Valley Imported Cars

National Labor Relations Board - Board Decisions

May 24, 1973

203 N.L.R.B. 873 (N.L.R.B. 1973)

VALLEY IMPORTED CARS 873
Stephen Compagno , d/b/a Valley Imported Can and
Automobile Salesmen 's Union Local No. 1095, Re-
tail Clerks International Association , AFL-CIO.
Case 20-CA-7546
May 24, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 11, 1972, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent Employer filed
exceptions and a supporting brief, and the General
Counsel filed its brief to the Administrative Law
Judge as an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm, the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order .2
National Labor Relations Board for Region 20 issued a
complaint and notice of hearing alleging violations of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act, as
amended, hereinafter called the Act. On November 17,
1972, the parties timely filed briefs with me.
Upon consideration of the briefs of the parties, and upon
the entire record in this case and my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein Respondent has been a sole
proprietorship engaged in the retail sale of new and used
automobiles in Vallejo and Napa, California.
During the calendar year immediately preceding the is-
suance of the complaint herein, Respondent, in the course
and conduct of its business operations , received gross reve-
nues in excess of $500 ,000 from the sale of new and used
automobiles.
During the same period of time , Respondent, in the
course and conduct of its business operations , purchased
and received goods and supplies valued in excess of $50,000
from suppliers located in the State of California, which
goods and supplies were received by said suppliers directly
from points located outside the State of California.
Upon these facts, I find that Respondent has been at all
times material herein an employer engaged in 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Stephen Compagno, d/b/a
Valley Imported Cars, his agents , successors , and as-
signs, shall take the action set forth in the Administra-
tive Law Judge's recommended Order.
1 We hereby correct an inadvertent error in the Adminstrative Law Judge's
Decision which in no way affects his Decision nor our modified adoption
thereof . Fulco, secretary-treasurer of the Union , did not contact Bradley,
Respondent's attorney, in the early part of March , as found by the Adminis-
trative Law Judge.
2 The Respondent has requested oral argument . This request is hereby
denied as the record , the exceptions , and briefs adequately present the issues
and the positions of the parties.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Administrative Law Judge: This matter
was heard at San Francisco , California, on October 13,
1972, pursuant to a charge filed on June 9, 1972, by Auto-
mobile Salesmen 's Union Local No. 1095, Retail Clerks
International Association, AFL-CIO, herein called the
Union. On August 17, 1972, the Regional Director of the
II. THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen's Union Local No . 1095, Retail
Clerks International Association, AFL-CIO , is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that Respondent failed to
fulfill its obligation under the Act to bargain in good faith
with the Union by refusing to meet with the Union for a
period in excess of 5 months, and by failing and refusing to
designate a bargaining agent with requisite authority to con-
duct negotiations on its behalf.
The Respondent denies that it violated the Act and con-
tends that its failure to meet between September 14, 1971,
and May 23, 1972, was occasioned solely by the physical
incapacity of Stephen Compagno; and that its refusal after
May 30 to meet was in deference to the decertification
efforts undertaken by unit employees which revealed that
they no longer wished the Union to represent them. More-
over, contends Respondent , the General Counsel failed to
show that Respondent acted in bad faith in its conduct
vis-a-vis the Union and that , absent such a showing, no
violation of Section 8(a)(5) may be found.
Moreover, building upon the latter thesis, Respondent
asserts that the Union was at all pertinent times between
September 14 and May 12 aware of Compagno's illness and
203 NLRB No. 135
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acquiesced in Respondent 's failure to designate an agent to
bargain on Respondent's behalf and is thus estopped from
contesting the legality of Respondent 's bargaining conduct.
tion of the Union's proposal would be too costly. Fulco
suggested that the Respondent submit a counterproposal,
which Respondent agreed to do.
B. Pertinent Facts
1. Background facts
a. The Company's operations
Stephen Compagno is the sole proprietor of an automo-
bile sales franchise. He maintains places of business in Val-
lejo and Napa, California. Compagno's principal office is in
Vallejo, which is the only outlet involved herein. At the
Vallejo operation Compagno is assisted by an office manag-
er, a sales manager , and a parts manager. At the Vallejo
establishment at pertinent times there have been employed
two salesmen who sell new and used automobiles.
b. The Union's certification
On May 7, 1971, a majority of employees in the following
described unit selected the Union as their exclusive repre-
sentative for the purpose of collective bargaining:
All automobile salesmen of Respondent employed at
its Vallejo, California operation, excluding all other
employees, office clerical employees, guards and super-
visors as defined in the Act.
Thereafter, on May 17, 1971, the Regional Director certi-
fied the Union as the exclusive representative of the employ-
ees in the above-described collective-bargaining unit.
c. The initial bargaining phase
Bargaining between the parties commenced on June 9,
1971. There followed a series of six meetings, the last of
which was held on September 10.2 At each of these meet-
ings , Vincent Fulco, secretary-treasurer of the Union, ap-
peared on behalf of the Union, while Stephen Compagno
and John Bradley, Respondent's attorney, appeared on be-
half of Respondent. Compagno had vested Bradley with
authority to represent him as his spokesman but Compagno
retained control over the terms of any agreement achieved
with the Union . At each of these meetings Bradley acted as
the principal spokesman for Respondent , although Com-
pagno joined in the bargaining table discussions.
At the initial meeting on June 9, the Union presented
Respondent with a copy of a collective-bargaining agree-
ment between the Union and the Hayward Automobile
Dealers Association . This agreement served as the basis for
substantive discussions which transpired at the August 9
meeting and the series of six meetings thereafter.
As of the meeting of September 10, the parties had been
unable to agree to terms of a collective -bargaining agree-
ment. The Respondent took the position that implementa-
i On May 7, 1971, the unit was comprised of three employees . There were
two employees in the unit a year later when certain events pertinent herein
transpired.
2 Other meetings after June 9 were held on June 21 , July I, 9, and 22, and
August 24.
d. Compagno becomes ill
On September 14, 1971, Stephen Compagno suffered a
heart attack. He was confined in the intensive care ward of
the hospital for 6 days and was hospitalized for approxi-
mately 3 weeks. He was released from the hospital on or
about October 5. Thereafter, pursuant to orders of his physi-
cian , Compagno was confined to his home until December
1. Between December 1 and March 1972, Compagno's work
activities were limited to an occasional visit to his office and
to opening mail while he was there. In March 1972, Com-
pagno returned to a daily work schedule but he limited his
office hours to from 90 minutes to 3 or 4 hours per day. He
signed documents received in the daily mail requiring his
signature . His office manager had authority to sign condi-
tional sales contracts. At the time of the hearing, Compagno
was spending a maximum fo 4 hours per day at the office.
Compagno's physician directed him to avoid involvement
in matters which would jeopardize his health and Compag-
no was on a diet and medication regime.3
e. The September 14 counterproposal
By covering letter dated September 14, Respondent sub-
mitted a counterproposal containing 20 separate sections
correlated by subject matter to the Union's proposal of
September 10. In substance, the Respondent's counterpro-
posal accepted certain provisions of the Union's proposal:
rejected others, and suggested modifications in still other
terms of the Union's proposal. In the covering letter dis-
patching the counterproposal, Bradley wrote:
I feel I have neglected Steve by making you such an
attractive counteroffer. My only consolation is by
doing so, I have saved my client considerable attorney
fees in time spent for unnecessary negotiations.
Bradley further asserted he was "looking forward" to the
October 19, 1971, meeting. The Respondent's counterpro-
posal and the covering letter of September 14 were received
by Fulco in the due course of the mails. During the month
of September, Fulco was advised by Bradley that Compag-
no had suffered a heart attack.
f. October meetings canceled
The meeting which had been scheduled for October 19
was canceled by Bradley because of pressing business de-
mands . Fulco and Bradley agreed to meet on October 26
but that meeting was canceled by Fulco for similar reasons.
Thereafter, a meeting was arranged for November 16.4
i The foregoing is based on the credited testimony of Stephen Compagno
and inferences drawn from the contents of documents in evidence
I do not credit the testimony of Vincent Fulco to the effect that a meeting
had been scheduled for November 5 and was cancelled . Fulco's testimony
in this regard was dependent entirely upon his recollection . Fulco was unable
to come forward with any corroborating evidence that a meeting had, in fact,
been arranged for November 5 and the testimony of John Bradley is to the
effect that none had been scheduled
VALLEY IMPORTED CARS
g. The meeting of November 16
Fulco and Bradley met on November 16. Compagno was
not present. During the course of the meeting, Respondent's
counterproposal was discussed. Fulco enumerated and
Bradley recorded in writing the Union's objections to the
Company's counterproposal. In substance, Fulco rejected
the counterproposal.
During the meeting, Fulco asserted that the Company
was not acting in good faith and that he, Fulco, was "being
pushed around." Bradley denied that Fulco was being
pushed around and alluded to Compagno's illness . Bradley
noted that Compagno's physician had directed that Com-
pagno not engage in negotiations for approximately 3
months and that because of this, he, Bradley, had mailed the
Company's counterproposal to Fulco.5
h. Compagno instructs Bradley
On November 23, Bradley met with Compagno and en-
deavored to explain the objections of the Union to the coun-
teroffer which Respondent had submitted. At the outset of
the meeting , Compagno informed Bradley that his doctor
had advised him not to become involved in labor negotia-
tions because the anxieties implicit therein might adversely
affect his health. Compagno informed Bradley further that
he had a doctor's appointment on Monday, November 29,
and that he would consult further with his physician con-
ceding his capacity to further discuss and analyze bargain-
ing matters.
As a consequence of the meeting, Bradley dispatched a
letter to Fulco, dated November 23. In substance, Bradley
summarized for Fulco the events of his meeting with Com-
pagno and assured Fulco that he would immediately advise
Fulco of Compagno's report concerning his November 29
meeting with his physician. Additionally, the letter con-
tained the following:
It is my understanding Steve has been advised not to
be involved in any type of anxiety relating to his busi-
ness as his doctor is afraid business anxieties could
bring on another attack.
Knowing you will understand not only Mr.
Compagno's position, but mine in this regard, I remain
Following his November 29 appointment with his physi-
cian , Compagno consulted with Bradley and reported the
results of his meeting with his doctor. As a consequence of
this, by letter dated December 1, Bradley wrote to Fulco as
follows:
His Doctor, Lino A. Dial, M. D., of 990 Broadway,
5 Vincent Fulco further testified , in substance , that on two prior occasions
he had informed Bradley that he was being "pushed around ." Fulco placed
the initial reference as having occurred at either the meeting of August 24
or September 10. In the opinion of Fulco, the parties had made no progress
after having discussed the Union 's initial proposal in its entirety and this
caused Fulco tomake his utterance . Fulco complained in a similar vein
during the course of a telephone conversation with Bradley which , I find,
transpired on the occasion of the cancellation of the October 19 meeting by
Bradley . Although by inference Bradley disputes the accuracy of Fulco's
testimony relating to the two incidents prior to the November 16 meeting,
I credit Fulco.
875
Vallejo, California, 94590, telephone (707) 648-3233,
advised Mr. Compagno that under no circumstances is
he to be involved in any type of activity which would
disturb or irratate [sic] his heart condition for a mini-
mum period of three months. Dr. Dial is willing to
verify this with you either by telephone or affidavit
should there by any question in your mind as to the
truthfulness of this statement.
Steve has another appointment with his doctor on
December 28, and is willing to continue negotiations at
any time that his doctor will consent in this regard.
I know from our conversation of Monday it was your
feeling Mr. Compagno's attitude was an excuse and
you felt you were being pushed. I can assure you nei-
ther is true, and that unfortunately, we have run into
a physical condition we had not anticipated at any time
prior to Steve's attack.
I have no reason to doubt the opinion of Dr. Dial
and I am certain Steve is sincere and honest in his
statement that labor negotiations can affect his health
and possibly his life.
While this is the first matter in which I have been
involved where a client has had a heart attack during
the negotiations, I am certain if the shoe were on the
other foot, both Mr. Compagno and myself would be
considerate and extend negotiations until the party in-
volved had secured a release from his doctor to contin-
ue with such activity.
I am not flattering you by stating that in my opinion
and being from the "old school" you will give honest
and sincere consideration to Steve's physical condition
and his inability to continue negotiations at this time.
While we both have a job to do, I am sure we also
believe a man's life is more important than securing an
immediate goal which also can be secured within a
reasonable time.
Your thoughtfulness in this regard will be greatly
appreciated.
In the meantime, on November 29, Fulco spoke with Brad-
ley by telephone. During the conversation Fulco asserted
that he was "being pushed around" and that there was "a
game being played."
Thereafter, Fulco waited until January 6 before he under-
took any further communication with Respondent.
i. The January 6 communications
On January 6, Fulco contacted Bradley by telephone and
asserted that he had not heard from him. Fulco stated that
he was interested in knowing what was "going on." Bradley
promised that he would contact Compagno and report back
to Fulco. He did so by letter dated January 6. In his letter,
Bradley stated that he had contacted Compagno and had
made inquiry concerning Compagno's December 28 visit
with his physician. He further stated that Compagno had
been advised by his physician that there had been "no
change" in Compagno's condition and that, as a conse-
quence, Compagno had been instructed by his doctor to
"spend as little time as possible at his place of business." In
the letter, Bradley asserted that Compagno had another
appointment with his physician on January 11 and would
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be contacting him, Bradley , to advise him further with re-
spect to his physical condition . Bradley assured Fulco that
he would transmit this information to Fulco following
Compagno 's visit with his physician."
2. The alleged unlawful conduct
a. The January 14 letter
On January 14, Bradley dispatched a letter to Fulco in
which he stated that in the course of Compagno 's January
I I visit with his doctor, the doctor had informed Compagno
that he "would not be able to negotiate for a Union Con-
tract for a minimum period of two months ." In this regard,
Bradley asserted that the doctor had again stressed the ne-
cessity for Compagno to "slow down in any type of business
transaction."
b. The February 9 conversation
Fulco had no further contact with Respondent until Feb-
ruary 9, on which date Fulco placed a telephone call to
Bradley . In the course of the conversation he inquired into
the status of matters . Bradley stated that Compagno had a
pending appointment with his physician and that he, Brad-
ley, would notify Fulco. Fulco asserted that he thought
there was "a game being played" and that the Company
should have "someone with authority to sit down to negoti-
ate." Nothing more definitive evolved from this conversa-
tion.
c. The February 11 communication
On February 11, Bradley dispatched a letter to Fulco. In
pertinent part the letter read as follows:
Steve assured me the Doctor still is insistent he does
not become involved in labor negotiations at the pre-
sent time . Furthermore, the Doctor has recommended
Steve take a vacation for two weeks and he is going to
abide by his Doctor's orders.
I want you to know I advised Steve it was your
opinion you were being pushed around , was tired of the
same, and desired to take economic action if negotia-
tions could not continue.
I am satisfied Steve is not stalling and is endeavoring
to conform to his Doctor 's instructions in order to re-
gain his health and save his life.
I must be frank in stating I would probably conform
to my Doctor's directions should I be in Steve 's physi-
cal and mental condition as nothing is more important
than the desire to live when one has been afflicted with
61 base the foregoing primarily on documentary evidence of record, as
supported in some aspects by the testimony of Vincent Fulco. In light of the
contents of Bradley 's January 6 letter, I am unable to credit Fulco's testimo-
ny, which was reliant solely upon his personal recollection , that the conversa-
tion in question transpired on January 5 or 6 and that during that
conversation Bradley informed him that Compagno was visiting his physi-
cian on that very day. I am convinced that Fulco 's recollection is inaccurate
in this respect and that the letter dispatched by Bradley to Fulco more
accurately reflects the course of events which transpired in late December
and early January.
serious illness . Having almost died on more than one
occasion with bleeding ulcers, I certainly can under-
stand how he feels.
I am sincerely requesting you continue any further
meetings to negotiate a Contract until Steve has been
advised by his Doctor he is physically and mentally
capable of handling this problem
d. The March conversations
Fulco contacted Bradley in the early part of March. He
had no further conversations with Bradley until March 30
when he initiated a telephone call to Bradley. He inquired
into the status of events and observed that he had received
no notification from Bradley indicating when the Company
would meet with him. Bradley informed Fulco that Com-
pagno had another appointment with his physician and that
he would notify him of the results. Fulco responded that the
Union had "gone long enough " and asked why "someone
with authority to sit down to negotiate the contract" was not
designated. Bradley responded that he would check with
Compagno.'
e. The April 2 letter
On April 2 Bradley wrote to Fulco in pertinent part as
follows:
I was able to contact Mr. Compagno after your tele-
phone call and he advises me he has a doctor's appoint-
ment on Tuesday, April 4, and will confer with the
doctor on his physical ability to continue negotiations
regarding his salesmen . Mr. Compagno advises that he
will contact me after his appointment with the doctor.
Thereafter, on April 5, Bradley again communicated with
Fulco by letter. In pertinent part Bradley made the follow-
ing representation with respect to Compagno 's visit with his
doctor on April 4:
Steve advises me as soon as the examination and
conference was concluded, before advising Steve he
had some complications, the Doctor told him not to get
involved in Union negotiations at this time as his health
would not permit the same.
This is all I can tell you at this time, and as soon as
Steve is well enough to proceed, I will advise you ac-
cordingly.
f. The May 12 and 16 conversations
After receiving Bradley's April 5 letter, Fulco waited until
May 12 when he initiated a telephone call to Bradley. He
informed Bradley that he was still waiting to hear from him
and ventured the opinion that "games" were "being
played." Fulco endeavored to set a time for further meetings
and again requested that Respondent appoint someone with
authority to conduct negotiations. On May 16, Bradley con-
tacted Fulco by telephone and a meeting was scheduled for
May 23.
In the meantime, Bradley had contacted Compagno and
i I credit the testimony of Vincent Fulco that he made the inquiries above
found I reject the testimony of John Bradley that not until May 12 did Fulco
request that a bargaining representative be designated
VALLEY IMPORTED CARS
had informed Compagno of Fulco's demand for a negotiat-
ing meeting. Bradley also conveyed to Compagno Fulco's
demand that Compagno vest bargaining authority in Brad-
ley. Bradley and Compagno discussed a power of attorney.
As a consequence of their discussions, however, Compagno
instructed Bradley to set up a meeting which he, Compagno,
would attend.'
g. The May 23 meeting
On May 23, Fulco met with Bradley and Compagno.
During the course of the meeting, using the Union's propos-
al and the Company's counterproposal as the basis for their
discussion , the participants in the meeting discussed sub-
stantive , contractual terms , including vacations , commis-
sions, house deals , a pension plan, and a health and welfare
plan. The Company contended that its health and welfare
proposal was superior in its coverage and benefits to that
offered by the Union. It was agreed that at the next meeting
the Company would present a pension proposal. The meet-
ing terminated with an agreement to meet again on May 30.
h. The meeting of May 30
Compagno and Bradley met as scheduled with Fulco. At
the meeting the Company presented Fulco with a letter
dated May 26, which was signed by Justin Greene and Jim
Day, employees of the Company . The letter was addressed
to Compagno who instructed Bradley to present it to Fulco
at the meeting . The text of the letter was as follows:
We wish to advise you a de-certification has been
filed requesting National Labor Relations Board to
hold an election to determine that Auto Sales Union
local 1095 is no longer certified as our bargaining rep-
resentative.
Please be advised that Auto Sales Union 1095 is no
longer our representative for the purpose of negotiating
a contract on our behalf, as such union does not repre-
sent us.
In presenting the letter to Fulco at the outset of the meet-
ing, Bradley stated that the parties could not negotiate in
light of the letter . Compagno stated that he could not act
against his employees ' wishes . After Fulco had read the
letter, Bradley asked him "how he had lost " the employees.
Fulco assumed the blame and cited the delays in the negoti-
ations . He threatened to take economic action against the
Company and left the meeting.9
8 I credit the testimony of Bradley and Compagno to the effect that they
discussed a power of attorney with respect to the designation of an agent to
conduct bargaining . Compagno was vague as to the date or time of this
discussion . I do not equate a finding that a power of attorney was discussed
at a time prior to the May 23 meeting with Bradley 's testimonial assertion
that not until May 12 did Fulco broach the subject with him. As found, Fulco
testified credibly to the contrary and I credit him, rejecting Bradley's testimo-
ny which I am convinced is based on an inaccurate recollection
s The foregoing with respect to the meeting of May 30 is based on a
consideration of the testimony of Vincent Fulco, John Bradley, and Stephen
Compagno . The findings with respect to the statements made by Bradley and
Compagno, respectively , at the time the letter was presented to Fulco are
based primarily on the testimony of Fulco . I credit the testimony of Compag-
no and Bradley concerning the exchange relating to the asserted loss of
support by the Union . Based on Compagno 's testimony, I find these utter-
877
In the meantime , on May 26, a decertification petition
had been filed by Jim Day in Case 20-RD-786. Thereafter,
on August 25, the case was dismissed by action of the Re-
gional Director . There is no evidence that the Company was
in any way responsible for the filing of the decertification
petition.
i. The aftermath of May 30
As found , on June 9 , the Union filed unfair labor practice
charges against Respondent . From May 30 until August 7
there were no contacts between Fulco and Bradley or Com-
pagno . On August 7, Fulco dispatched a telegram to Brad-
ley requesting a meeting to permit the parties to "try to sit
down and negotiate an agreement." Fulco stated he was
available for "meetings" and requested a response within 48
hours.
By a letter dated August 7 , Bradley responded as follows:
"Received your telegram sent on August 7 , 1972. Have you
received notice from N.L.R.B.? We haven't." Fulco con-
tacted Bradley by telephone on August 9 and requested a
collective-bargaining meeting with Compagno . Bradley as-
serted that because of the wishes of his employees Compag-
no did not wish to meet with Fulco . Thereafter, on August
9 Bradley again wrote to Fulco stating the following:
As promised during our telephone conversation of
August 9 : I contacted Mr. Compagno regarding the
contents of your telegram of August 7.
Mr. Compagno advised me that as he was instructed
by a letter from his employees dated May 26 , 1972, that
they no longer desired that you or your Union repre-
sent them and directed that he not bargain with you on
their behalf, as well as the fact they have filed a Petition
for Decertification , that it is impossible for him to go
against the wishes of his employees and bargain with
you on their behalf.
However, Mr. Compagno desires to conform to law
and will be bound by any decision of the National
Labor Relations Board.
The parties have not met in collective-bargaining negotia-
tions since May 30 and no agreement has been reached on
the terms of a collective -bargaining contract.
Conclusions
The scope of mandatory bargaining is defined in Section
8(d) of the Act as including "the mutual obligation of the
employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment: or the negotiation of an agreement, or any question
arising thereunder .... " In the absence of unusual cir-
cumstances, an employer must bargain in good faith with
the certified collective-bargaining representative of employ-
ees for a period of at least 1 year following certification. 10
Moreover, the obligation of an employer to bargain in good
faith with a union which has been certified by the Board
may be extended beyond the anniversary date of the certifi-
ances were made after Fulco had read the letter.
10 Ray Brooks v. N.L.R.B., 348 U.S 96 (1954), N.L.R.B. v. Holly-General
Company, 305 F 2d 670 (C.A. 9, 1962).
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation if there has been an absence of good-faith bargaining
on the part of the employer during the certification year)
However, where it is shown that during the certification
year ample opportunity was provided the union to engage
in meaningful bargaining and the union through neglect or
lack of diligence failed to avail itself of these opportunities,
the certification year will not be extended.12
Upon an application of these principles in light of the
record evidence and the contentions of the parties, I find
that Respondent violated Section 8(a)(5) of the Act by fail-
ing and refusing after February I I to designate a bargaining
representative with capacity and authority to conduct nego-
tiations with the Union. Respondent's failure to make this
designation of a collective-bargaining representative to
serve in support or in lieu of Stephen Compagno, who virtu-
ally 5 months earlier had become incapacitated by illness,
was in breach of its obligation under Section 8(d) to meet
and confer in good faith with respect to wages , hours, and
other terms and conditions of employment. In reaching this
conclusion, I do not attribute to Respondent a lack of good
faith in dealing with the Union during that period following
the commencement of negotiations on June 9, 1971, and
February 9, when Fulco, on behalf of the Union, suggested
for the first time that Respondent designate an authorized
representative to serve in Compagno's place and to partici-
pate in face-to-face bargaining table negotiations with him.
Similarly, in finding as I do that Respondent failed in its
obligations under Section 8(d), I reject Respondent's con-
tention that Fulco acquiesced in the course and manner of
bargaining imposed upon Respondent by Compagno's ill-
ness and is, therefore, together with the Union, estopped
from challenging the legality of Respondent's conduct. It is
unnecessary to consider the applicability of estoppel princi-
ples, for it is apparent upon this record that Fulco's own
strategy and approach to the bargaining table was signifi-
cantly affected and influenced by the illness incurred by
Compagno in September 1971. Indeed, Fulco's patience ap-
pears quite clearly to have been guided by appreciation of
the temporary disability suffered by Compagno, and not by
disinterest or neglect of the Union's obligations as the certi-
fied bargaining agent of Respondent's employees.
But in any event, the record shows that through the initial
phase of Compagno's recuperative period, Fulco continued
to prod Bradley for meetings . Then in early February, when
Bradley continued to insist that Compagno was physically
incapable of attending to the business of negotiating a con-
tract with the Union, Fulco made what must be construed
as the first of three separate demands that Compagno desig-
nate a representative to act in Compagno's stead. Compag-
no did nothing, although he appears to have been advised
of the intention of the Union to pursue "economic action
if bargaining could not continue." " Between February 11
and May 23 there were no meetings, although the Union
continued to seek them. It was in this posture, on May 30,
11 N L R B v. C & C Plywood Corporation, 413 F 2d 112 (C A. 9, 1969), see
also Mar-Jac Poultry Company, Inc, 136 NLRB 785
12 See Dixie Gas, Inc, 151 NLRB 1257
13 Although not explicit , Bradley's communication of February 11 is quite
consistent with Fulco's credited testimony that on February 9 he had urged
Respondent to appoint "someone with authority" to negotiate
following a single collective-bargaining meeting on May 23,
that Respondent, in effect, challenged the Union's authority
to negotiate on behalf of unit employees.
It is clear , as the Board has observed, that the Act imposes
upon an employer "the obligation to appoint a negotiator
with real authority to negotiate and a willingness to meet at
reasonable times and places. The law requires an employer
to apply himself to collective-bargaining sessions with the
same degree of diligence and promptness as he does in his
other important business interests, and his reluctance or
apparent disinterest in this area or his failure to appoint an
agent to negotiate fundamental issues is evidence of lack of
good faith in the bargaining process."14 Moreover, as the
Board in Exchange Parts Company, 139 NLRB 710, stat-
ed: 15
There can be no doubt but that agreement is stifled at
its source if opportunity is not accorded for discussion
or is so delayed as to invite or prolong unrest or suspi-
cion. Therefore, the exercise of a reasonable degree of
diligence and promptitude in arranging meetings for
the purpose of eliminating obstacles to agreement is an
obligation placed upon each party. The manner of the
performance of this obligation by the negotiator is rele-
vant in determining whether there has been a good-
faith discharge of this positive legal duty imposed by
statute. If a given negotiator becomes indisposed or is
otherwise unable to discharge this responsibility be-
cause of other commitments, it is the duty of the party
involved to designate a negotiator who can fully dis-
charge this obligation.
While the structure and nature of Respondent's operation
were such as to impose upon Compagno ultimate operation-
al and managerial responsibilities, the record reveals that by
March Compagno was attending to the essential duties of
management and ownership and delegating lesser responsi-
bilities. The Act required nothing more or less from him in
the serious business of conducting contract negotiations.
Bradley's role and participation in the negotiations preced-
ing Compagno's September heart attack had been such as
to have permitted Compagno to outline ultimate terms ac-
ceptable to him and to have left to Bradley the task of
negotiating the details of an acceptable collective-bargain-
ing agreement . Or alternatively, Compagno could have de-
signated someone else in whom he had confidence to
bargain through Bradley as the spokesman. Although pro-
ceeding in this manner would not have been a welcome
physical strain upon Compagno during his period of recu-
peration, a resolution of his Company's bargaining obliga-
tion in the manner indicated would have been in keeping
with Compagno's approach to his other essential business
responsibilities, and was a responsibility which he was com-
pelled to assume. His failure to do so was not consistent
with the good-faith obligation imposed by the statute.16
As Respondent did not fulfill the duty imposed upon it
under Section 8(d) of the Act to meet and confer with the
Union at reasonable times and intervals by reason of its
unlawful failure to designate an authorized bargaining rep-
14 National Amusements , Inc, 155 NLRB 1200, 1206, and cases cited there-
in at fn 6
15 At pp. 713-714
6 See Burgle Vinegar Company, 71 NLRB 829, 830
VALLEY IMPORTED CARS
resentative with capacity and authority to negotiate mean-
ingfully with the Union, there is no merit in Respondent's
contention that its obligation to bargain collectively with
the Union terminated with the filing of decertification peti-
tion by unit employees. This conclusion flows from the
determination above made that Respondent engaged in un-
fair labor practices under Section 8(a)(5) of the Act on and
after February 11, when it became clear that Compagno was
declining the Union's request that he designate a bargaining
representative to conduct negotiations in his stead. 7
Upon the foregoing findings of fact and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Automobile Salesmen's Union Local No. 1095, Retail
Clerks International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. All automobile salesmen of Respondent employed at
its Vallejo, California operation, excluding all other employ-
ees, 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. Since May 17, 1971, Automobile Salesmen 's Union
Local No. 1095, Retail Clerks International Association,
AFL-CIO, has been the exclusive and certified collective-
bargaining representative of the employees in the aforesaid
appropriate bargaining unit within the meaning of Section
9(a) of the Act.
5. On and after February 11, 1972, by refusing to bargain
collectively with the Union as the exclusive representative
of the employees in the aforesaid appropriate bargaining
unit, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) of the
Act and has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed them in
Section 7 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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has failed in its duty im-
posed under Section 8(d) of the Act to meet at reasonable
times and confer in good faith with the Union with respect
to wages, hours, and other terms and conditions of employ-
ment by failing to designate a bargaining representative
with physical capacity and authority to conduct bargaining
table negotiations with the Union, I shall order that, upon
17 See Bradenton Coca-Cola Bottling Company, d/b/a Sarasota Coca-Cola
Bottling Company of Sarasota, Florida, 402 F.2d 84 (C.A. 5, 1968), enfg. 162
NLRB 38.
879
request, Respondent, through a collective-bargaining repre-
sentative of its own choosing, who is physically capable of
and authorized to conduct negotiations, bargain collectively
in good faith with the Union as the exclusive collective-
bargaining representative of all employees in an appropriate
unit, as found herein, concerning the terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 18
Respondent, Stephen Compagno, d/b/a Valley Imported
Cars, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Automobile
Salesmen's Union Local No. 1095, Retail Clerks Interna-
tional Association, AFL-CIO, as the certified exclusive col-
lective-bargaining representative of its employees in a
bargaining unit consisting of all automobile salesmen of
Respondent employed at Respondent's Vallejo, California
operation, excluding all other employees, office clerical em-
ployees, guards and supervisors as defined in the Act.
(b) Refusing to bargain collectively with said Union in
violation of Section 8(a)(5) of the Act by failing in its obliga-
tion under Section 8(d) of the Act to meet at reasonable
times and confer in good faith with the Union with respect
to wages, hours, and other terms and conditions of employ-
ment, by failing and refusing to designate a representative
physically capable of and with authority to conduct negoti-
ations with the Union.
(c) In any like or related' manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining repre-
sentative of the employees in the above-described unit.
(b) Designate a collective-bargaining representative of its
own choosing who is physically capable of and authorized
to conduct collective-bargaining negotiations with the
Union.
(c) Post at its Vallejo, California, place of business copies
of the attached notice marked "Appendix." 19 Copies of such
Is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the said Board and become its
findings, conclusions and order, and all objections thereto shall be deemed
waived for all purposes.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
Continued
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, to be furnished by the Regional Director for Region
20, after being duly signed by an authorized representative
of Respondent , shall be posted , immediately upon receipt
thereof, and be maintained by it for a period of 60 consecu-
tive days thereafter , in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request , bargain collectively with Au-
tomobile Salesmen 's Union Local No. 1095, Retail
Clerks International Association , AFL-CIO, as the
certified exclusive bargaining representative of the em-
ployees in the following described unit:
All automobile salesmen employed at our Vallejo,
California operation , excluding all other employees,
office clerical employees , guards and supervisors as
defined in the Act.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
WE WILL designate for the purposes of conducting
said negotiations with the Union a bargaining repre-
sentative physically capable and authorized to conduct
said negotiations.
WE WILL NOT, by refusing to bargain collectively in
good faith with the Union, or in any like or related
manner interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to organize; to form,
loin, or assist a labor organization of their choice; to
bargain collectively through a bargaining representa-
tive chosen by them; to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any or all
such activities.
Dated By
STEPHEN COMPAGNO, d/b/a
VALLEY IMPORTED CARS
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 13018 Federal Building, Box 360
47, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.