Schmerler Ford, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1969

175 N.L.R.B. 533 (N.L.R.B. 1969)

SCHMERLER FORD, INC
Schmerler Ford, Inc., Jim Aikey Ford, Inc., Allegra
Ford , Inc., Allen Chevrolet, Inc., Bergl Chevrolet
Sales, Inc., Fergus Ford, Inc., Charles R. Hearn,
Inc., Mac Kaye Motors, Inc., Mc Anary Ford,
Inc., Mont Clare Motor Sales , Inc., Nielsen
Chevrolet, Inc., Oak Park Dodge, Inc., O 'Connell
Chev., Inc., Jack O'Donnell Chevrolet, Inc.,
George C. Poole , Inc., Suburban Buick Co., Inc.,
Thompson Chevrolet, Inc., Bartell Motor
Company, Inc., Norwood Motors, Inc., West Gate,
Lincoln-Mercury, Inc., Ridge Motors, Inc.,
Scudder Buick , Inc., Nelsen-Hirschberg , Inc., Z.
Frank Chevrolet Co. and American Federation of
Professional Salesmen . Cases 13-CA-8598,
13-CA-8600, 13-CA-8627, 13-CA-8628,
13-CA-8629, 13-CA-8630, 13-CA-8631,
13-CA-8632, 13-CA-8633, 13-CA-8634,
13-CA-8635, 13-CA-8636, 13-CA-8637,
13-CA-8638, 13-CA-8639, 13-CA-8640,
13-CA-8641, 13-CA-8669, 13-CA-8670,
13-CA-8671, 13-CA-8672, 13-CA-8673,
13-CA-8715, and 13-CA-8716
April 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On January 22, 1969, Trial Examiner A. Norman
Somers issued his Decision in the above proceeding,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondents filed exceptions and a supporting brief.
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 these cases to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and supporting brief, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents, their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
533
A. NORMAN SOMERS, Trial Examiner. On an order
issued November 15, 1968, consolidating 24 complaint
cases for hearing and decision, I held a hearing on
November 18, 1968, in Chicago, Illinois, in which all
parties, the General Counsel, the Respondents, and the
Charging Union, were represented. The complaints against
each of the 24 Respondents had been issued on separate
charges against each, filed by American Federation of
Professional Salesmen (hereafter AFPS or the Union) '
The complaint in each instance alleges that Respondent
there named refused, in violation of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended, to
bargain collectively with AFPS as the representative of
the employees of said Respondent pursuant to a
certification issued by the Board following a Section 9
election held in respect to the employees of each
Respondent. In this, the unfair labor practice proceeding
now before us, each Respondent denies it violated Section
8(a)(5) and (1) on the same grounds on which, in the
representation proceeding, it resisted certification of the
AFPS The answer, in each instance, further disputes that
the AFPS sent a legitimate request for bargaining within
the confines of the applicable certification as issued
I THE REPRESENTATION PROCEEDINGS CULMINATING
IN THE 24 CERTIFICATIONS
Respondents are retail automobile dealers whose
respective premises or establishments are separately
located within six counties in the Metropolitan Chicago
area The AFPS conducted organizing activities among
the salesmen respectively employed in these
establishments, and filed with Region 13 of the Board
separate petitions for representation in respect to a
number (some 70-odd) automobile dealers in the area. All
of them (termed the "Employer" in each such Section 9
proceeding) had the same legal representation. These were
Mr. C David Burns, executive vice president of the
Employers' Association of Greater Chicago (hereafter
Burns or the Employers' Association) and Attorneys
George B. Christensen and Richard F. Vitkus, of the firm
of Winston, Strawn, Smith & Patterson, the latter being
the attorneys for the Respondents in this consolidated
complaint proceeding. These RC petitions were
consolidated for purposes of hearing and preelection
decision among three groups of employers, and the group
within which a case was consolidated had no significance
other than the sequence in which the respective RC
petitions were filed or the preelection hearings in respect
to them held Each of the 24 Respondents before us was
in one of these three groupings, and each group, or
consolidated RC case, was identified by the name of the
Employer whose RC number happened to have been the
earliest in the group (in the same way, for example, as in
the consolidated CA cases before us, the Respondent with
the pilot name, Schmerler Ford, Inc., happens to have the
The respective charges were filed, all in 1968 , during the period from
August 20 to and including October 14, and the corresponding complaints
were issued from September 27 to and including October 18 The specific
dates are listed in the Index of G C Exh 1, which is the formal exhibit
containing copies of the charge , complaint , and answer in each instance
These, along with the respective proofs of service , are G C Exh l(a)
through l (ggqqq) The order of consolidation issued November 15 is G C.
Exh I (sssss), and the Index is G C Exh 1 (ttttt)
175 NLRB No. 90
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earliest CA number). The three consolidated preelection
hearings were held before the same hearing officer, and in
each of the three consolidated RC proceedings, the
Regional Director issued a separate Decision, Order, and
Direction of Election. The Decision, Order, and Direction
of Election in each instance shows the group in which a
given Respondent before us was involved. Thus, the
so-called Fencl-Tufo Chevrolet, Inc., group involved RC
petitions separately filed in respect to 39 Employers, and
of them 14 are Respondents in our consolidated complaint
case; the Borg Pontiac case involved 11 Employers, and of
them 3 are Respondents before us, and finally, the George
C Poole group involved 23 Employers, and of them 7 are
Respondents before us. This completes the roster of 24
Employers (the Respondents in the unfair labor practice
case before us), in which the AFPS was successful in the
respective elections held among the employees (the
salesmen ) of the various Employers that had been involved
in the RC proceedings.'
Although these RC proceedings are all matters of
"judicial" or "official" notice,' pertinent documents in
these RC proceedings have, on consent of the parties,
been placed in the record before us as sensory aids in
taking such official notice. The documents in the
representation cases of which copies have been included in
the record of the instant case are: (a) the Decision, Order,
and Direction of Election issued by the Regional Director
in each of the three consolidated RC cases, (b) the
Petition for Review filed in each instance by counsel for
the Employers, and (c) the Board's orders denying the
said petitions. They also include the copies of the
respective Certifications of Representative in respect to
each of the 24 Respondents here involved, based on the
results of the election in each such instance. All of these
documents in the RC cases have been placed in the record
before us on the basis of the three groups in which they
happened to have been consolidated in the preelection
stage. Thus, in the Fencl-Tufo case, copies of these three
relevant preelection documents (the Direction of Election,
the Petition for Review, and the Board's telegraphic order
of denial) have been placed in our record as General
Counsel's Exhibits 2, 3, and 4, respectively, and the
respective Certifications of Representative issued to the
AFPS in respect to each of the 14 Employers in that
Fencl-Tufo group in which the AFPS won the election
(supra, fn 2) are in the record before us as General
Counsel's Exhibits 5(a) to 5(n), inclusive. In the Borg
Pontiac group, the copies of the corresponding preelection
documents have been placed in our record, respectively, as
General Counsel's Exhibits 6, 7, and 8, and copies of the
respective Certifications of Representative to the AFPS in
respect to the three Employers in that group in which the
AFPS won the election are in the record before us as
General Counsel's Exhibits 9(a), (b), and (c). Finally, in
the George C. Poole group (and completing our roster of
24 Respondents), the corresponding set of preelection
documents there are General Counsel's Exhibits 10, 11,
and 12, and the respective Certifications of Representative
to the AFPS in respect to the 7 Employers in that group
are in the record before us as General Counsel's Exhibits
13(a) through 13(g). Also, in an effort to assist further in
'As the Decision, Order, and Direction of Election in each grouping
stated, the consolidations were limited to the steps preceding the election,
and in every instance, the cases were severed for purposes of election and
postelection processing Under the designation, "The Units for Collective
Bargaining ," a separate election was directed for each separate unit of
employees of the respective Employers
that respect, there is attached hereto, as Appendix A, a
list of the Respondents in the order of their CA numbers,
opposite which are three columns. The first such column
gives the corresponding number of each such Respondent
as Employer in the RC case The second and third
columns state, respectively, the General Counsel's Exhibit
number of the copy of the Certification of Representative
in respect to each such Respondent, and the respective
dates the certifications were issued
As the Directions of Election and Petitions for Review
indicate, there is a common basis on which all the
Employers resisted the respective petitions for
representation as filed by AFPS. Preliminarily, however,
we state the matters which were not in dispute in the
representation proceeding, nor are they in dispute here.
The parties agreed that the Employer in each instance is
engaged in the retail sale and distribution of automobiles,
trucks, and related products and has an annual revenue,
and sells and ships products in an annual amount outside
of Illinois to an extent meeting the jurisdictional
requirements of Section 2(6) and (7) of the Act, and the
salesmen in each separate instance constitute an
appropriate bargaining unit within the meaning of Section
9(b) of the Act. It is also not disputed that in the election
held separately among the employees of each such 24
Employers, the AFPS polled a majority of the votes
among such employees.
The dispute which was raised in common by these
Employers in the representation cases was over whether
AFPS is a "bona fide" labor organization within the
meaning of the Act, or even if it is such, whether it would
effectuate the policies of the Act to entertain the
representation petitions of the AFPS in the light of its
purpose as asserted by Respondents ' The Employers'
contention that the AFPS is not a "bona fide" labor
organization was premised on the following. that though
the AFPS is an organization in which employees
participate and which purports to exist for the purpose of
dealing with Employers in respect to terms and conditions
of employment, this is superseded by evidence
demonstrating that it is "a bold conspiracy to foist an
employer price-fixing program on the automobile dealers
in the six-county Chicago area." The evidence in support
of that contention included (a) letters by the AFPS to
Employers, in which, while claiming majority designation
and requesting recognition for the purpose of collective
bargaining in respect to wages, hours, etc , it also stated
that under its contemplated bargaining proposals it "could
guaranty you [the Employer] and all the dealers in the
area, a minimum net profit (I repeat NET) equal to three
percent of the list price of the unit," (b) literature
distributed by AFPS to various automobile salesmen, in
which, in answer to "why" salesmen should join AFPS,
stated, among other reasons, that it would "put your
'See LTV Electrosystems, Inc, 166 NLRB No 81, enfd 388 F 2d 683
(C A 4), Follett Corp, 164 NLRB No 47, enfd 397 F 2d 91 (C A 7),
Sec 9(d) of the NLRA
'Three other such Respondents (those who were in the Borg Pontiac
group, G C Exhs 6, 7, and 8, and who are the respective Employers in the
Certifications of Representative whose copies are included in our record as
G C Exhs 9(a), (b), (c) (see Appendix A attached) raised an additional
objection based on the claimed inadequacy of the authorization cards in
connection with the "showing of interest " required as a predicate for
holding an election The Board, under its established doctrine that
"showing of interest" cards are matters of inspection by the Board's agents
and not litigable , rejected that ground of challenge , and it needs no further
comment
SCHMERLER FORD, INC. 535
employer back into retail business by guaranteeing him a
net profit, after all expenses are paid, equal to three
percent of the list price," and (c) discussions in union
meetings of a possible pricing formula to be proposed to
Employers in contract negotiations. The claim of the
Employers was that such an agreement violated the
antitrust law within the doctrine of Allen Bradley
Company v. Local 3, 1BEW, 325 U S. 797; Meat Drivers
v US, 371 U.S. 94; and U.M.W. v. Pennington, 381
U.S. 657, and that under the pronouncement in Southern
Steamship, v. NLRB , 316 U.S. 31, 46-47, that the
Board must administer its law with due regard to the
policies of other Federal laws, the Board should hold
AFPS to be not a "bona fide" labor organization or in
any event not fit to be certified as a bargaining
representative.
In substance, the Regional Director rejected the
Employers' contention as a non sequitur: assuming that
such an agreement if ever made would be offensive of
antitrust principle (a matter which he did not deem called
upon to determine), it did not follow that the organization
was not a labor organization within the meaning of the
Act or that it should be barred from acting as
collective-bargaining representative even if chosen as such
bargaining agent by the employees, on this type of thing,
what the AFPS, if chosen as bargaining representative,
might propose, the Employer could dispose by saying nay
to price fixing and aye to working terms and conditions.
Whether my sketch of the Employers' contention and
the rationale of the Regional Director's rejection of it
embraces all the nuances is unimportant. What counts, at
this adjudicative level at least, is that the contention was
rejected, first by the Regional Director in his three
separate Decisions and Directions of Election, and then by
the Board in its denials of the respective Petitions for
Review as raising no substantial issue. And so it was
determined that in respect to all of the petitions, the
AFPS is a labor organization within the meaning of the
Act and that an election was appropriate in each separate
instance. As stated, and as is not denied, these elections
were held, the AFPS polled a majority among the
employees of 24 of these Employers, and the Board issued
separate Certifications of Representative in respect to
each such Employer, covering the unit separately
described in each Certification. And these are the 24
Respondents in the consolidated case before us.
II THE COMPLAINT PROCEEDINGS
A. The Pleadings
After the respective Certifications issued, the Union
(i.e. the AFPS) sent letters, and in one instance a wire,
requesting bargaining All of these were totally ignored by
Respondents As previously indicated, the Union filed
charges and on them the General Counsel filed
complaints, separately against each Respondent, alleging
refusal to bargain in violation of 8(a)(5) and (1).
Respondents, by their counsel, correspondingly filed
separate answers The answers, in each separate instance,
admitted the jurisdictional allegations, the appropriateness
of the respective bargaining units, the majority polled by
the Union in respect to each, and the issuance of the
respective Certification As also stated, the answers denied
nevertheless that the Union was the legal bargaining
representative, because the respective Certifications were
invalid "for each and all of the reasons asserted in the
representation proceedings." There is no claim that there
is newly discovered evidence on this issue, and all parties
agree that the Trial Examiner is bound by the rulings and
the Certifications in the representation proceedings The
denial by Respondent in each such instance is merely to
preserve Respondent's position on ultimate review,-
namely, that the Union's purpose was to effectuate a
price-fixing agreement among the auto dealers in the area.
B The Failure and Refusal To Bargain
The above is essentially the basis also on which
Respondents respectively deny the allegations made, in
each separate complaint, that the Union requested
bargaining and Respondents have failed and refused to
bargain The requests for bargaining were addressed to the
aforementioned Burns, executive secretary of the
Employers' Association of Greater Chicago, with copies,
as stated on the face of each request, by the notation, "cc
All dealers listed above," to every dealer in respect to
which a certification issued. The denial in each answer
that the Union requested bargaining is accompanied, as
earlier stated, with the assertion (par. VIII in each
instance) "that no demand for bargaining within the
confines of its certification, valid or invalid has been made
by the Union " The explanation for this assertion, as
given by Respondents at the hearing before me, was that
by sending the succession of letters to Burns of
Employers' Association, the Union thereby confirmed the
position Respondents had asserted in the representation
proceedings - that the Union had as its purpose a
price-fixing arrangement among the dealers in the Chicago
area. But that position is premised on the very position
which was advanced to and rejected by the Board in the
representation proceedings.'
Respondents' counsel argue further that Burns ceased
to be the agent of Respondents as each Certification
issued, from which it follows (so counsel argue) that no
bargaining request was sent to the Respondents. But
Burns of Employers' Association represented all of the
Employers in these representation proceedings from the
outset; and in all formal proceedings, including motions,
decisions, and orders, he was consistently included among
those notified. He therefore continued as agent at least for
the purpose of receiving the bargaining demand. Further,
'The Board recently passed upon that same issue in a related situation in
an unfair labor practice case See Borek Motor Sales, Inc . 173 NLRB
No 155 The complaint there alleged that the employer in that case
(likewise a retail automobile dealer in the Chicago area ) had discharged a
salesman in violation of Section 8(a)(3) and (1) for joining and assisting
the Charging Union (the AFPS, which then had been affiliated with
another union , but with which it has since disaffiliated) The employer in
that case ( represented by the same counsel who appear for Respondents
here) asserted, among other things, that "the Charging Party does not
qualify as a labor organization under Section 2(5)" and, in any event, that
"the Board has an obligation to deny the use of its processes to the
Charging Party because [it] allegedly intends to achieve its 'normal
labor objectives' by conspiring with employers , in violation of the Sherman
Act, to fix car prices " The Board stated-
Assuming arguendo , as Respondent maintains , that the Charging Party's
proposed bargaining platform is a blueprint for an unlawful puce-fixing
conspiracy, any employer confronted with such a bargaining proposal
would be free to reject it and could not be compelled to do otherwise
Moreover , so far as the record shows, the Charging Party has not
predicated its existence on its ability to obtain these allegedly unlawful
price-fixing agreements from employers , it has merely indicated that it
considers such agreements to be a means, albeit a preferred one, of
securing employee benefits In view of these circumstances, we can
perceive no statutory justification for refusing to accord the Charging
Party recognition as a labor organization under Section 2(5), and we
therefore affirm the Trial Examiner's finding in this respect.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the letters on their face , informed Burns and also the
dealers by the copies sent to them as follows:
If you do not represent any of the above named
Automobile Agencies, please notify us.
In these circumstances, one would have expected that
Burns, or if not Burns, the dealers listed in the letters,
would by such silence cause the Union to understand that
the Employers ' Association represented , or was at least
the agent of, these Employers for receiving the letters
containing the bargaining request illustrative of how a
dealer would normally respond on reading such a letter if
he is not represented by Burns' Association was the action
of the one dealer listed in the letters , who was not among
the 24 Respondents before us. That dealer, one Nickey
Chevrolet, Inc , was mentioned in the first of the letters
sent by the Union, - the one sent July 2. The Union in
the July 2 letter listed 16 of the Respondents before us
(To explain: by the end of June, Certifications were issued
in respect to 16 of the 24 dealers who are Respondents
before us (see attached Appendix A), while the remainder
were then awaiting processing of postelection matters
peculiar to them, which were ultimately resolved and are
not relevant here ) The Union's letter stated that when it
received Certifications in respect to the balance, it would
send requests for bargaining in respect to them. On July
I, Certifications were issued in respect to two more of the
dealers (who are Respondents here), and the Union on
July 5, sent a letter to Burns naming the dealers in the
two additional Certifications, but otherwise identical with
the July 2 letter, including the "all Dealers listed above"
notation Both these letters asked that bargaining
commence within 10 days On July 31, the Union again
sent a letter to Burns, with "copy to all above Dealers." It
called attention to the failure to respond to its letters of
July 2 and 5, and again asked these dealers to bargain
with it. It again listed all the dealers in respect to which it
received certifications However, it did not list Nickey
Chevrolet, the one such dealer that is not among the 24
Respondents before us The Union explained:
Nickey Chevrolet has stated that they do not wish to
have your [Employers'] Association represent them,
therefore we shall assume that you do not represent
them.
So if the Employers that are Respondents before us did
not by the sense of the preceding letters understand that
their prior silence reasonably conveyed to the Union that
the Employers' Association represented them, the letter of
July 31, which told them of the response by Nickey
Chevrolet, which did not wish to be represented by Burns'
Association, put them on notice that silence thereafter
would inescapably convey that Burns represented them or
at the very least was their agent to whom to communicate
the bargaining request, of which each such Respondent
was in any event being informed by the copy separately
sent to it Indeed, every reasonable inference is that the
total failure of the 24 Employers that are Respondents
before us to respond reflected a concerted understanding
of that group that however the Union put it in their
letters, Respondents would not bargain at all until the
ultimate determination on review of the issue raised in the
representation proceeding - namely, the claimed
price-fixing objective of the Union. Reverting, for a
moment, to the letters of July 2 and 5 (which, in
combination , listed 18 of the Respondents ) they stated,
"Please be advised that the [Union] wishes to commence
negotiating for a contract in regard to rates of pay, hours
of work and other conditions of work and other conditions
of employment on behalf of all Automobile Salemen
employed at the following Automobile Agencies." The
letter of July 31, which stated that there had been no
response to its letters of July 2 and 5, and which again
asked Respondents to bargain, further stated:
Our Union is sincere in trying to reach an agreement
with the Dealers where we have been certified as the
bargaining agent. Our Union Would [sic] again like to
request that the following Dealers meet with us for the
purpose of bargaining in regards to hours of work, rates
of pay and other working conditions : [ Naming them.]
On August 16, the Union wrote Burns again with
"copies to all Dealers concerned." It covered two subjects.
As to the first subject, the Union stated*
The Union would like to offer a suggestion as to how
the negotiations could be handled, in order to shorten
the number of meetings that will be needed before an
agreement is reached. We think that if you were to hold
the first bargaining session on a group bases [sic] and
let the Union give you a proposal to cover all the
Automobile Dealers where we have been certified, then
this might shorten the negotiations considerable [sic] if
after the first meeting on the group basis, you decide
that you do not want to continue bargaining as a group,
and the Dealers you represent would rather continue on
a individual negotiating course, it would be theirs and
your privilege [sic] to discontinue the group negotiations
and continue on a individual basis as you and I both
know is their right under the law. We beleive [sic] that
we could work out a proposal at such a group
bargaining session that would be satisfactory to all.
After geting [sic] some clarifications from the
Automobile Dealers as to some of their present working
conditions, we would at that time present you with a
proposal covering rates of pay, hours of work and other
working conditions.
The second subject concerned the settlement
negotiations of a strike at Thompson Chevrolet, Inc., one
of the Respondents herein. The certification in respect to
that Respondent was one of the earliest issued (see
attached Appendix A), and so it is among the dealers
listed in the letter of July 2 and again in the one sent by
the Union on July 31 In the letter sent on August 16, the
Union , after suggesting "how the negotiations could be
handled," further stated,
At a bargaing [sic] session set up to settle the
Thompson Chevrolet, strike, you stated that the
Employers group didn't know just what they wanted to
do about bargaining yet, and it might be some time,
because your counsel Mr George Christensen wanted to
make a test case of the price fixing scheme he has been
harping about for so long, without any results. You
stated that you thought after we filed charges for
refusal to bargain that, then this would be his defense.
If this is your plans I believe you are leading your
clients down a long lonsome [sic] road, as we have
never made any demands on you that had any
resemblance to any price fixing demands. I believe this
sort of action would create an undue hardship on the
Automobile Dealers running to the N L. R.B for
hearings and producing records ect. [sic], this would be
a futile effort on your part.
There too, as stated, the Union sent "copies to all
Dealers concerned ," and so the letter of August 16 put all
of these Respondents on notice to the effect that Burns, in
negotiating the settlement of a strike among one of their
number , also discussed and was speaking for all of them
SCHMERLER FORD , INC. 537
in regard to the bargaining request.
After August 16, request for bargaining were then sent
to the remaining few Respondents as certifications issued.
See attached Appendix A. These were a letter sent August
17, a telegram issued on September 18, and finally, a
letter sent on October 7. This completed the bargaining
requests made to all 24 Respondents. As stated, supra,
footnote 1, the Union filed charges against the separate
Respondents, from August 20 through October 14, with
corresponding complaints issued by the General Counsel
from September 27 through October 18. The complaints
followed the same sequence of paragraphs in respect to
each subject covered (i.e., the commerce allegation, the
unit , the election, the certifications, the bargaining
requests, and the refusal). The answers (filed from
October 10 through 29), respectively followed the same
sequence as the complaints. As noted, the answer in each
instance (par. VIII), denies the allegation in corresponding
paragraph VIII of the complaint that the Union on the
date or dates there applicable requested Respondent to
bargain. Along with that denial, the answer in each
instance asserts that "the Union made no demand for
bargaining within the confines of its certification, valid or
invalid."
The Union thereupon, on November 12, wrote again.
This time the Union listed all 24 Respondents, along with
their respective CA numbers, and addressed the
bargaining request to both Burns and Attorney George B.
Christensen with "copies to all above Automobile
Dealers" (i.e., all the Respondents). On motion of the
General Counsel at the hearing before me, the complaint
in each instance (par. VIII) was amended to include the
request sent on November 12, in addition to the dates of
the prior requests as set forth in paragraph VIII of each
complaint. On motion of the Respondents, paragraph
VIII of the answer in each instance was correspondingly
amended to embrace also the request sent on November
12.
C. Findings and Conclusions
Without laboring the matter further, the
correspondence leaves no question but that the Union duly
requested each Respondent to bargain collectively with it
as the exclusive bargaining representative of the employees
in the unit of employees described in the Certification
applicable to such Respondent (which unit is restated in
par. V of the respective complaints in each instance). I
make this finding quite independently and without regard
to the testimony of Secretary-Treasurer Griffith of the
Union, at the hearing, which confirms as the fact what
would be the normal inference from the kind of silence by
the Respondents which had an eloquence of its own -
that Burns was indeed the agent of these dealers at least
for receiving bargaining demands. At all events, it is
hereby found, in respect to each Respondent, in the same
manner and with the same intent, force and effect as if
each said Respondent were the sole Respondent at a
separate hearing, as follows:
(a) Respondent in each instance is a retail automobile
dealer in the Greater Chicago area in Illinois, has a gross
annual revenue of at least $500,000 and annually sells and
distributes at least $100,000 of its products outside the
State of Illinois, and is engaged in commerce within the
meaning of the Act.
(b) The employees of said Respondent, consisting of its
salesmen (and excluding such other persons as are stated
in the Certification of Representative to be thus excluded)
constitute an appropriate bargaining unit within the
meaning of Section 9(b) of the Act.
(c) The Union is a labor organization within the
meaning of the Act.
(d) At an election by secret ballot preceding said
Certification, a majority of the eligible employees in said
unit designated the Union as the bargaining representative
of the employees in said unit.
(e) Pursuant to the results of said election, the Board
on the date stated in the Certification, and as also appears
in the attached Appendix A, issued a Certification of
Representative to the Union to the effect that the Union
is the exclusive bargaining representative of the employees
in said unit.
(1) At all times from the date of said Certification, the
Union has been and has remained the exclusive
representative of said employees for the purpose of
collective bargaining in respect to wages, hours, and terms
and conditions of work within the meaning of Section 9(a)
of the Act.
(g) The Union, since on or about the dates stated in
paragraph VIII of the complaint, as amended, has duly
requested the Respondent to bargain with it as exclusive
bargaining representative pursuant to said Certification.
(h) Said Respondent has failed and refused and
continues to fail and refuse to bargain collectively with the
Union, thereby violating Section 8(a)(5) and (1) of the
Act.
111. REMEDY
It will be recommended that an order issue requiring
each Respondent to cease and desist from its refusal to
bargain with the Union in accordance with the
Certification of Representative issued in respect to it, and
affirmatively directing said Respondent to bargain
collectively with the Union with respect to rates of pay,
wages, hours of employment, and other conditions of
employment of the employees in the unit described in said
Certification. Since the Union has already duly requested
such bargaining of the respective Respondents, it would
seem supererogatory to repeat the request still another
time. However, to make assurance doubly sure, the
requirement to bargain will include the direction that
Respondent bargain "on request." Unless any Respondent
shall indicate to the contrary, a letter addressed to Burns
of Employers' Association or to counsel for the
Respondents, or both, naming said Respondents, with
copies to each, shall be deemed to have the same intent,
force and effect as if separately addressed and sent to each
such Respondent individually, in the same manner as the
communications heretofore sent have been held and
construed to have the same intent, force and effect as if
directly sent to each such Respondent individually. Should
the Union nevertheless send a letter to each such
Respondent invidiually, it shall be deemed as simply
making assurance doubly sure without affecting the
validity and intent of the kind of communication
theretofore sent, in which bargaining was requested, and
has been held to have had the same intent, force and
intent of a request separately sent in each instance.
The notice to be posted by each Respondent will be
exemplified by Appendix B, which sets forth the notice to
be posted by the Respondent, whose name happens to be
pilot name in this consolidated proceeding (namely,
Schmerler Ford, Inc.). Each Respondent shall post a like
notice in its name, which sets forth the unit in the
Certification of Representative issued in respect to it.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The written notice to the Regional Director, stating
what steps Respondent has taken to comply with the
Order, may be sent individually, or in a joint letter, or in
a letter by the attorneys and/or agents of Respondents as
a group. A joint letter or a letter by the attorneys and/or
agents will be construed as merely intended to save the
time, paper, and postage that would be involved if a
separate notice were sent by each Respondent individually
to the Regional Director.
For purposes of determining the effective period of
duration of the certification, the initial year of
certification shall be deemed to begin on the date each
Respondent, respectively, commences to bargain in good
faith with the Union as the recognized bargaining
representative in the said appropriate unit.`
Upon the foregoing findings and conclusions and the
entire record in the case, and pursuant to Section 10(c) of
the Act, I recommend the Board issue the following:
ORDER
Each Respondent herein, with the same intent, force
and effect as if in a separate case and in a separate order
individually issued in respect to it, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with American
Federation of Professional Salesmen as the exclusive
collective-bargaining representative in the appropriate unit
as stated in the Certification of Representative issued to it
and restated in paragraph V of the complaint issued in
respect to it (of which the unit described in the
Certification issued in respect to Schmerler Ford, Ford,
Inc., is typical, and allowing for such variance therefrom
as may appear in the Certifications issued respectively to
the other Respondents) as follows:
All automobile and truck salesmen employed at the
Employer's [naming the Respondent's particular city],
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) Interfering with the efforts of said Union to
negotiate for or represent the employees in the
appropriate unit as the exclusive collective-bargaining
representative.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request (see the section of this Decision
entitled "Remedy"), bargain collectively with American
Federation of Professional Salesmen, as the exclusive
representative of the employees in the said unit, with
respect to rates of pay, wages, hours of work, and other
terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Post at its premises or establishment copies of the
attached notice marked "Appendix B," allowing in each
separate instance for the name of the Respondent and the
unit as defined in the Certification of Representative
issued in respect to it.' Copies of said notice, on forms
provided by the Regional Director for Region 13, after
being duly signed by an authorized representative of the
Respondent, 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 the said Regional Director, in writing (see
the section of this Decision entitled "Remedy"), within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith!
The purpose of this provision is to ensure that the employees in the said
unit will be accorded the services of their selected 'bargaining agent for the
period provided by law. 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); Burnett Construction Company, 149 NLRB 1419,
1421, cnfd. 350 F.2d 57 (C.A. 10); Thompson Machine & Tool Corp., 172
NLRB No. 193, fn. 1.
'In the event that this Recommended Order is 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 is enforced by a decree of a 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
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps
Respondents has taken to comply herewith."
APPENDIX A
Respondent
Number in
Complaint
Case
Number in
RC Case
Exhibit number
of Copy of
Certification
Date of
Certification
Schmerler Ford, Inc. 13-CA-8598 13-RC-11476 G. C. Exh.5(a) 6/5/68
Jim Aikey Ford, Inc. 13-CA-8600 11535 13(a) 7/1/68
Allegra Ford, Inc. 13-CA-8627 11428 9(a) 6/27/68
Allen Chevrolet, Inc. 13-CA-8628 11455 5(a) 6/7/68
Bergi Chevrolet Sales, Inc. 13-CA-8629 11472 5(c) 6/7/68
Fergus Ford, Inc. 13-CA-8630 11531 13(b) 6/27/68
Charles R. Hearn, Inc. 13-CA-8631 11422 5(d) 6/5/68
SCHMERLER FORD, INC. 539
MacKaye Motors, Inc 13-CA-8632 11418 5(f) 6/5/68
McAnary Ford, Inc. 13-CA8633 11429 5(g) 6/5/68
Mont Clare Motor Sales, Inc. 13-CA-8634 11438 5(h) 6/5/68
Nielsen Chevrolet, Inc 13-CA8635 11471 5(i) 6/6/68
Oak Park Dodge, Inc. 13-CA-8636 11517 13(c) 6/25/68
O'Connell Chev , Inc. 13-CA8637 11441 5(e) 6/7/68
Jack O'Donnell Chevrolet, Inc 13-CA-8638 11446 13(d) 6/27/68
George C Poole, Inc 13-CA-8639 11527 13(e) 6/25/68
Suburban Buick Co , Inc 13-CA-8640 11440 9(b) 6/27/68
Thompson Chevrolet, Inc. 13-CA-8641 11395 50) 6/6/68
Bartell Motor Company, Inc. 13-CA-8669 11419 5(k) 8/5/68
Norwood Motors, Inc 13-CA-8670 11543 13(f) 7/1/68
West Gate, Lincoln-Mercury, Inc 13-CA-8671 11436 5(1) 8/16/68
Ridge Motors, Inc. 13-CA-8672 11521 13(g) 8/28/68
Scudder Buick, Inc. 13-CA-8673 11499 5(m) 8/16/68
Nelsen-Hirschberg, Inc 13-CA-8715 11396 5(n) 10/1/68
Z. Frank Chevrolet, Inc 13-CA-8716 11444 9(c) 9/13/68
APPENDIX B*
NOTICE TO ALL 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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
American Federation of Professional Salesmen as the
exclusive bargaining representative of all our employees
in the following appropriate unit:*
All automobile and truck salesmen employed at the
Employer's Bensenville , 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.
WE WILL NOT interfere with the efforts of said Union
to negotiate for or represent the employees in the
appropriate unit as the exclusive collective-bargaining
representative
WE WILL bargain collectively with the Union as the
exclusive representative of the employees, and if an
understanding is reached we will sign a contract with
the Union
SCHMERLER FORD, 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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-828-7572.
*Typical notice by each Respondent , the name and the unit to correspond
to the one in the Certification of Representative issued in respect to it