with the Regional Director . In an offer of proof at
the hearing , it also offered to show that (a) unlike other
employees , telephone calls are referred to him at his home,
when he is not on the employer 's premises, and (b) he is
covered by Respondent 's medical plan although he works less
than the 30 hours a week required of other employees for such
coverage.
I am not unaware that in many cases of this nature, an
evidentiary hearing is desirable . But Respondent , in essence,
has only disputed the weight assigned by the Regional Direc-
tor to his investigation and has not come forth with contrary
evidence. The Court of Appeals for the Sixth Circuit has
reprimanded the Board for not recognizing the common in-
' Respondent points to O'Malley's enjoying a 3-month vacation for a visit
to Ireland contrary to such extended absences for his colleagues . Totally
aside from his Irish name , and there is no offer of proof as to the Celtic origin
of his colleagues , I do not deem this to be a factor entitled to weight herein.
S & K CHEVROLET 987
terest of part-time employees with others in the unit. In-
dianapolis Glove Co. v. N.L.R.B., 400 F.2d 363 (C.A. 6).
Consistent with this fiat, the Board recently included a 68-
year-old annuitant in a unit of warehousemen-drivers and
salesclerks, pointing out that although he earned but $140 per
month, he worked on a regular part-time basis. Consolidated
Supply Co., 192 NLRB No. 234. And, in logic, whether a man
is an annuitant or whether he works less hours because of age,
is irrelevant. The sole issue is his identity of interest with the
others in the unit.
I find, on a preponderance of the evidence, that O'Malley
was a regular part-time employee whose ballot was properly
counted. I further see no substantial and material issues on
this record which warrant an evidentiary hearing on this
issue. At best, on the posture most favorable to Respondent,
O'Malley's working conditions differed, either because of age
or his unique customer contacts, but this is not enough.' I find
that the Union was and now is the majority representative of
the employees in the above described appropriate unit within
the meaning of Section 9(a) of the Act. The May Department
Stores, Co., 181 NLRB No. 109; Holiday Inns of America,
176 NLRB No. 124; Bob's Ambulance Service, 178 NLRB 1;
Fresno Auto Auction, 167 NLRB 878; and Shannon & Luchs,
166 NLRB 1011.
C. The Refusal To Bargain
There is no dispute as to this aspect of the case. On Febru-
ary 3, 1971, the Union wrote to Respondent; made reference
to its certification as bargaining representative of the sales-
men; and requested a meeting to commence negotiations for
a contract. On February 10, Respondent acknowledged re-
ceipt of the request. It went on to state that it still challenged
the eligibility of one voter, namely, O'Malley, and believed
"that neither the ultimate decision or the procedure by which
it was reached are in accordance with the law. For this rea-
son, we advise you that we are not willing to enter into
collective bargaining."
As is readily apparent, Respondent seeks to test herein the
validity of the certification. Upholding, as I have, the validity
of the certification, I find that Respondent has refused to
bargain with the Union as the representative of its salesmen
within the meaning of Section 8(a)(5) and , derivatively, Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Arthur H. Kenny d/b/a S & K Chevrolet, is an em-
ployer within the meaning of Section 2(2) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers Lo-
cal Union No. 490, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All automobile salesmen at Respondent's facility in Val-
lejo, California, excluding all other employees, guards, and
supervisors, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Teamsters, Chauffeurs, Warehousemen and Helpers Lo-
cal Union No. 490, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America has been
at all times material herein, and now is, the exclusive repre-
sentative of all employees in the aforesaid appropriate unit
within the meaning of Section 9(a) of the Act.
2 In its brief, Respondent in fact attributes this unique status to recogni-
tion by it of his "fine record ... for many years." As I view it, this warrants
his inclusion in the unit.
5. By refusing, on and after February 10, 1971, to bargain
with -the Union as the exclusive representative of its em-
ployees in the aforesaid appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and derivatively, Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issued the following recommended:'
ORDER
Respondent, Arthur H. Kenny d/b/a S & K Chevrolet,
Vallejo, California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize Teamsters, Chauffeurs, Ware-
housemen and Helpers Local Union No. 490, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the representative of its automobile
salesmen, excluding all other employees, guards and super-
visors.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the right to self-organization,
to form labor organizations, to join or assist the above named
or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, 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 a condition of employment.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Upon request, bargain in good faith with the above
named labor organization as the representative of its sales-
men and, if an understanding is reached, embody such under-
standing in a written and signed agreement.
(b) Post at its offices at Vallejo, California, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 20
shall, after being duly signed by Respondent, be posted im-
mediately upon receipt thereof, and 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 Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 20 in writing,
within 20 days from the date of receipt of this Decision, what
steps it has taken to comply herewith.'
' 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.
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."
' In the event this Order is adopted by the Board after exceptions have
been filed, this provision shall be modified to read- "Notify the Regional
Director for Region 20, in writing, within 20 days from the date of this
Order,what steps Respondent has taken to comply herewith
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 490, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as
the representative of all automobile salesmen at our Val-
lejo, California, facility, excluding all other employees,
guards and supervisors.
WE WILL, upon request, bargain in good faith with
the above-named labor organization as the representa-
tive of the employees in the unit described above, and,
if an understanding is reached, embody said understand-
ing in a written and signed contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the right to self-
organization, -to form labor organizations,, or to loin or
assist the above named or any other labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all activities, except
to the extent that such right may be affected by an agree-
ment requiring membership ' in a labor organization as a
condition of employment.
ARTHUR H. KENNY
D/B/A S & K CHEVROLET
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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, Region 20, 13050 Federal Building, 450
Golden Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-3197.