Woody Pontiac Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1969

174 N.L.R.B. 507 (N.L.R.B. 1969)

WOODY PONTIAC SALES
Woody Pontiac Sales , Inc. and Automotive
Salesmen's Association ( A.S.A), affilitated with
Siuna, AFL-CIO. Case 7-CA-6476
February 13, 1969
DECISION AND ORDER
BX CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 22, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respondent
filed exceptions to the Decision and supporting
briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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 briefs, the
motion to strike, and answer thereto, and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner3 and
hereby orders that the Respondent, Woody Pontiac
Sales, Inc., Hamtramck, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'The General Counsel filed a motion to strike the Respondent's
exceptions and the Respondent filed an answer thereto. As the
Respondent ' s exceptions are in substantial compliance with the
requirements of Section 102 46(b) of the Board's Rules and Regulations,
we deny the General Counsel ' s motion.
'In his decision, the Trial Examiner inadvertently stated that Leo George
did not testify at the hearing , that Woody's letter to the Union regarding
the company 's pension system was written on April 15, 1967, and that
union business agent Shekell 's trip to Woody ' s was on October 11, 1967.
The record reveals, however, that George did testify, that the letter to the
Union was dated February 24, 1967, and that Shekell's trip took place on
October 12 or 13 These madvertencies do not affect the result reached
herein and are hereby corrected.
'The bargaining order is explicated in the remedy section , and the
General Counsel 's requested amendment is therefore unnecessary.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
507
THOMAS A. RICCI, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on September 9, 1968, at
Detroit, Michigan, on complaint of the General Counsel
against Woody Pontiac Sales, Inc., herein called the
Respondent, or the Company. The sole issue presented is
whether the Respondent refused to bargain in violation of
Section 8(a)(5) of the Act. The charge was filed on
December 5, 1967, and the complaint issued on July 24,
1968. The Respondent filed a brief on October 15, and the
General Counsel on the 16th.
Upon the entire record and from my observation of the
witnesses, I make the following.
_ FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Woody Pontiac Sales, Inc., a Michigan State
corporation, is engaged in the retail sale and servicing of
automobiles and related automotive products, with its
principal place of business in Hamtramck, Michigan
During the calendar year 1967, a representative period,
the Respondent's gross revenues from the sale and
distribution of new and used automobiles and trucks, was
in excess of $500,000. During the same period it received
goods and materials valued in excess of $50,000 which
were transported directly to its Michigan location from
places outside the State of Michigan. I find that the
Respondent is engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the
Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Automotive Salesmen 's Association (A.S.A.), affiliated
with Seafarers' International Union of North America,
AFL-CIO, herein called the Union, was originally
certified by the Regional Director (Case 7-RC-7547)
without affiliation. Pursuant to a petition for amendment
of the certification (Case 7-CA-66), and after hearing, the
Regional Director in a formal decision, after opposition
by the Respondent, amended the certificate to reflect that
affiliation, which followed issuance of the certificate. The
Respondent thereafter filed a request to appeal to the
Board in Washington, attempting to set aside the
Regional Director's action. The appeal was denied.
The answer denies the complaint allegation that the
Union is a labor organization as defined in the Act, but
no evidence was adduced at the hearing intended to
disprove the Regional Director's findings. Accordingly, I
find that Automotive Salesmen's Association (A.S.A.),
affiliated with Seafarers' International Union of North
America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
This is a refusal to bargain case in that it is alleged the
Respondent violated Section 8(a)(5) of the Act. More
precisely, the charge is that the Company refused to meet
and confer with the majority representative of its
employees, and thereby directly committed the unfair
174 NLRB No. 81
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice. The Union was certified by the Regional
Director on October 18, 1966, following a Board
conducted election. Between that day and December 5,
1967, when the charge was filed, the Respondent's agents
-- a lawyer and the then general manager of the
dealership met with union representatives, at their
request, only twice There was a short conference in the
lawyer's office on February 24 and April 14, 1967 There
were a number of demands upon the Respondent, before
and after these meetings, in person upon company officials
at the store, in person upon the company lawyer, and by
mail upon both the Company directly and upon its
attorney. In response to every separate request one reason
or another was advanced for avoidance or delay In the
course of the many communications, the Union several
times placed in the Company's hands a copy of its
proposed collective-bargaining agreement; this was a
comprehensive contract containing a number of clauses,
all of a noneconomic nature.
Throughout the entire period the Respondent made no
counterproposals. At no time did any of its representatives
voice a doubt as to the Union's continued majority
representative status. On December 6, 1967, its lawyer
wrote to the Union unequivocally withdrawing all
recognition because of the pendency of the AC petition,
and stating it would not bargain until the question raised
in that proceeding was finally resolved. By letter dated
January 31, 1968, in consequence of the filing of the
charge, the lawyer responded to a Board inquiry
concerning this case. This is a detailed statement of
position in explanation of the Respondent's conduct. It
does not, among the defenses suggested, say there ever
was a question of majority, or invalidity in the Union's
certification.
An implied defense at the hearing nevertheless seems to
have been that the Union did not represent a majority of
the employees involved by the fall of 1967, that the
Respondent - whether or not it said this to the Union at
the time had a right to refuse to bargain, and that in
any event the Union agreed to defer its bargaining
demand throughout the year 1967. For all these reasons
the Respondent asks dismissal of the complaint.
Appropriate Unit and Majority Status
The election in Case 7-RC-7547, which underlay
issuance of the certification in favor of the Union, was
held pursuant to a consent agreement, which set out the
agreed-upon bargaining unit. While conceding that the
election was held and that a majority of the employees
voted in favor of the Union, the answer denies the
appropriateness of the same unit, which in haec verba is
set out in the complaint. There is no evidence raising a
question as to the correctness of that unit at any time
since the election. Accordingly, I find that all new and
used car and truck salesmen at the Respondent's place of
business, excluding office clerical employees, guards and
supervisors as defined in the Act, and all other employees,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The answer also denies the entire complaint allegation
that the Union represented a majority of the employees at
the time of the certification and that it has since remained
the exclusive representative. The issue which this denial
attempts to raise is based upon certain factual assertions
set out in the answer as affirmative defenses These
include allegations of improper conduct by union agents
before the 1966 election, such as to cast a cloud upon the
results, and restatement of grounds originally advanced in
opposition to the AC proceeding. There were no
objections filed to the conduct of the election at the time,
and the opposition to amendment of the certification has
already been considered and rejected by the Regional
Director. Therefore, neither of these contentions may be
urged here. The third ground for disputing the continued
validity of the certification is said to be high turnover
among the employees and expressed desire by the
employee complement not to be represented by the Union.
For reasons which will appear below, I find these
insufficient grounds on this record to support such
contentions I therefore find that since October 18, 1966,
and at all times thereafter, the Union has been the
representative for purposes of collective bargaining of all
employees in the appropriate unit, and by virtue of
Section 9(a) of the Act, has been and is now the exclusive
representative of all the employees in such unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of
employment.
Communications Between the Parties; Demand and
Refusal
Appreciation of the conflicting contentions of the
parties requires, at the outset, explanation of a collateral
fact. Throughout the year 1967 Mr. Frederick Colombo,
the Respondent's attorney, also represented a large
number of other automobile dealers in the Detroit area,
all of whom were also under obligation to bargain with
this union because of outstanding certifications issued at
approximately the same time The Union had filed
upwards of 200 like representation petitions, and won
many elections. The number of dealers for whom
Colombo spoke, and on who's behalf he talked with union
agents, was variously estimated by witnesses at the
hearing as from 22 to 37. One witness said "Mr. Colombo
has an Association of dealers," and no one contradicted
him. Although in all instances it was new and used car
salesmen who were involved, it was the position of the
individual employers, as voiced by Colombo, that
bargaining for each had to be separate and independent of
any negotiations concerning any other dealer. The Union,
of course, found itself in the position of seeking to bargain
with a large number of companies almost simultaneously.
As Colombo said at the hearing, to him "This was a basic
problem."
The evidentiary details as to precise telephone calls,
dates of person-to-person conversations, and even
meetings, are somewhat inaccurate in the testimony
largely due to the fact that both the union agents and
Colombo were during the same period concerning
themselves with many companies in similar activities. Five
union agents testified, and it is clear their attempts to
bring about definite arrangements for negotiations with
this particular company, Woody Pontiac, were but part of
a more general responsibility to achieve some results with
others at the same time. The lawyer, too, held meetings in
his office, sometimes with a number of clients present. It
was natural he would be a little vague as to details.
However, there was virtual agreement between the
witnesses in substance as to when oral communications
occurred; there is, of course, very reliable evidence in the
form of written communications received in evidence.
The following is the story as told by union agents;
where written correspondence is indicated, it is reference
to stipulated exhibits.
WOODY PONTIAC SALES 509
In late December of 1966 or early the following
January, the Union invited a number of dealers, including
this Respondent, to a mass meeting in a certain
conference room. A number of auto dealer representatives
came; Colombo was there, but with only one of his
clients. No one appeared for the Respondent. The Union
distributed a copy of its contract proposal, but Colombo
said "he refused to have anyone else come there, because
he didn't want all of his clients there as general
members," and made clear he was not then representing
anyone not physically present.
On January 25 Mr. Duane Ashley, the union attorney,
wrote directly to the Company, demanding that it
commence bargaining on February 7, and requesting that
it respond by indicating agreement. There was no answer,
and Ashley again wrote the Company on January 30,
reiterating the demand. Colombo answered by mail dated
Februaiy 1: "Please be advised the undersigned represents
Woody Pontiac Sales, Inc " The letter went on to say that
Mr. Woody, president of the Company, was in California,
and therefore "we do not have authority to proceed to
meet with you for the purpose of negotiating or discussing
a contract," until "we have an opportunity to consult with
Mr. Woody."
With Colombo saying he was but he was not in a
position to act on behalf of Woody, Ashley wrote to him
again on February 10 with reference to three companies
Stan Long Pontiac, Engle Chevrolet, and Woody
and suggested February 24 as a negotiating date. To this
Colombo agreed, but explained in a February 15 letter
that the Woody matter' be "tentatively set" for
consideration that morning after the parties had taken up
"the problems of several other clients."
On February 24 Colombo met in his office with
Mulroy, president of the Union, Ashley, and Ashley's
partner, a Mr. Plath. This was the meeting where Ashley
expected to negotiate for three companies The Union
again gave Colombo a copy of its contract proposal.
Mulroy said he wanted the dealers themselves to be
present„ but Colombo answered he spoke for all three.
There was no discussion of the substance of the Union's
demands, and the meeting lasted about a half hour.
According to Ashley's uncontradicted testimony, Colombo
left matters with saying "he was going to look this over
and he would talk to the employers and get back at us... .
He wanted to discuss this contract, this Exhibit 21, with
these people and we would arrange another meeting."
Ashley said it was his understanding Colombo "was going
to get in touch with me."
John George, treasurer of the Union, sent to the store
"either the middle of March or during March, or the very
first part of April," looking for Mr. Woody He found the
manager, Leo George, instead, and asked for a bargaining
date. The manager answered "he didn't want to have
anything to do with the union or against the Union . . . I
would 'have to set the appointment up myself...." Fred
George, then a director of the Union, also spoke to
Colombo by telephone at about this time and a meeting
was fixed for April 14. In his office on that date the
lawyer, Colombo, met with Fred George; now Colombo
had with him Mr. Leo George, the Woody general
manager and brother-in-law of the owner. Again Fred
George gave Colombo a copy of the noneconomic
contract proposals, the lawyer asked a number of
questions, and then "said that they would talk over the
agreement and issue us a counterproposal" The union
agent asked for a new negotiating date, but Colombo
replied "we will have to set it up later on, because I am
very busy at the time but we will set up another date, and
I will give you a counterproposal at that time." All Mr.
Fred George could recall of Colombo's questions was that
the lawyer had posed the same inquiries at other meetings
involving other auto dealers, and that among the details
were the Company's right to discharge at will, elimination
of any seniority concepts and transfer of company interest
in the business.
On that same day, Mr. Woody wrote to the Union to
advise that the Company had installed a pension system for
all employees, including the salesmen, and asking did the
Union have any reason why he should not do that.
Ashley, for the Union, replied this was a subject of
collective bargaining, and it would be improper for the
Respondent to act unilaterally
The parties never met again.
On October 4 Ashley wrote to the Federal Mediation
and Conciliation Service seeking help to negotiate with 18
dealers, all represented by Colombo, including the
Respondent. The next day he wrote to Colombo, asking
him to arrange some kind of meeting, with three dealers
Engle Chevrolet, Woody Pontiac, and Stan Long
Colombo answered on the 9th; he spoke of these three
plus three additional dealers for which Ashley had
requested negotiations a few weeks earlier. "Obviously it
is physically impossible Lo negotiate labor contracts for all
6 of these clients simultaneously. Will you kindly submit
the names of any 2 of our clients who you wish to
negotiate with at this time."
On October 10 Business Agent Shekell appeared at the
Respondent's place of business; neither Woody nor the
manager were there. He left his name and address, stated
his desire to meet Woody, and asked to be advised. No
one called him back. He was there again the next day,
and found Rogers, the new general manager. He gave
another copy of the Union's contract to Rogers, and
asked for a bargaining meeting, Rogers said he would give
the contract to Mr Woody, and that Colombo was the
company lawyer. Shekell also telephoned the store that
day; now Woody told him he had received the contract.
When Shekell asked for a meeting, Woody answered "he
would have to contact his attorney Mr. Colombo." The
next day Shekell telephoned once more "and asked for a
negotiating date again. I asked him [Woody] if he had
been in touch with Mr. Colombo, he said no......
Finally, the union agents did get a promise from the
lawyer to talk about the Respondent. Shekell said he
obtained the commitment at the end of a meeting in
Colombo's office on November 15; Thomas White,
another business agent who used to accompany Shekell on
his rounds of the dealers, said it was promised at a
November 24 meeting. In any event, the promised meeting
- for November 28 - was never held because Colombo
cancelled it. Now Shekell became exasperated He called
Woody at about 2 p.m on the 28th and insisted there be a
meeting that afternoon. ". . I wanted to set up another
negotiating date for him and his dealership. . . . He said
he wouldn't do it he would have to have his lawyer, I said
get your lawyer in the office in your dealership, we will be
there at 5:00." Shekell told Woody "We will be there
anyway," lawyer or no lawyer. Shekell went on to testify
that he later called Woody several times that day, always
without results. Once he asked had Woody been able to
"get" his lawyer, but Woody said no. Shekell finally gave
up and never went to the store. He also that day called
Colombo, who gave him another date - January 13,
1968. This is the scheduled appointment which the lawyer
on December 6 canceled because of the pending AC
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition.
The charge was filed on January 5, 1968
As stated above, except for information appearing as
stipulated documentary exhibits the correspondence
between the parties - all of the foregoing facts are
established by oral testimony of witnesses for the General
Counsel. Leo George, the one time manager, did not
testify. Neither did Rogers, the general manager who
succeeded Leo George. Mr. Woody and Colombo did
testify. But for a different version of his talk, or talks,
with Shekell on November 28, Woody's testimony of what
was said and done between union agents and company
people, as well as that of Colombo, does not substanitally
conflict with that of the union witnesses. Considering the
total evidence, including related facts set out below, I
credit the testimony of the union lawyer and its agents.
The disagreement between the witnesses as to what they
had in mind at the time of the events, or why they did
what they did, is something else again.
After briefly recalling in general the events of February
and April of 1967, Woody said no one for the Union ever
"contacted" him again until Shekell called him on the
telephone on November 28. He then gave his view of that
conversation. He denied Shekell called him in October In
the next breath he admitted the union agent did "come
out to your [my] dealership in October of '67," and
testified- "I would say that he [Shekell] did come the
dates that he said. There is no problem there at all. The
one date that I wasn't there could very well be and the
next day he [Shekell] did see my manager, that could very
well be . . . They did come there, yes, they did." The fact
is, and I find, that in October the union agents several
times demanded bargaining, even left still another copy of
their contract proposal for Woody, but were denied any
opportunity to bargain at all. Shekell said he spoke
personally to Woody at that time, only to be told Woody
would have to see Colombo first. I believe this, for it is
the consistent position the Respondent took from first to
last.
Colombo admitted he had agreed to a bargaining
conference for November 28, and that he cancelled it.
Woody's story is that Shekell telephoned him only once in
the afternoon. "He said that he wanted to negotiate and
he is coming over to negotiate right then and there. I said
to him I was going to the zone office at that time and I
would be glad to set up an appointment with him and my
attorney He says, no, he was quite belligerent and quite
demanding, he says, no, we are coming over which
sounded like a good threat to me, we were coming over
now and I said `I'll tell you what, I am still going to the
zone office and I will be back at 5:00 and I will be here
and meet you.' So I went to the office, I came back at
4.30 and I was waiting for the call for his presence and he
did not show up, and never called that he wasn't coming."
Although the Respondent not once expressed doubt as
to the Union's majority representative status - not even
after the charge was filed, when its lawyer made a detailed
statement in defense - it called two witnesses whose
testimony was intended to prove the Union ceased being
the bargaining agent as early as September of 1967. I
accept as fact Woody's uncontradicted testimony that in
March of 1967 seven of his eight salesmen quit; the eighth
- Leo George - became manager. Woody hired new
people, and had five or six salesmen by October. John
Liss, a salesman, was hired on August 21. He testified
that he, and three other men - Rolland McLean, C. B.
Hicks and Haig Apkarian - decided they did not wish to
be represented by any union and that all four of them
went to Woody together and told him so He said these
visits to Woody's office started "ten days or fourteen"
after he was hired, and they continued thereafter
"approximately twice a month and this continued until
December." On November 24 Liss and these other three
men went to the Labor Board's office to file a
decertification petition; with the help of a Board agent
they signed a statement in support of the petition, but
because none of them wanted his name to appear on the
petition itself, left without in fact filing it. Liss went to a
lawyer - Bachara, Sr. - who, on December 4 filed the
petition for them. Rolland McLean, another new
salesman, corroborated Liss. There was another salesman,
Ron Whitfield, who refused to participate in the rejection
of the Union.
Woody also testified these four men came to him to
explain their views: "They said they were going to express
themselves by filing for decertification." Woody also said
the men came to him on this subject "frequently and
constantly ... and most between the period of September
until the end of the year . . . en masse and individuals."
As to his knowledge of the decertification petition,
Woody's testimony is "Either a day or two before they
decided to go down."
Analysis and Conclusions
Certain fundamental principles of Board law must be
kept in mind in appraising the merits of this complaint.
The first is so obvious a truism that any citation of
authority would be redundant. When employees choose to
be represented by a labor organization their employer
must meet with the union agents and talk about the
conditions of employment. The complaint says simply that
this Respondent was repeatedly asked to do this, but did
not. Next, when the Board has certified a union as the
bargaining agent, for a period of 1 year the employer has
no choice in the matter; it must meet and bargain
throughout that period. Barring what has been called
"unusual circumstances," there is a virtually conclusive
presumption that the majority status continues. Ray
Brooks v. N.L.R.B., 348 U.S. 96. Evidence of turnover or
even disaffection in the employee complement does not
constitute such an unusual circumstance as to permit
departure from this rule of law. "Alleged, or even actual,
loss of majority during the 1-year period is not such an
`unusual' circumstance as will justify an employer's
repudiation of the certified union as the statutory
representative of the employees in the unit which the
Board found appropriate." Reliance Clay Products
Company, 115 NLRB 1736, 1747.' Moreover, "The
replacement of economic strikers within the certification
year does not relieve any employer of the duty to bargain
in good faith with the certified representative of its
employees, ." Alva Allen Industries, Inc, 154 NLRB
1772. In enforcement proceedings, the Court of Appeals,
Eighth Circuit, denied enforcement on the ground that the
certified union had abandoned its interest in the
employees; as to the principle underlying the Board's view
of the case, the Court said: "We accept the Board's
promise and contention that the permanent replacement of
economic strikers is not an `unusual circumstance' that
would justify a refusal to bargain in good faith with the
Union during the certification year N.L.R.B. v. Reliance
Clay Products Company, 245 F.2d 599...." N.L.R.B v.
Alva Allen Industries, Inc , 369 F.2d 310 (C.A 8)
'Enforced, N L R B. v Reliance Clay Products Company, 245 F 2d 599
(C. A. 5)
WOODY PONTIAC SALES 511
Throughout the year following the Union's certification
in the case at bar - October 18, 1966, to October 18,
1967 - all the Union succeeded in accomplishing were
two very short meetings with counsel for the Respondent,
on February 24 with Mr. Colombo alone and on April 14
with Colombo and the store' s general manager, Leo
George. In each case Colombo accepted the Union's
written contract proposal and promised to consult Mr.
Woody and to think about them. He also promised to
make counterproposals, but never did so. Colombo was
correct in his testimony that at the close of the brief
February 24 meeting "no other meeting" was in fact "set
up." I have no reason , however, for not believing Ashley's
recollection that the company lawyer then promised he
"would get back at us," meaning Colombo would advise
the Union when he was ready to discuss the proposals It
is also true no date was fixed on April 14 for a later
meeting, but Colombo did not deny that he then told the
Union he would take it upon himself to carry matters
forward by offering counterproposals.
Other written requests to discuss Woody Pontiac
received delaying responses from the attorney because he
had numerous other clients that he had to service. For the
time being, the Union did nothing about this, because the
Respondent had a right to bargain separately and
independently of any other dealer Colombo represented,
and because no lawyer can do more than one thing at a
time. The determinative point of this entire case, however,
is that an employer cannot divest himself of a legal
responsibility - wash his hands of the duty to bargain, as
it were - by making it an onus upon the shoulders of a
busy lawyer. Mr Ashley, of the Union, could have
complained to the Board then, but he waited.
By October more union agents had been hired to do the
bargaining. This time Mr. Woody ignored them
completely. The manager, Mr. Rogers, did nothing about
the demand for bargaining, and simply passed along to
Mr. Woody still a third copy of the Union's proposed
contract. Following the pattern of the past, Woody shifted
the responsibility again to Mr. Colombo, said he had to
consult his lawyer, but never responded at all to the
bargaining demands of Mr. Shekell despite repeated
appeals only days apart. I find that during the first year
of the Union's certification the Respondent failed to meet
with union representatives on request and thereby refused
to bargain as the statute commands.
There then came the period after the end of the
certification year, of which Board law also speaks. The
cardinal rule is set out in Celanese Corporation of
America, 95 NLRB 664, 673:
However, after the first year of the certificate has
elapsed, though the certificate still creates a
presumption as to the fact of majority status by the
union, the presumption is at that point rebuttable even
in the absence of unusual circumstances. Competent
evidence may be introduced to demonstrate that, in
fact, the union did not represent a majority of the
employees at the time of the alleged refusal to bargain.
A direct corollary of this proposition is that after the
certificate is a year old, as in cases where there is no
certificate, the employer can, without violating the Act,
refuse to bargain with a union on the ground that it
doubts the union 's majority, provided that the doubt is
in good faith
And when the question of the Union's continuing majority
representative status after the end of the certification year
is raised by the employer, and a refusal to bargain is
defended on that ground, it must be proved that the
expressed doubt was predicated upon objective
considerations. As stated in United States Gypsum Co.,
157 NLRB 652, at such a time the employer "must
demonstrate by objective considerations that it has some
reasonable grounds for believing that the union has lost its
majority status since its certification."
Actually, in the case of Woody Pontiac during the year
1967 it is neither necessary nor proper to consider possible
applicability of this last stated rule. By October 18, the
Respondent had already flauted its statutory duty to
bargain, it had in fact refused to meet with the Union and
discuss appropriate matters. While the Celanese case says
the presumption of continuing majority after the
certification year is rebuttable, it also makes clear that the
employer may not raise the question at all "in a context
of illegal antiunion activities, or other conduct by the
employer aimed at causing disaffection from the
union. .
By the time salesman Liss and his friends filed their
decertification petition on December 4, over a month after
the anniversary the date of the certification, the Union
had for 13 months been passed back and forth between
the Respondent and its lawyer, frustrated at every turn,
and simply denied any chance of collective bargaining.
The entire course of conduct, so far as the Respondent is
concerned, appears as part and parcel of a deliberate
scheme to avoid bargaining. Had Woody negotiated with
the union agents, as Section 8(d) of the Act requires, there
might never had been disaffection among the employees,
or any petition filed at all. In an analogous situation, the
Board concluded that "a requirement that union
membership be kept intact" after the first certification
year "would result in permitting the Respondents . to
profit from their own wrongful acts of coercion...." Key
West Coca Cola Bottling Co., 150 NLRB 892, 908.2
The defense against the entire refusal to bargain
allegation must fail for an additional reason. There was
no good faith in the Respondent's attitude towards the
Union even after the certification year. The most revealing
fact in this aspect of the case - not only undenied, but
indeed conceded - is that no one on behalf of the
Company ever said the refusal to bargain in the end was
bottomed upon a belief that the Union no longer
represented the employees. Not even at the hearing, 9
months after the charge was filed, was there an explicit
contention, or an oral argument, that the Respondent
honestly doubted the Union's majority status. The closest
Mr. Woody came to the assertion was when he testified
that he offered to meet with union agents on November
28 "because I was going to tell them what the wishes are
of my salesman . . I was going to negotiations on that
basis."' He said four of his five or six salesmen had been
coming "frequently and constantly" from early September
to say they did not want the Union. Why did he not tell
this to Shekell when he came into the store several times
in October and even left a contract with the manager?
Shekell testified that on November 28, on the telephone,
Woody again repeated the old refrain "he would have to
have his lawyer." Woody contradicted Shekell's
recollection of this critical conversation, but even in his
'Enforced in pertinent part N. L.R.B v . Miami Coca Cola Bottling Co,
382 F.2d 921 (C A 5)
'The Respondent ' s repeated statement, in its brief, that in the course of
the AC proceeding it questioned the employees ' continuing desire to be
represented by the Automotive Salesmen's Association , is not true.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own version the company president said that his first
response to Shekell was "I would be glad to set up an
appointment with him and my attorney." Not a word
about employees turning against the Union. An employer
repeatedly asked by his employees not to deal with a
union on their behalf is hardly likely to agree to any
meeting, or to hide behind his lawyer for delay. Nor
would he hurry back from 'a business appointment, as
Woody said he did, only to tell the union agent to his face
of such a refusal to bargain, when he could so
conveniently have stated an honest doubt on the
telephone I do not credit Woody against Shekell. I find
that when Shekell insisted on meeting with him and
bargaining, Woody simply refused outright to meet with
him.
The exact date in November when Colombo agreed to
another bargaining date'with the Union may be in doubt,
but it is clear he did agree - after canceling the
November 28 scheduled date to meet on January 13.
The knowledge of the client - if in fact there ever was
any before November 28 must be imputed to the
lawyer representative. And even as late as December 6,
after the decertification petition had been filed, Colombo
cut off all negotiations, but still without suggesting a
doubt of majority status as his reason. At the hearing
Colombo testified the filing of the petition "could well
have been the reason for canceling the meeting on January
13. We didn't need to give them any reason . ," and
Woody said he "regretted" the fact the lawyer did not
then speak of loss of a majority. In a case turning upon
good or bad faith motivation, a statement 9 months later
that one thing or another "may have been" the reason for
earlier critical action taken, is indeed unpersuasive. The
fact of the matter is neither of them even at that late date
referred to a defense which 9 months later, at the
hearing, is made to appear retroactively as the real
grounds of defense. It may well be true that Liss, and
other salesmen, during the decertification year were
opposed to having a union. In the light of the total record,
however with neither Woody nor his lawyer ever
mentioning the fact to the `union representatives, I cannot
believe either Liss or McLean, on the one hand, nor
Woody on the other, that the men made clear their
position to the Respondent before the filing of the RD
petition.
There are certain realities in this story that cannot be
denied. The Respondent, like any employer, had a right to
be represented by a lawyer in the RC and AC
proceedings, and even to do its bargaining. Mr. Colombo,
as a lawyer, can hardly be faulted if his great experience
and high degree of professional competence attract clients
in such numbers that they have to wait in line for his
services. There is no doubt there were times, as this very
record shows, when he could not avoid asking the Union
to choose which auto dealers it wished to negotiate for
before others. After all, he represents upwards of 20 or 30
separate companies, all in the same business and all under
duty to bargain with the same union at the same time
In this case, however, these facts cannot be viewed
apart from the essential nature of the complaint allegation
and of the law which underlies the entire proceeding. No
finger of blame is pointed at the lawyer; he is neither a
respondent nor a party. There was no duty upon him, so
far as the statute is concerned, to bargain with anyone.
The Union's certificate runs to the Company, and it is
upon the Respondent that Section 8(a)(5) imposes an
unqualified obligation to meet with the union agents and
discuss proper subjects of collective bargaining. At every
stage Woody kept referring the Union to Colombo, even
as late as November 28. The short answer to what the
Respondent now calls lathes on the part of the Union
during 1967, is that an employer may not interpose a busy
lawyer between itself and the bargaining agent of its
employees, and later, because the union awaited patiently,
accuse it of procrastination
There is always the possibility that Mr. Woody really
believed Colombo could somehow adequately satisfy the
legal burden which the statute put on the Company,
although the owner's indifference to the Union in
October makes such a supposition highly unlikely. There
is no reason to believe the lawyer was doing anything but
his best to satisfy all his clients. In fact, what the lawyer
called "a basic problem" in his office, was significantly
revealed once again in this very case after the close of the
hearing. Although the hearing lasted only 1 day and the
parties were granted the full 5-week period thereafter for
filing briefs - unquestionably adequate time in view of
the simple issue presented - , 4 weeks later, on October
7, the lawyer filed a request for an additional 6 week
period And his reason - undoubtedly true -- was that
among other matters that demanded his urgent attention
were eight briefs soon due in eight other pending unfair
labor practice cases, presumably comparable to this one.
There was no choice but to deny the request for further
delay in this proceeding. The Board's certificate is now 2
years old and there has as yet been no bargaining. The
right of employees to engage in collective bargaining
cannot await the personal convenience of any particular
representative, whether hired by employer or labor
organization.'
I find, upon the record in its entirety, that at all times
after issuance of the certificate in favor of the Union, the
Respondent refused to meet and negotiate with its agents,
and thereby refused to bargain in good faith as required
by Section 8(d) of the Act, and that therefore it violated
Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
The Respondent having refused to bargain with the
Union, it must be ordered to do so now. The complaint
requests, as part of the remedial order, that the Union be
granted a bargaining period of 1 year starting with the
time when the Company does begin to bargain in good
faith, very much in the fashion that the original Board
certification carried a 1-year period of presumptive
validity. In the circumstances of this case, I find the
request reasonable and persuasive. The remedy for unfair
labor practices committed must be tailored so as
adequately to restore the status quo and thereby effectuate
the policies of the Act. Whether it be now or then, the
Union must have "ample time for carrying out its
mandate." Ray Brooks, supra. Compliance with the
affirmative order to bargain here, therefore, will mean
that from the day the Respondent commences bargaining
in good faith, at whatever stage of the proceeding it
chores to do so, the Union's statutory majority
representative status will be the same as it was at the start
of the original certificate year - on October 18, 1966.
Compare Minute Maid Corporation, 124 NLRB 355.
V H Rutter-Rex Mfg Co, 86 NLRB 470; Insulating Fabricators, Inc,
144 NLRB 1325 , enfd . 388 F .2d 1002 (C A 4)
WOODY PONTIAC SALES 513
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, 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 the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All new and used car and truck salesmen employed
by the Respondent, excluding office clerical employees,
guards and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act
4. Automotive Salesmen's Association (ASA), affiliated
with Siuna, AFL-CIO, was on October 18, 1966, and at all
times thereafter has been the exclusive
collective-bargaining representative of Respondent's
employees in the appropriate unit, within the meaning of
Section 9(a) of the Act.
5. By refusing on and after October 18, 1966, to meet
with the above-named labor organization and to bargain
with it for purposes of collective bargaining, the
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.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case , I recommend
that Woody Pontiac Sales , Inc , Hamtramck , Michigan,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Automotive
Salesmen's Association (ASA), affiliated with Siuna,
AFL-CIO, as the exclusive representative of all employees
in the bargaining unit.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights to self-organization , to form, join, or assist any
labor organization , to bargain through representatives of
their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and 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 Union
as the exclusive bargaining representative of all employees
in the appropriate unit described above, with respect to
rates of pay , wages, hours of employment , and other
terms and conditions of employment , and, if an
understanding is reached , embody such understanding in a
signed agreement.
(b) Post at its place of business in Hamtramck,
Michigan, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms provided by
the Regional Director for Region 7, shall, after being
signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
it has taken to comply herewith.6
'In the event that this Recommended Order be 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 be 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 be adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps 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 NOT refuse to bargain collectively with
Automotive Salesmen's Association (ASA), affiliated
with Siuna, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
their rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL bargain collectively, upon request, with the
Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if
an understanding is reached, embody such
understanding in a signed agreement,
The bargaining unit is:
All new and used car and truck salesmen,
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
WOODY PONTIAC SALES,
INC.
(Employer)
Dated By
(Respresentative) (Title)
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days or compliance with its provisions, they may communicate
from the date of posting, and must not be altered, directly with the Board's Regional Office, 500 Book
defaced, or covered by any other material. Building, 1249 Washington Boulevard, Detroit, Michigan
If employees have any question concerning this notice 48226, Telephone 226-3244.