Stuart Wilson, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1969

174 N.L.R.B. 284 (N.L.R.B. 1969)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stuart Wilson, Inc. and Automotive Salesmen's
Association ( A.S.A.), affiliated with Seafarers'
International Union of North America , AFL-CIO.
Case 7-CA-6629
January 31, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 28, 1968, Trial Examiner Lloyd
Buchanan issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Natiorral Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner with the following modifications.
On October 31, 1966, in Case 7-RC-7534, the
Regional Director for Region 7 issued a Decision
and Direction of Elections in a stipulated unit of
Respondent' s employees . Respondent ' s request for
review of that decision was denied by the Board on
November 23, 1966. The election was won by the
Union, and on February 15, 1967, the Regional
Director overruled Respondent ' s objections and
certified the Union . Thereafter , on April 27, 1967,
the Board denied Respondent ' s request for review.
On February 9, 1968, in Case 7-AC- 59, the
Regional Director granted the Union's petition for
an amendment to the certification to reflect the
Union ' s affiliation with SIU, and the Board on
April 26, 1968, denied Respondent ' s request for
review.
Respondent , in its exceptions , contends that the
certification and amendment are invalid . These are
the same allegations that were made by Respondent
and fully litigated in the related representation and
amendment proceedings . Respondent has not offered
any new evidence not previously available to it; nor
has it asserted the existence of special circumstances
which would warrant reconsideration of the Board's
prior determinations.
In these circumstances, we find no merit in
Respondent's exceptions. Inasmuch as Respondent
has already litigated these issues, it has not raised
any issue which is properly triable in the instant
unfair labor practice proceeding.'
We find, in agreement with the Trial Examiner,
that Respondent refused to bargain with the
certified union upon request, in October and
November 1967, within the certification year, and
thereafter. We further find these refusals to be in
violation of Section 8(a)(5) and (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom, and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Automotive Salesmen's Association, affiliated
with Seafarers' International Union of North
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Stuart Wilson, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
3. All new and used car and truck salesmen at
Respondent's places of business; excluding office
clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By virtue of a Board certification dated
February 15, 1967, and an amendment of
certification dated February 9, 1968, the
above-named labor organization has been, and now
is, the certified and exclusive representative of all of
the employees in the appropriate unit described
above for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing, on and after October 1967, to
bargain in good faith with the Union concerning
'Pittsburgh Plate Glass v. N L.R.B, 313 U S. 146, Debne Press, Inc,
165 NLRB 857
174 NLRB No. 49
STUART WILSON, INC.
wages, rates of pay, hours, and other terms and
conditions of employment, Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Stuart Wilson, Inc.,
Dearborn, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
BUCHANAN, Trial Examiner The complaint herein
(issued April 1, 1968; charge filed March 8, 1968) alleges
that the Company has violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, 73 Stat
519, by refusing to meet and bargain with the Union as
collective-bargaining representative although the Union
had been certified as such representative. The answer, as
amplified at the trial, denies that the Company refused to
meet before, as claimed, the Union lost its majority
status.
The case was tried before me in Detroit, Michigan, on
May 20, 1968. Counsel were heard in oral argument at
the close of the trial. Pursuant to leave granted to all
parties, briefs have been filed by the General Counsel and
the Company. I regret that seven intervening cases have
delayed issuance of this Decision
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Michigan corporation, the nature and extent of its
business, and its engagement in commerce within the
meaning of the Act are admitted. I find and conclude
accordingly. I also find and conclude that, as admitted,
the Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED VIOLATION OF
SECTION 8(A)(5) AND (1)
Having indicated to counsel that, at the trial and in
their briefs, they confine themselves to the specific points
at issue, but that they cover these points thoroughly, I
shall myself follow that suggestion; with a minimum
concerning recitals of the necessary elements on which we
obtained agreement.
No issue has been raised with respect to the unit as
certified by the Board on February 15, 1967, in Case
7-RC-7534, and as further described in an Amendment of
285
Certification on February 9, 1968, in Case 7-AC-59. I find
and conclude that the following is an appropriate unit
within the meaning of Section 9(b) of the Act:
All new and used car and truck salesmen at the
Company's places of business, excluding office clerical
employees, guards and supervisors as defined in the
Act.
About or immediately after February 15, 1967, Van
Zant, a company salesman at that time and until June,
when he resigned, and president of the Union since April
3 of that year, asked John Blackwell,' president of the
Company, to sit down and negotiate a contract. There
were several such requests until the end of Van Zant's
employment in June, Blackwell replying, as he himself
testified, in substance that he did not want to be the first
to negotiate a contract but wanted to wait to see what the
other certified automobile dealers would do. A refusal to
bargain on that account is not justified even if one
recognizes the possible economic disadvantage under such
circumstances. Blackwell could say in this connection only
that at that early period Van Zant made no request for a
specific date to negotiate; but the general refusal and the
reason given therefor was an anticipatory refusal and
could have indicated the futility of any suggestion of a
specific date.
Thereafter, by certified letters dated July 21 and
August 30, the Union requested that the Company
bargain with it. There was apparently no reply to either
letter. These events prior to the statutory 10(b) period are
noted because the intent or attitude thereby indicated may
be considered, not as violative in itself, but as explaining
the Company's acts or failure to act within the statutory
period. The earlier demands are not to be deemed
"meaningless" ' as in a case where the union lacks a
majority at the time they are made. Although barred
procedurally as the basis for a complaint, those demands
indicate the Union's existing and continuing desire for
bargaining as the Company's failure to reply indicates the
latter's continuing refusal. But in any event and without
reliance on any prestatutory period tests or events, we
have and can consider events which occurred during the
10(b) period, which began on September 8.
Thus in October and November several' requests were
made to meet and bargain, company counsel promising to
check with their client and call back; but the calls were
not returned. A request to bargain and an unexplained
failure to comply establish an unlawful refusal to bargain.
I find and conclude that such refusal occurred in October.
On September 27 the Union filed against the Company a
refusal-to-bargain charge, which it withdrew on November
30. None of this affected the duty to bargain. Neither was
any exculpatory issue raised by the AC petition, which
was filed on November 20 and could not in any event
affect any finding of earlier refusal to bargain.
'He will be referred to as Blackwell . His brother, James, is general
manager and , less frequently mentioned , will be referred to as Jim
Blackwell.
'N L.R.B v. Arkansas Grain Corporation , 390 F.2d 824 (C.A. 8)
'I have considered the testimony pro and con with respect to the number
of telephone calls and requests to bargain, whether they concerned this
Company alone , and the absence of response. The credible testimony
indicates that there were such requests, that the Union was told that they
were to be handled by counsel for the Company , and that there was no
reply to at least some of them and for a significant time . Nor have I
o""erlooked Jim Blackwell ' s suggestion, although he recalled little of the
conversation, that he was told that the Union's proposed contract would be
left with the Company in November as a mere formality to be disregarded
Not only is his testimony that the Union 's requests to bargain were never
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, omitting harrowing details concerning a call
from Van Zant to Blackwell late in November or early in
December, others on December 19 and 21 and about the
first of the year, one of the lawyers for the Company did
call Van Zant and speak with him about setting up
negotiations Thereafter it was agreed to meet to bargain
on March 5. But on February 26 counsel for the
Company requested a postponement, and the meeting was
rescheduled for March 7.
Three days after this arrangement was made, company
counsel filed with 'the Board a charge against the Union
and a decertification petition. Much was made at the trial,
and with some reason, of Blackwell's alleged surprise,
which I do not credit, when he received a copy on March
2 of the petition filed by his attorney on February 29 (he
allegedly had no knowledge that his attorneys had taken
such action), and of the employee meeting which he called
on March 4 when, denying the Union's majority and on
advice of counsel, he announced cancellation of the
meeting scheduled for March 7.
But more significant is the fact that there is no evidence
of any event between February, 26 when counsel,
indicating no doubt of continuing majority, arranged a
postponement of negotiations, and February 29, when he
filed the decertification petition on which Blackwell relied
in canceling the meeting. Aside from prior unlawful
refusal to bargain, this latest series of events, unexplained
by the Company or its attorneys, itself indicates bad faith.
Quite apart from this, but not to overlook a claim
made, if as counsel for the Company suggested, the Union
was too busy with other automobile dealers to press
harder than it did here for negotiations, that did not vest
in this Employer any right to ignore its bargaining
obligation when requests were made; and ignore it, it did
Hardly probative is counsel's early statement that
employees told the Company that they no longer wanted
the Union to represent them. So far from any proof of
this and of action which would reliably indicate loss of the
Union's majority, it appears that Blackwell was informed
only that the employees had said that they would get out
of the Union if it forced a strike on them, that none got
out, and that none told the Company that he had left the
Union The Union had not been repudiated and the
Company was not even informed of any such repudiation.
In this case we do not even reach the question whether
information, which the Company might have claimed was
sufficient, was reliable The rebuttable presumption of
continuance of majdrity has not been rebutted.
It may also be noted that, stating first that there were
14 to 16 employees in the unit at the time of the February
1967 certification, Blackwell then adopted as correct his
affidavit declaration that there were approximately 14 at
that time. This would appear to be more reliable than the
reference to 17 as the approximate number of eligible
voters made in the Regional Director's report. It appears
further that eight of the employees who voted in the
election were still employed in March 1968, and there is
no evidence that the earlier proportion in favor of the
Union was now modified. But in any event that issue is
irrelevant in the light of the refusal to bargain within 1
year of the certification.
specific contrary to the Union' s letters, but it is belied by his brother's
explanation for the refusal to bargain
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company, Stuart Wilson, Inc.,
Dearborn, Michigan, its officers, agents, successors, and
assigns, shall.
1 Cease and desist from:
(a) Refusing to bargain collectively with Automotive
Salesmen's Association (A.S.A.), affiliated with Seafarers'
International Union of North America, AFL-CIO, as the
exclusive representative of all its employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, or other conditions of employment
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of the employees in the
appropriate unit, and embody in a signed agreement any
understanding reached.
(b) Post at its places of business in Dearborn,
Michigan, copies of the attached notice marked
"Appendix "° Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly
signed by its representative, shall be posted by the
Company, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'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 the Regional Director for
Region 7, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
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 bargain, upon request , with Automotive
Salesmen's Association (A.S.A.), affiliated with
Seafarers ' International Union of North America,
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described herein with
respect to rates of pay, hours of employment , or other
conditions of employment , and embody in a signed
agreement any understanding reached. The bargaining
unit is:
STUART WILSON, INC. 287
All new and used car and truck salesmen at our
places of business, excluding office clerical employees,
guards and supervisors as defined in the Act.
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
STUART WILSON, INC. or compliance with its provisions, they may communicate
(Employer) directly with the Board's Regional Office, 500 Book
Dated By Building, 1249 Washington Boulevard, Detroit, Michigan
(Representative) (Title) 48226, Telephone 226-3200