Stevens Pontiac-Gmc, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 599 (N.L.R.B. 1989)

STEVENS PONTIAC-GMC 599
Stevens Pontiac -GMC, Inc. and Teamsters Automo-
tive Workers Union Local No. 576 , a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Case 32-CA-9533
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
HIGGINS
On a charge filed by Teamsters Automotive
Workers Union Local No. 576 , a/w International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO, on April
1, 1988 , the General Counsel of the National Labor
Relations Board issued a complaint on May 25,
1988, against the Respondent , Stevens Pontiac-
GMC, Inc ., alleging that the Respondent has been
engaged in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the National Labor
Relations Act.
The complaint alleges, in substance , that about
December 16, 1987,1 the Respondent , by certified
letter, notified the Union that it would cease oper-
ations and terminate all of its unit employees by
December 31, 1987 . The complaint further alleges
that on or about December 18, the Union, by certi-
fied letter , requested the Respondent to negotiate
regarding the effects of the Respondent 's decision,
but the Respondent failed and refused to negotiate.
The complaint alleges that this violated Section
8(a)(5) and (1).
On August 11, 1988 , the parties jointly moved
the Board to transfer the proceeding to the Board,
without benefit of a hearing before an administra-
tive law judge , and submitted a proposed record
consisting of exhibits and the parties' stipulation of
facts . On October 7, 1988, the Acting Executive
Secretary, by direction of the Board , issued an
order granting the motion , approving the stipula-
tion , and transferring the proceeding to the Board.
Thereafter , the General Counsel and the Respond-
ent filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in the case, the Board
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, at all material times prior to
January 1, 1988, was a California corporation with
i All dates are 1987 unless otherwise indicated
an office and place of business in Los Gatos, Cali-
fornia, engaged in the retail sale and servicing of
automobiles. During the last 12 months of oper-
ations, the Respondent , in the course and conduct
of its business operations , derived gross revenues in
excess of $500,000, and the Respondent purchased
and received goods and services valued in excess
of $5000 that originated outside the State of Cali-
fornia. We find that at all times material , the Re-
spondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act. We further find that Teamsters
Automotive Workers Union Local No. 576, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO has been a labor organization within the
meaning of Section 2(5) of the Act at all material
times.
II. ALLEGED UNFAIR LABOR PRACTICE
The issue is whether the Respondent refused to
bargain with the Union concerning the effects of its
decision to cease operations and to terminate all of
its unit employees , in violation of Section 8(a)(5)
and (1) of the Act, by not picking up a certified
letter, pursuant to a "no pick up" policy regarding
certified and registered mail, which contained the
demand to bargain by the Union after the Respond-
ent had communicated with the Union that it was
ceasing operations.
A. Facts
At all material times the Respondent had been a
member of Santa Clara Motor Car Dealers Asso-
ciation, which exists for the purpose, at least in
part, of representing its member-employers in nego-
tiating and administering collective-bargaining
agreements with various labor organizations, in-
cluding the Union. During the same period the Re-
spondent delegated to the Association the authority
to engage in collective bargaining on its behalf. At
all material times the Union was designated the ex-
clusive collective-bargaining representative of the
employees in the unite and was recognized as such
by the Association and the Respondent. Recogni-
tion had been embodied in a collective- bargaining
agreement effective from October 16, 1985, to Oc-
tober 15, 1988.
On or about December 16, 1987, the Respond-
ent, by certified letter, notified the Union it would
2 The bargaining unit consisted of the following- "All full time and
regular part -time lubricators, car washers, polishers, tire servicemen,
combination tow car men and miscellaneous men employed by the con-
stituent automotive dealer member -employers of the Association [includ-
ing Respondent]; excluding all other employees , guards , and supervisors
as defined in the Act."
295 NLRB No. 66
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cease operations and anticipated terminating all of
its unit employees by December 31, 1987. The Re-
spondent offered to bargain regarding the effects of
these actions on the unit employees. The letterhead
on the Respondent's letter listed the Respondent's
address as 620 Blossom Hill Road , P.O. Box 1878,
Los Gatos, California 95030.
The Union, on or about December 18, by certi-
fied letter , requested that the Respondent negotiate
regarding the effects of the Respondent's decision
to cease operations and to terminate its unit em-
ployees . The letter was sent to the identical address
printed on the letterhead of the Respondent's
letter. The Union's letter of December 18 arrived
at the Respondent's post office on or about Decem-
ber 19 . Notices informing the Respondent that a
certified letter from zip code 95126-2120 was avail-
able for pickup were placed in the Respondent's
post office box on December 19 and 24 and on Jan-
uary 3, 1988. The notices did not identify the
sender . The Respondent received the notices but
did not pick up the letter. The letter, stamped
"RETURNED TO SENDER, UNCLAIMED,"
was received by the Union about January 8, 1988.
The Respondent asserts that its policy was not to
accept certified or registered letters mailed either
to its post office box or directly to its place of busi-
ness unless the letters were sent by its manufacturer
or by a Government agency. The stipulation states
that the General Counsel has no evidence contrary
to the Respondent 's assertion, and the Union had
no knowledge of Respondent's "no pick-up policy"
at any relevant time.
On or about December 31, 1987, the Respondent
ceased operations and terminated its unit employ-
ees.
The Union made no further attempt to notify
Respondent that it wished to engage in negotiations
regarding the effects of the Respondent 's actions.
On May 6, 1988 , the Respondent became aware
of the Union's contention that it had sent a demand
on December 18, and the Respondent actually saw
the demand letter on July 18, 1988. The Respond-
ent, by letter , on or about June 6, 1988, and again
July 16, 1988, informed the Union that it was will-
ing to engage in effects bargaining. No such bar-
gaining has been sought.
B. Contentions of the Parties
The General Counsel alleges that the Respond-
ent's failure to engage in effects bargaining violated
Section 8(a)(5) and (1) of the Act. The General
Counsel contends that the letter the Union sent to
the Respondent dated December 18, 1987, was a
valid demand that was constructively received by
the Respondent. The General Counsel notes that
the Respondent 's letter of December 16 was sent
by certified mail, listed the Respondent's address,
and requested a reply.
Thus, according to the General Counsel, the
Union employed the appropriate means of response
when it chose to respond in kind to a certified
letter mailed by the Respondent. Further, the Gen-
eral Counsel argues that the Respondent must have
known, when it received a notice 3 days later that
a certified letter from the Union's zip code had
been delivered, that the letter was the Union's
reply.3 Further, the General Counsel argues,
knowledge of the letter's contents should be imput-
ed to the Respondent as the contents could have
been discovered by due diligence and on these
facts the Respondent had a duty to claim the letter
and learn its contents.
The General Counsel argues that, as the Union
made a valid demand for bargaining before the Re-
spondent ceased operations, the Union did not
waive its right to request effects bargaining. In
regard to waiver the General Counsel argues that
the Union was unaware that its valid bargaining
demand had not been accepted until the Respond-
ent had ceased operations . Thus, a renewed
demand for bargaining would have been futile.
Finally, the General Counsel requests a Trans-
marine Navigation Corp.4 type remedy to ensure
the adequacy of bargaining.
In contending that it did not violate Section
8(a)(5) of the Act, the Respondent argues that it
did not receive a "clear and unequivocal demand
to bargain" and therefore did not refuse to bargain.
The Respondent acknowledges that it was notified
that a registered letter addressed to it from a spe-
cific zip code was received by the post office and
available for pickup. However, the Respondent
states that it had no knowledge of the letter's con-
tents or the sender 's identity . Further, its decision
not to claim the letter was not so that it could
avoid the Union, but "was consistent with a long-
standing and legitimate business policy." The Re-
spondent argues that as the General Counsel has
not contested the legitimacy of the business justifi-
cation for the policy "it is undisputed that the Em-
ployer was not at fault for the non-receipt of the
letter" (emphasis in the original).
The Respondent also asserts that the Union was
required to act with "due diligence" in requesting
bargaining and failed to do so when it took no fur-
s The letter from the Respondent to the Union dated December 16
shows the Union's zip code as 95126 . The notices from the post office to
the Respondent regarding the union letter of December 18 indicated that
the letter was from zip code 95126-2120.
* 170 NLRB 389 ( 1968).
STEVENS PONTIAC-GMC 601
ther action after sending the letter dated December
18.
In its answer to the complaint, the Respondent
asserted as a defense that any unfair labor practice
allegedly committed by the Respondent is de mini-
mis.
In opposing the remedy requested by the Gener-
al Counsel the Respondent asserts that the Trans-
marine remedy is only applied when "the employer
fail[s] to notify the union of its intent to cease oper-
ations and consciously divest[s] the union of any
bargaining power." The Respondent states that it
was not a conscious or willful wrongdoer and thus
there is no basis for imposing the Transmarine
remedy.
C. Discussion
We agree with the General Counsel that the
Union made a valid demand for effects bargaining
that was constructively received by the Respond-
ent. We further agree that the Respondent refused
to bargain in violation of Section 8(a)(5) and (1) of
the Act.
Whether refusal of registered or certified mail
containing a bargaining demand constitutes a refus-
al to bargain usually depends on why the mail was
refused. When an employer has instituted a policy
of refusing registered or certified mail in order to
avoid requests for recognition and bargaining, the
Board has held that refusal of registered or certi-
fied mail containing those requests constitutes a re-
fusal to bargain.5 On the other hand, when an em-
ployer has refused registered or certified mail with-
out knowledge that it contained a demand for rec-
ognition or bargaining, even when the employer
knew the mail was from the union, the Board has
held that there was no refusal to bargain.6 Both
5 See Midway Golden Dawn, 293 NLRB 152 (1989) (valid request to ne-
gotiate found when the employer knowingly refused communications
from the union because it had reason to believe that the communications
were in regard to the expiration of the collective-bargaining agreement);
Honda of San Diego, 254 NLRB 1248, 1268 (1981) (refusal to bargain
found where employer refused to accept union 's certified letter, contain-
ing recognition and bargaining request , pursuant to recent policy intend-
ed to prevent delivery of correspondence from the union ), Wayne Trophy
Corp., 236 NLRB 299, 309-310 (1978), enfd. 595 F.2d 1213 (3d Cir. 1979)
(refusal to bargain found where employer refused to accept letter with
the union 's name and address on the envelope , found that the employer's
"agents reasonably suspected what was contained therein "); Regal Alumi-
num, 171 NLRB 1403, 1411-1412 (1968), enfd. 436 F.2d 525 (8th Cir
1971) (employer had knowledge of bargaining demand when after tele-
phone conversations with the union 's representative , it refused two certi-
fied letters knowing that they were from the union); City Electric Co, 164
NLRB 844, 848 (1967) (employer could not claim that bargaining
demand was not made "where it refused to receive communications from
the Union"). But, see Dow Chemical Ca, 171 NLRB 902 (1968), enfd. 420
F 2d 480 (5th Cir 1969) (no refusal to bargain found even though em-
ployer had given instructions that mail from the union not be accepted)
6 See Quick Shop Markets, 416 F.2d 601, 606 (7th Cir. 1969) (unopened
registered letter containing bargaining demand that was refused pursuant
to policy was insufficient to convey clear demand to bargain); Circle K
Corp., 173 NLRB 713, 722-724 (1968) (no refusal to bargain where em-
Circle K Corp.7 and Filler Products" indicate that
finding a violation would require a conclusion that
the employer knew, or at least should have known,
the contents of the refused letter.
None of the cases discussed above addressed the
precise issue to be determined in the present case.
Each of the above cases, except Midway Golden
Dawn, concerned an initial demand for recognition
and bargaining. The union therefore had the initial
responsibility of communicating its demands to the
employer. Further, the employer had no relation-
ship with the union and no duty to anticipate any
demands by the union or to deviate from its normal
practices or policies in order to receive possible de-
mands. When, as in this case, the union is the ex-
clusive bargaining representative of the employer's
unit employees and has been recognized as such,
the employer has certain obligations to the union.
These obligations include a duty to communicate
to the union its decision to cease operations and to
terminate the unit employees. Further, the employ-
er is required to afford the union an opportunity to
negotiate regarding various matters.9
Here the recognized Union sent a solicited
demand to bargain, by a reasonable method, in re-
sponse to a notification of pending action. Under
these circumstances the Employer will not be al-
lowed to use its internal practices to claim nonre-
ceipt of the demand when it has failed to notify the
Union of these practices-10 To hold otherwise
would render the Employer's duty to afford the
Union an opportunity to negotiate meaningless.
Therefore, when an employer notifies a recog-
nized union of action requiring the employer, on
demand, to engage in bargaining, the employer also
must inform the union of any practices making re-
ceipt of a demand by a reasonable method of reply
unlikely. Otherwise, the employer must bear the
burden of altering its practices in order to ensure
that any reply sent by that method is received.
That the employer should bear this burden is obvi-
ployer had strict policy of refusing registered mail and refusal of union
letter was not because of knowledge or suspicion of its contents); Filler
Products, 376 F.2d 369, 380-381 (4th Cir . 1967) (employer , on advice of
its attorney, refused letter from union Employer had received copy of
union 's petition for election and had no reason to assume letter was a re-
quest for recognition).
7 See fn . 6, supra
8 See fn . 6, supra.
9 O Neill, Ltd., 288 NLRB 1394 (1988).
10 As stated in Regal Aluminum, 436 F.2d 525 , 527 (8th Cir. 1971), re-
garding a demand for recognition.
[T)he company cannot hide behind its own self-constructed wall of
obstinance and thereby use its ignorance as a shield The National
Labor Relations Act only contemplates that the union make a
demand to be recognized . The duty created is to use reasonable
means to make the demand known to the company Under a statute
requiring cooperative attitudes to achieve industrial peace , common
sense dictates that artificial devices created by the company to avoid
knowledge of that demand cannot succeed.
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ous. The union should not be required to guess if a
reasonable method of reply will be accepted by the
employer." In cases involving an employer that
will soon be ceasing operations , time that the union
loses in communicating a reply refused by the em-
ployer will result in the loss of the union 's bargain-
ing power . On the other hand , the employer has
knowledge of its own policies and practices and
therefore the employer 's burdens of informing the
union of those are minimal.
Here , as the Respondent did not inform the
Union that registered or certified mail would be re-
fused , it had a duty to alter its practice to ensure
that a reply from the Union would be received.
The Respondent did not do so and we find that the
Union made a valid demand for bargaining that
was constructively received by the Respondent.
We thus find that the Respondent unlawfully re-
fused to bargain over the effects of its closing and
termination of unit employees.
The Respondent states that to find a violation
"would be to reward the Union for its lack of due
diligence in failing to make the simplest effort to
follow up on its bargaining demands." Citing
Golden Bay Freight Lines , 267 NLRB 1073 ( 1983),
the Respondent argues that "the Union must act
with due diligence (emphasis in the original) in re-
questing bargaining ." In Golden Bay Freight Lines,
however, the employer had notified the union that
it was considering closing one of its terminals and
invited the union to discuss this matter . The em-
ployer also cautioned that if it had not heard from
the union by a specified date the employer would
make a decision without the union 's imput. There
was no response by the union and the employer de-
cided to close . In these circumstances a lack of due
diligence in demanding bargaining was found.
In the present case, however, the Union sent a
letter demanding bargaining only 2 days after the
Respondent had sent the letter notifying the Union
of the pending action. Further , the Union did not
make its bargaining demand in "whispered tones"
as suggested by the Respondent . In fact the Union
sent its bargaining demand by the identical method
used by the Respondent in notifying the Union of
the pending action . As previously noted , the Re-
spondent ceased operation only 13 days after the
Union sent its bargaining demand . The Union's
letter was returned to it marked "unclaimed" on
January 8 , 1988. Thus, by the time the Union was
aware that the Respondent had refused to claim the
I I This is especially so in this case where the method the Union used
to communicate its demand was identical to the one the Respondent had
used to notify the Union of the pending action Further, the Respondent
invited this method of response . The Respondent 's letter included a let-
terhead giving the exact address to which the Union addressed its reply
bargaining demand , the Respondent had already
ceased operations with the resulting loss of the
Union's bargaining power.
If a union receives notification of changes affect-
ing employees ' terms and conditions of employ-
ment at a time that allows for meaningful negotia-
tion , it must request bargaining or a waiver of the
right to bargain may be found . 12 However, "a
waiver of bargaining rights is not to be lightly in-
ferred" 13 and a waiver must be clear and unmistak-
able.14 Here, we have already found that the
Union's demand for bargaining contained in the
registered letter that was refused by the Respond-
ent was a valid demand for bargaining . As stated in
City Electric Co., "[i]ts letter of demand having
been rejected, the Union was under no further obli-
gation to communicate a demand." 15
We therefore agree with the General Counsel
that, while it might have been prudent for the
Union here to have followed up on its initial
demand, it did not demonstrate a lack of due dili-
gence or waive its right to bargain by its failure to
do so.16
Finally, we reject the Respondent's argument
that a Transmarine remedy is inappropriate. The
Respondent cites cases in which a Transmarine
remedy was applied and notes that in each of these
cases an employer had failed to notify the union
I' See Hawthorn Mellody, Inc., 275 NLRB 339, 341 -342 (1985); W. G.
Best Homes Corp., 253 NLRB 912 , 919-921 (1980).
13 Handy Spot, 279 NLRB 1320, 1334 (1986), citing Armour Oil Ca,
253 NLRB 1104 (1981 ), and cases cited therein
i4 Armour Oil Ca, 253 NLRB 1104, 1120 (1981).
15 164 NLRB 844 (1967). But see Circle K Corp., 173 NLRB 713, 724
(1968) (it was deemed significant in finding no violation that the union
had not toed to communicate its demand for recognition after awareness
that the letter had been refused). In Circle K Corp., however, the demand
was for recognition and once the union was aware that the letter had
been refused , it had other means by which to communicate with the em-
ployer Here, however, the Union became aware that its demand for bar-
gaining over the effects of the Respondent's closing had been refused
only after the Respondent had ceased operations.
16 Our dissenting colleague states that the Respondent did not refuse to
bargain with the Union , correctly noting that the Respondent stated that
it was willing to bargain with the Union . However, our colleague fails to
note that the Respondent's action belied its words Our decision does not
rest on whether the Respondent had actual knowledge of whether a spe-
cific letter was from the Union . Rather, we have considered that the Re-
spondent should have been aware that certified mail was a likely method
for the Union to use to communicate its demand and that the Respondent
was aware of its own "no pick up policy ." Nevertheless, it failed either
to inform the Union of the policy, despite the minimal burden of so
doing, or to alter its policy to ensure receipt of a union demand. Thus,
while the Respondent 's statements on their face indicated a willingness to
bargain, its more telling action of refusing a valid bargaining demand ef-
fectively precluded bargaining . The Respondent 's other offers to bargain
came after it had ceased operations and the Union was divested of bar-
gaining power
Our dissenting colleague also finds that the Union showed a lack of
diligence We reiterate that the Union was diligent in making a valid bar-
gaining demand at a time when it still had a measure of bargaining
strength . Once the Union 's bargaining strength was diminished, as the
result of Respondent 's ceasing operations and terminating its bargaining
unit employees , the Union was not required to do more without having,
in some measure, that bargaining strength restored.
STEVENS PONTIAC-GMC
that it intended to cease operations and had "con-
sciously divested the union of any bargaining
power." 17 The Respondent argues that this type of
situation is the only one in which the Transmarine
remedy is applied. The Respondent attempts to dis-
tinguish this case, stating that here the Respondent
had notified the Union of the intent to cease oper-
ations and of its willingness to bargain over the ef-
fects. Therefore, according to the Respondent
there is no basis for imposing a Transmarine
remedy.
The Respondent 's argument misconstrues the
purposes of both the notice requirement and the
Transmarine remedy. The requirement that an em-
ployer notify a recognized union of intent to cease
operations is not an end within itself . Instead this
requirement is a means of ensuring that the union is
provided with a meaningful opportunity to bargain
over the effects of the employer's decision.18 The
Transmarine remedy is imposed to ensure meaning-
ful bargaining when the employer did not afford
the union an opportunity to engage in bargaining
"at a time when Respondent was still in need of
[the employees'] services, and a measure of bal-
anced bargaining power existed ." 19 Here the Re-
spondent, although fulfilling the notice require-
ment, denied the Union a meaningful opportunity
to bargain over the effects of its decision to cease
operations.
In Yorke v. NLRB ,20 a case cited by the Re-
spondent, the Seventh Circuit, contrary to the
Board, found that an emergency excused the trust-
ee in bankruptcy's obligation to notify the union
before closure of the employer's plant. The court
also found that the union had requested effects bar-
gaining after closing and the trustee had refused.
Even though the failure to notify was excused, the
court upheld the Transmarine remedy imposed by
the Board. The court noted that the Board could
have reasonably concluded that had the trustee
bargained when requested to do so, "the Union
would have had some leverage in obtaining conces-
sions ." The court also stated that "[t]he purpose of
the limited backpay requirement in such circum-
stances is not to punish , but to create an incentive
for the company to bargain in good faith."
Likewise here, to create an incentive to bargain,
a Transmarine remedy is appropriate.
17 See Bridgeport Rolling Mills Ca, 288 NLRB 275 (1988); Capitol Fire
Systems, 288 NLRB 677 (1988), ONeill, Ltd., supra, 288 NLRB 1394,
Yorke v. NLRB, 709 F.2d 1138 (7th Ca 1983), cert denied 465 U.S. 1023
(1984)
18 See Intersystems Design Corp, 278 NLRB 759 (1986), and cases it
cites
19 ONeill, Ltd., supra
20 709 F 2d 1138 (7th Cir. 1983), cert denied 465 U.S 1023 (1984).
603
CONCLUSIONS OF LAW
1. The Respondent, Stevens Pontiac-GMC, Inc.,
was at all material times an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Teamsters Automotive Workers Union Local
No. 576, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America , AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By ceasing operations and terminating unit
employees without affording the Union, as exclu-
sive collective-bargaining representative of the Re-
spondent 's unit employees , an opportunity to nego-
tiate and bargain with respect to the effects of its
acts and conduct on the unit employees, and by
failing and refusing to bargain with the Union over
the effects of closing its facility and terminating
unit employees, the Respondent has engaged 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.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
To remedy the Respondent's unlawful refusal to
bargain about the effects of its decision to close the
facility, we shall order it to bargain with the
Union, on request, concerning the effects of its de-
cision. We shall accompany the bargaining order
with a limited backpay requirement designed to
make whole the employees for losses sustained as a
result of the violation, and to recreate in some
practicable manner a situation in which the parties'
bargaining positions are not entirely devoid of eco-
nomic consequences for the Respondent. There-
fore, we shall require the Respondent to pay back-
pay to its employees in a manner similar to that re-
quired in Transmarine Corp., 170 NLRB 389 (1968).
We shall order the Respondent to pay employees
backpay at the rate of their normal wages when
last in the Respondent's employ from 5 days after
the date of this Decision and Order until the occur-
rence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement
with the Union concerning the effects on unit em-
ployees of its decision to close its facility; (2) a
bona fide impasse in bargaining ; (3) the failure of
the Union to request bargaining within 5 days of
this decision , or to commence negotiations within 5
days of the Respondent's notice of its desire to bar-
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gain with the Union ; or (4) the subsequent failure
of the Union to bargain in good faith ; but in no
event shall the sum paid to any of these employees
exceed the amount the affected employee would
have earned as wages from the date on which laid
off to the time the employee was recalled, or se-
cured equivalent employment elsewhere, or on
June 6, 1988 , the date that the Respondent offered
to bargain , whichever occurred sooner ; provided,
however, that in no event shall this sum be less
than these employees would have earned for a 2-
week period at the rate of their normal wages
when last in the Respondent 's employ . Interest on
all such sums shall be paid in the manner pre-
scribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent , Stevens Pontiac-GMC, Inc., Los
Gatos, California, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Team-
sters Automotive Workers Union Local No 576,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO, about the effects of its decision to
close its facility on the employees in the following
appropriate unit:
All full-time and regular part-time lubricators,
car washers , polishers, tire servicemen , combi-
nation tow car men and miscellaneous men
employed by the Respondent; excluding all
other employees, guards, and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request , bargain with the Union as the ex-
clusive representative of its employees in the
above-described unit about the effects of its deci-
sion to close its facility and pay limited backpay to
the unit employees in the manner set forth in the
remedy section of this decision.
(b) Mail a copy of the attached notice marked
"Appendix"21 to the Union and to all unit employ-
21 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ees. Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed
by the Respondent 's authorized representative,
shall be mailed by the Respondent immediately
upon receipt as above directed.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER CRACRAFT, dissenting.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act because it
"failed and refused , and is failing and refusing, to
bargain collectively and in good faith" with the
Union concerning the effects of its decision to
cease operations and to terminate its unit employ-
ees. However, as the stipulated facts amply demon-
strate, the Respondent did not refuse to bargain
with the Union. Rather, at all times it stood ready
to engage in the bargaining mandated by the Act.
And, contrary to the complaint's further allega-
tions, it is quite clear that the Respondent did not
refuse to bargain "in good faith" with the Union
over the effects of its closing. Accordingly, I
would dismiss the complaint in its entirety.
A detailed recitation of the facts demonstrates
the propriety of dismissing the complaint. They
reveal the Respondent and the Union had a collec-
tive-bargaining relationship. On December 16,
1987,1 the Respondent notified the Union of its de-
cision to cease all active operations with the result-
ing termination of all the employees represented by
the Union. The Respondent stated in its letter to
the Union that:
[t]he date of termination of employees is not
yet certain. However, we currently anticipate
that the final date of employment for all em-
ployees covered by [the Union] will be De-
cember 30, 1987.2
In the letter, the Respondent further offered to bar-
gain with the Union upon request about the effects
of its decision to cease operations and it pledged
that "[w]e will make every effort to be available at
your convenience." The letter was sent to the
Union by certified mail and clearly was received
by it. The letter did not specify the manner in
which the Union should respond. The letter itself
' All subsequent dates in December are in 1987 . All other dates are in
1988
2 The parties' stipulation states that in the letter the Respondent noti-
fied the Union that it "would be ceasing its operations and terminating all
of its [U]nit employees by December 31, 1987 . . [emphasis supplied]."
The letter itself, however, clearly states that "[t]he date of termination of
employees is not yet certain ." I draw my understanding of the facts of
this case from the letter itself and not from the parties' later charactenza-
tion of it
STEVENS PONTIAC-GMC 605
listed the Respondent's post office box address as
well as its telephone number.
The Union then wrote to the Respondent by
letter of December 18 requesting the Respondent
to engage in effects bargaining . The Union mailed
its letter by certified mail and sent it to the "P.O.
Box" address on the Respondent 's letter . The post
office placed three notices in the Respondent's box
stating that a certified letter from a specified zip
code was available for pickup. Importantly, the no-
tices did not indicate who the sender of the letter
was. While the Respondent received these notices,
it elected not to pick up the letter.3 When the
Union's letter was not picked up by the Respond-
ent, it was returned to the Union "on or about"
January 6, and was received by the Union "on or
about" January 8. On receiving it, the Union did
nothing until it filed its unfair labor practice charge
in April. Indeed, the parties stipulated that
"[f]ollowing its December 18, 1987 letter, the
Union made no further attempts, other than filing
the instant charge, to notify Respondent it wished
to engage" in effects bargaining . The Respondent
did not become aware of the Union's contention
that it had sent a December bargaining demand
until May. Thereafter, in June, and again in July,
the Respondent informed the Union that it was still
willing to engage in effects bargaining, but the
Union sought no such bargaining.
On the above facts, I find no refusal to bargain
on the Respondent's part and surely no refusal to
bargain in good faith . In its December 16 letter the
Respondent announced at the outset its intention to
fulfill its bargaining obligation upon request by the
Union. Indeed , indicative of its good faith was its
reiteration of that intention on two occasions when
it learned of the Union 's earlier bargaining demand,
which it had never received. Its failure to receive
the Union 's earlier demand cannot be attributed to
a lack of good faith on its part. Rather, that failure
was due to its "no pick-up policy," which the Gen-
eral Counsel has not established was used as a sub-
terfuge to defeat its bargaining obligation . The stip-
ulated facts simply do not show that the Respond-
ent was aware who had sent the letter or that it
knew or should have known that the Union was
trying to get in touch with it. The mere fact that
the Respondent was on notice of the zip code of
the letter is too slim a reed to establish that the Re-
spondent knew that this was a letter from the
Union and that the Respondent was purposefully
trying to avoid its receipt. Rather, the Respondent
was simply acting in accord with its legitimate no-
pickup policy and the Respondent's actions here do
not establish a refusal to bargain.4
Another element of this case that has to be con-
sidered is the Union's action, or rather inaction,
after sending its letter and getting no immediate
reply from the Respondent. The facts show that
the Respondent had been quite forthcoming in its
December 16 letter about its bargaining obligation
and its intention to fulfill it. In the letter, the Re-
spondent had also set an anticipated final date of
employment for the unit employees of December
30. Thus, time was of some essence . Yet, as the an-
ticipated date of termination approached and the
Union heard nothing from the Respondent, it did
nothing either. The stipulated facts show the Union
did not follow up with another letter or a phone
call although it clearly had the Respondent's tele-
phone number. Then, even when its letter was re-
turned in January , it made no attempt to reach the
Respondent. It is true that the Respondent had
ceased operations "on or about" December 31, but,
as detailed earlier, the Respondent 's December 16
letter did not establish an absolute date for closing
and the stipulated facts do not show precisely that
the Union knew, when its letter was returned, that
the Respondent had closed. Yet, the Union did not
pursue the matter further until it filed its charge in
April. Even the General Counsel acknowledges in
his brief that "it may have been prudent for the
Union to follow-up on its December 16 letter as
December 31 approached . . . ." Indeed, I con-
clude that it would have been quite prudent to do
so, and I find, in sum , that the Union's lack of dili-
gence must be factored into the facts of this most
unique case . When I do so, and when I consider
that the Respondent always stood ready to bargain
in this case , I must conclude that the complaint's
allegations have not been established . I therefore
dissent from my colleagues' conclusion otherwise.
9 Respondent 's policy was not to accept certified or registered letters
mailed to its post office box or place of business unless the letters were
sent by its manufacturer or a Government agency It followed this policy
because of substantial litigation and threats of litigation in the auto busi-
ness and because it did not want claims being made that legal papers or
legal demand had been served on it by certified or registered mail It did
have a designated representative for receipt of process in accordance
with the laws of California . The Union did not know of this policy.
4 Quoting from the court 's opinion in NLRB Y. Regal Aluminum, 436
F.2d 525 (7th Cir 1971 ), my colleagues indicate, inter alia, that a "com-
pany cannot hide behind its own self constructed wall of obstinance and
thereby use its ignorance as a shield ." Fn. 10 majority opinion . There is
simply no evidence that the Respondent acted in such a manner in this
case. Regal Aluminum involved an employer who purposefully attempted
to evade a bargaining demand and that case is simply inapposite to the
situation now before us
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collec-
tively about the effects of the closure of Stevens
Pontiac-GMC , Inc., with Teamsters Automotive
Workers Union Local No. 576 a/w International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, AFL-CIO as the ex-
clusive representative of all the employees in the
following appropriate unit:
All full time and regular part-time lubricators,
car washers , polishers , tire servicemen , combi-
nation tow car men and miscellaneous men
employed by the Employer ; excluding all
other employees , guards, and supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with
the above-named Union with respect to the effects
of closing Stevens Pontiac-GMC , Inc., in Los
Gatos, California , on the employees who were em-
ployed there in the above-described unit, and
reduce to writing any agreement reached as a
result of such bargaining.
WE WILL pay the employees in the appropriate
bargaining unit who were employed at Stevens
Pontiac-GMC, Inc . limited backpay , plus interest,
as required by the National Labor Relations Board.
STEVENS PONTIAC -GMC, INC.