Action Automotive, Inc.

National Labor Relations Board - Board DecisionsJun 16, 1987

284 N.L.R.B. 251 (N.L.R.B. 1987)

ACTION AUTOMOTIVE 251 Action Automotive, Inc. and Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 7-CA-25638 16 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 10 February 1987 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Action Automotive, Inc., Flint, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent did not file exceptions to the judge's determination that Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC, as a result of a merger, became the successor to Local 40, UFCW, the certified representative. In affirming the law judge's conclusion that the Respondent has an ob- ligation to bargain with the Union, we fmd it unnecessary to pass on the judge's general discussion of the effect of employee turnover on presump- tions of union majority status. Rather, our finding of a bargaining obliga- tion here is based on the principles, referred to by the judge, that (1) absent unusual circumstances, a union's majority status is irrebuttably pre- sumed to exist throughout the 1-year period following the union's certifi- cation, Ray Brooks v NLRB, 348 U S 98 (1954); (2) the 1-year period following the instant Union's certification, during which its majority status will be irrebuttably presumed, shall be construed under the instant circumstances not to begin until the date that the Respondent begins to bargain in good faith with the Union, Mar-Jac Poultry Ca, 136 NLRB 785 (1962); and (3) the employee turnover in the instant case from the time of the Union's certification is not the sort of "unusual circumstance" (such as dissolution of or substantial schism within the Union) that would permit rebuttal of the Union's presumed majonty status, Ray Brooks v. NLRB, supra, National Plastic Products Go, 78 NLRB 699, 706-707 (1948) (even if substantial turnover during the certification year resulted in actual loss of majority support, union would still retain statutory status as exclusive bargaining representative for duration of certification year). Charles F. Morris, Esq., for the General Counsel. Stewart .I. Katz, Esq., of Detroit, Michigan, for the Re- spondent. Mary Ellen Gurewitz, Esq., of Detroit, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me in Detroit, Michigan, on 7 November 1986, on an original unfair labor practice charge filed on 20 March 1986, and a complaint issued on 7 August 1986, alleging that Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing, on request, to furnish information necessary and relevant to the per- formance of Charging Party's duties as collective-bar- gaining representative. In its duly filed answer, Respond- ent denied that any unfair labor practices were commit- ted. Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Party, and the Respondent. On the entire record' in this proceeding, 2 including consideration of the posthearing briefs, it is found as fol- lows FINDINGS OF FACT I. JURISDICTION Respondent is a Michigan corporation, with a main office in Flint, Michigan, and facilities located through- out the State of Michigan from which it is engaged in the retail sale and distribution of automobile parts and re- lated products and services. In the course of the oper- ations, during the calendar year ending 31 December 1985, a representative period, Respondent derived reve- nues exceeding $500,000 in value, and received at its Michigan locations automobile parts and other goods and materials valued in excess of $50,000, which were trans- ported directly from points located outside of that State. The complaint alleges, the answer admits, and it is found that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that Local 876, United Food and Commercial Workers International Union AFL-CIO (Local 876) is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues This case raises policy issues that transcend the limited question raised by the pleadings. It also furnishes a new battleground for Respondent's continued challenge to the validity of certifications of representative issued 5 years earlier by the Board. Thus, by virtue of elections con- ducted on 29 May 1981, the Board, in January 1982, cer- 1 Pursuant to stipulation of the parties, the record is reopened for the limited purpose of receiving Jt Exh 1, which was submitted following close of the hearing 2 Errors in the official transcript of proceedings are noted and correct- ed 284 NLRB No. 36 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tified that Local 40, United Food and Commercial Workers International Union (Local 40), a sister local and an alleged predecessor to Local 876, was the majori- ty representative in separate units of Respondent's em- ployees. The certifications were contested by Respond- ent, but upheld by the Board in a subsequent 8(a)(5) pro- ceeding. 3 Litigation continued4 until the Supreme Court on 19 February 1985 affirmed the Board, and remanded the proceeding for appropriate action. 6 The Board's 1982 Order directing Respondent to recognize and bargain the separate units was finally enforced by the Sixth Circuit Court of Appeals on 13 May 1986.6 In the interim, during the summer of 1982, Local 40 was absorbed by Local 876 through an internal merger. The proponents of the complaint contend that Local 876, by virtue of that reorganization, succeeded to, and ac- quired all enforceable representation interests held by Local 40. In the instant proceeding, there is no dispute concern- ing Respondent's failure at any time to bargain collec- tively in the certified units. The lawfulness of that stand is now tested under a complaint that narrowly alleges an 8(a)(5) violation based on the latter's refusal to honor a specific allegation are conceded and, as an abstraction, that question has been given only cursory attention in this proceeding. Indeed, the information soughtâ€”namely, the names and mailing addresses of employees in each of the respective unitsâ€”was the subject of formal requests, duly communicated to the Respondent in unequivocal form, and, accordingly, constituted producible data under a large body of Board precedent. 7 See, e.g., Sts. Mary & Elizabeth Hospital., 282 NLRB 73 (1986). Respondent's defenses reduce that limited issue to a vehicle for again testing the basic duty to bargain, for, it now asserts that its refusal was justified by events occur- ring since 1982 that invalidate the certifications. More specifically, Respondent first claims that Local 876 is not a legitimate successor to the certified representative, Local 40, and hence it has no duty to treat with that Union. 8 Alternatively, Respondent argues that any cur- rent duty to bargain has been eliminated by subsequent developments that have rendered inappropriate the units in which the 1981 elections were conducted. 3 262 NLRB 423 (1982). 4 In 1983, the Sixth Circuit Court of Appeals denied enforcement of the Board's Order See 717 F.2d 1033 (6th Cir. 1983) 5 469 US. 490. 6 See G C Exh 6 7 See G C Exh 2 8 The General Counsel contends that any right to contest the merger was waived because not raised by Respondent until the filing of its answer to the instant complaint There is no merit in this claim The Gen- eral Counsel does not indicate, and I am not persuaded, that this issue could have been expeditiously raised and litigated at an earlier time To the extent ascertainable on this record, Respondent was first notified of the merger through the Charging Party's letter of 18 March 1985 (G C Exh 2). Thus, it presumably was unaware of that development when the Supreme Court issued its decision on 19 February 1985 In this light, the Instant proceeding provided the first appropriate opportunity for the Re- spondent to raise the question. No rule or policy is called to my attention obligating a charged party, in these circumstances, to communicate a pu- tative defense prior to the filing of an answer The Board's decision in Colonial Manor I97Z Inc, 253 NLRB 1183, 1184 (1981), fails to support any such requirement B. Defenses to the Refusal to Bargain 1. The status of Local 876 as a successor to the certified representative Pursuant to settled authority, mergers of labor organi- zations will be honored by the Board if: (1) those entitled to participate in the process are afforded an opportunity to consider, discuss, and vote on the question through a reasonably democratic process, and (2) the merger does not alter the fundamental identity of the selected repre- sentative so as to disrupt the continuity of representation. See NLRB v. Food & Commercial Workers Local 1182 (Seattle-First National Bank), 475 U.S. 192 (1986); Canter- bury Villa of Waterford, 282 NLRB 462 (1986). Respond- ent's rejection of Local 876 rests on the claim that the merger was defective under both standards. By way of background, it is noted that in 1981, at the time of the Board elections, Local 40 was situated in Flint, Michigan, with jurisdiction in the northeastern sector of that State. At the time of the merger, its mem- bership numbered some 3200. Local 876 was much larger with some 19,000 members. The latter's geographic juris- diction extended to seven counties in southeastern Michi- gan, including the Detroit metropolitan area. It was and is now headquartered in Madison Heights, Michigan. The internal steps preliminary to merger began and were completed in the summer of 1982. Respondent does not dispute that during that timeframe, members of each of the respective locals were given advance notice, the opportunity to discuss, and to vote by secret ballot on the propriety of the merger. Specifically, in the case of Local 40, all members were notified by letter dated 11 June 1982, that the merger had been under consideration by its executive board, that the board recommended approval, and that a special meeting would be held in Flint, Michigan, on 29 June 1982, and in Saginaw, Michigan, on 30 June 1982, for presentation, explanation, and discussion of the merger agreement, and to allow the membership to vote on its acceptance or rejection. 6 In the ensuing special meeting at Flint, the merger was approved by a vote of 69 for, 18 against, and at that held at Saginaw, by a vote of 53 for, 21 against." On each occasiOn, after the merger agree- ment had been read to the membership and discussion held, voting was conducted by secret ballot. As for Local 876, on 25 May 1982, that Union's execu- tive board met and approved the merger agreement, re- solving to recommend that the membership Concur." Notice was provided by Local 876 through the latter's regular monthly publication, which is routinely distribut- ed to its entire membership." Through that medium members were informed of the proposal and that it would be considered and voted on 6 July 1982 at a gen- eral membership meeting. That meeting was held as scheduled. In the course thereof the merger agreement and resolution were read to the members, a motion was made to approve, discussion followed, and after a secret g See G C Exh 5(a) is See G C Exhs 5(b) and (c). " See G.0 Exh. 4(a) 12 See G C Exh 4(b) ACTION AUTOMOTIVE 253 ballot the merger was adopted by a vote of 97 for, and 28 against." Respondent's challenge to the fairness of this process rests entirely on the fact that "nonmembers were not no- tified of the vote, nor allowed to participate." In this connection, it is a fact that employees in the bargaining units were nonmembers and that they, as well as all other represented nonmembers, were precluded from ex- pressing their preference. With this as its premise, Re- spondent would invoke the Amoco doctrine" as applied in F. W. Woolworth Co., 268 NLRB 805 (1984), a policy in which the Board declined to recognize affiliation elec- tions as binding on employers unless nonmembers were allowed to vote. The Amoco doctrine subsequently was overruled by the Supreme Court in NLRB v. Food & Commercial Workers Local 1182 (Seattle-First National Bank), supra. The Court viewed the Board's fragmentation of an estab- lished bargaining relationship in the effort to enforce the enfranchisement of nonmembers as unduly offensive to the statutory policy encouraging stability in existing bar- gaining relationships. The Board's position was also criti- cized as an intrusion into internal affairs of labor organi- zations neither intended by Congress, nor authorized by the Act. Central to the Court's position was an entreaty that the Board not withhold its remedial powers to con- done an employer's termination of a bargaining relation- ship, absent evidence of loss of majority and the exist- ence of A question of representation that would thereby emerge. Respondent would distinguish Seattle-First National on grounds that the disenfranchisement of nonmembers in that case related to affiliation, not merger. However, this assertion is unaccompanied by explanation, and it is diffi- cult to imagine just why the controlling statutory poli- cies would be any more relaxed in one context or the other. In either case, a matter of internal union concern is central to the controversy and Board intrusion is to be tested in light of whether the withholding of a bargain- ing order would "effectively decertif[y] the reorganized union even where [reorganization] does not raise a ques- tion of representation." 475 U.S. at 203. The analysis of the Supreme Court leaves no room for doubt on this score: Under the Act, the certified union must be recog- nized as the exclusive bargaining representative of all employees in the bargaining unit, and the Board cannot discontinue that recognition without deter- mining that the affiliation raises a question of repre- sentation. . . . [A]n affiliation may affect a union's representa- tion of the bargaining unit even if its does not raise a question of representation, but that argument overlooks the fact that a union makes many deci- sions that "affect" its representation of nonmember employees. It may decide to call a strike, ratify a collective-bargaining agreement, or select union of- la See G C Exh 4(c) 14 Amoco Production Go, 262 NLRB 1240 (1982). ficers and bargaining representatives. Under the Act, dissatisfied employees may petition the Board to hold a representation election, but the Board has no authority to conduct an election unless the ef- fects complained of raise a question of representa- tion. In any event, dissatisfaction with representa- tion is not a reason for requiring the union to allow nonunion employees to vote on union matters like affiliation. Rather, the Act allows union members to control the shape and direction of their organiza- tion, and "[n]on-union employees have no voice in the affairs of the union." . . . We repeat, dissatisfac- tion with the decisions union members make may be tested by a Board-conducted representation election only if it is unclear whether the reorganized union retains majority support. Obviously, the exclusion of nonmembers from a merger vote is no more suggestive that they do not support the emerging union than in the case of affiliation. In either case, a question concerning representation is not inferra- ble on the basis alone. 15 See Retail Workers Local 881 v. NLRB, 797 F.2d 421 (7th Cir. 1986). Accordingly, contrary to Respondent, Seattle-First Na- tional, supra, is dispositive of the fairness issue, and on authority of that decision it is concluded that the exclu- sion of nonmembers from the merger process created no impediment to Board recognition and enforcement of ac- cession by Local 876 to Local 40's representational inter- ests. In the alternative, Respondent contends that the merger produced "a significant change in actual identity and [that] a substantially different organization exists." The limitations on the Board's authority to terminate a certification on this ground as expressed in Seattle-First National, supra, possessed a familiar ring. Once more the Court warned that "if these changes are sufficiently dra- matic to alter the union's identity, affiliation may raise a question of representation, and the Board may then con- duct a representation election." 475 U.S. 206. The key- word is "dramatic," a term to be eyaluated in accord- ance with traditionally accepted causes of a question of representation. In this respect, as heretofore indicated, Local 40 at the time of the merger was one-tenth the size of Local 876. Each Local represented a distinct geographic area. Local 40 was abolished by the merger and its headquarters closed. On the other hand its incumbent business repre- 15 It is not surprising that the Board failed to distinguish between affili- ation and merger In applying the Amoco rule In this regard, the Board stated in F W Woolworth Co. supra at 806 as follows. The Amoco case involved an election in which nonmembers of the independent were barred from voting on the affiliation with the International The same principles apply, however, when, as here, there is a merger between two locals within the same International union In both instances the certified union is replaced by a different entity from that designated by the unit employees In both cases a factor of primary importance is whether the affected employees had an opportunity to pass on the change of representative. That a merger election involves locals of the same parent union does not di- minish the impact of the change on the en4Iloyees or extinguish the due-process requirement that all employees in the bargaining unit be afforded the opportunity to vote 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentatives were integrated into the administrative struc- ture of Local 876, without change in responsibility. The president of Local 40 was added to Local 876's executive board, and held the official position of "Executive Assist- ant to the President of Local 876." He retained primary responsibility for all negotiations and grievance activity in areas previously serviced by Local 40, while continu- ing to supervise the former business representatives of that Local. Against this background, the Respondent argues that the merger produced "a total loss of identity of an exist- hig organization through infusion into another organiza- tion six (6) times its size." In terms of precedent, Re- spondent's position is grounded on the policy of the Third Circuit Court of Appeals evident from such cases as Sun Oil Co. of Pennsylvania v. NLRB, 576 F.2d 553 (3d Cir. 1978); NLRB v. Bernard Gloekler North East Co., 540 F.2d 197 (3d Cir. 1976); and U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 1972). All involved an in- dependent union's affiliation with an established Interna- tional union. In each, the Court concluded that the reor- ganization altered the union's "structure, administration, assets, membership, autonomy and by laws," conse- quences regarded as sufficiently dramatic to give rise to a question concerning representation. In due respect to the Court, these holdings are difficult to reconcile with Seat- tle-First National, supra; they appear to draw their es- sence from routine or inherent consequences of any in- ternal reorganizationâ€”be it affiliation or mergerâ€”and in that sense prove too much. Thus, it is difficult to imagine an affiliation or merger that would not expose members to a new set of obligations and allegiances or result in a loss of autonomy and control, or which would not lump concerns of those affected with those of thousands of other members. In drawing on these normal, forseeable consequences to disrupt the continuity of representation, the Third Circuit might well have adopted a per se rule, which exposes established bargaining relationships to greater jeopardy than did the abortive Amoco doctrine. To the extent that those decisions afford primacy to the traditional effects of an internal union reorganization over reasonable evidence as to the preference of unit em- ployees, the Third Circuit's view collides with Seattle- First National, supra. At the cornerstone of the Supreme Court's rationale in Seattle-First National, supra, was a stern signal that the policy encouraging stable bargaining relationships yield only in those circumstances where the organizational changes are so vast as to give rise to a more than specu- lative inference that majority support no longer exists. 475 U.S. 205-206. Consistent therewith, and in contrast with the Third Circuit, the First Circuit Court of Ap- peals in NLRB v. Insulfab Plastics, 789 F.2d 961, 968 (1st Cir. 1986), recently stated that "where the union mem- bership has expressed its desire to affiliate . . . and the continuing majority support of the original bargaining representative is not in doubt, we are not inclined to override the Board's judgment that substantial continuity exists. . . ." The statutory values underlying this hold- ing are in consonance with the Fifth Circuit, which earli- er had taken a dim view of the weight to be given inher- ent effects of internal union reorganizations. Thus, in J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 857-858 (5th Cir. 1978), that Court, in contrast with the Third Circuit, stated: The factual determination at issue revolves not around superficial criteria such as the size of the re- spective locals or organizational differences in the national unions of which they become a part. Rather, we must consider whether changes have oc- curred in the rights and obligations of the union's leadership and membership, and in the relationships between the putative bargaining agent, its affiliate, and the employer. Here, the effort to excuse any obligation to recognize Local 876 on this ground is unaccompanied by evidence that unit employees suffered a change in constitutional obligations or that collective-bargaining policy or em- ployee services were materially affected in the critical areas of contract negotiation and grievance administra- tion. Employees were to receive the same services, through the same individuals. Moreover, there is no sub- stantive proof or appearance that employees would be led to believe that the merger was likely to produce a change either in the nature and quality of their represen- tation or in the relationship between the designated rep- resentative and their employer. See, e.g., Kentucky Power Co., 213 NLRB 730, 731 (1974); F. W. Woolworth Co., 194 NLRB 1208 (1972); United States Gypsum Co., 164 NLRB 931 (1967). Respondent, thus, has failed to substantiate either defi- ciency in the procedures by which Local 876 succeeded to the bargaining interests formerly held by Local 40 or that the merger produced a breach in the continuity of representation. Hence this internal union matter failed to affect the ongoing obligation to bargain. 2. Supervening changes within the collective- bargaining units Respondent also denies any current obligations to rec- ognize and bargain with Local 876 on the ground that the 1981 elections were conducted in units that no longer are appropriate." Respondent in this respect is charged with a rigorous burden. The evidence necessary to termi- nate an extant bargaining relationship must be "clear, cogent, and convincing." NLRB v. Jim Kelly's Tahoe Nugget, 584 F.2d 293 (9th Cir. 1978); NLRB v. Wilder Construction Co., 804 F.2d 1122, 1125 (9th Cir. 1986). Here, the law is even more exacting, for the defense is ' 6 There is no merit in the contention by the General Counsel that Re- spondent is estopped or otherwise procedurally barred from raising this defense Insofar as this record reveals, the instant proceeding provides the most practicable vehicle for contesting the certifications on that basis. Moreover, contrary to the Charging Party, even after a duty to bargain is lawfully fixed, the Board has the authority, in a proper case, to absolve the employer from that obligation This is so even when the employer's refusal to bargain takes place during the certification year See St Berna- dette's Nursing Home, 234 NLRB 835 (1978), Trojan Boat Co. 175 NLRB 935 (1969). ACTION AUTOMOTIVE 255 addressed to a period in which Respondent declined to honor Board certifications.17 Turning to the facts, here the elections were held in separate units consisting of (1) main-office clerical em- ployees, and (2) all other employees at Respondent's nine stores and warehouse then existing in the metropolitan area of Flint, Michigan. As Respondent observes, since 1981, the separate units have experienced extensive turn- over. Among those who voted, only two are still em- ployed in the bargaining units. Under the precedent, employer appeals based on em- ployee turnover have failed to generate overriding sym- pathy. Even where voluminous, this factor creates little more than ambiguity regarding the present preference of employees or what would have been their choice had recognition been conferred and bargaining ensued in timely fashion. i8 For that reason employees hired after designation of the Union are presumed by law to support the Union to the same extent as those replaced." The converse of that principle is no less conjectural, and hence turnover stimulates argument but no firm suspicion of loss of majority. Moreover even less weight is given to turnover following a refusal to bargain As was em- phasized in NLRB v. .I. W. Rex Co., 243 F.2d 356, 360 (3d Cir. 1957): It is essential to note that the merger which re- spondent company contends rendered the unit inap- propriate occurred only two months after certifica- tion of the union as bargaining agent. A valid certi- fication is, of course, not intended to be a perma- nent relationship irrespective of changed conditions. But an employer cannot rely on the changes to jus- 17 As a general rule, a certified representative initially is entitled to an unimpeded opportunity to bargain for 12 months. "[Al bargaining rela- tionship once rightfully established must be permitted to exist and func- tion for a reasonable period in which it can be given a fair chance to succeed." See Franks Bros Co v. NLRB, 321 U S. 702, 705 (1944). Re- spondent's election to contest the validity of the certification has denied employees the benefits of collective-bargaining during the protected term. See, e.g., Mar-Jac Poultry Co, 136 NLRB 785 (1962). Absent unusual cir- cumstances, there is no relief from the duty to bargain during that period. Ray Brooks v. NLRB, 348 US 96 at 103 (1954) 18 Respondent cites Westinghouse Electric Co., 38 NLRB 404 (1942), in support of its claim that the expanded work force excuses it from any obligation to bargain. That case is clearly distinguishable. It did not in- volve employer self-help to fragment an established bargaining relation- ship. There, the Board during preelection stages took an innovative step to avoid delaying an election in the face of an employer's nonvenfiable contention that n planned in the future to expand its plant so as to quad- ruple the size of the work force. The desirable policy of encouraging sta- bility in existing bargaining relationships was neither in issue nor impeded by the Board's desire to expedite employee choice through direction of a conditional election Pennco, Inc , 250 NLRB 716 (1980) As Respondent observes, in United Artists Communications, 280 NLRB 1056 fn. 4 (1986), Chairman Dotson and Member Dennis expressed a willingness to consider evidence of turnover and its negative influences on union representation in the "context" of evaluating whether a remedial bargaining order is necessary to redress unfair labor practices that arguably are sufficiently serious to undermine a union's majority Beyond that dictum there is no evidence that a majority of the Board in any case has overruled the general policy that such evidence alone will not be treated as indicative of loss of major- ity. In any event, reliance on turnover in assessing "the potential for con- ducting a fair election against [a] background of unlawful activity" is far less threatening to accepted statutory policy than in cases testing the lawfulness of a withdrawal of, or refusal to grant recognition in the con- text of a rightfully established bargaining relationship tify his refusal to bargain when those changes occur within the certification year, and especially where, as here, the first refusal to bargain occurred before the modification of the unit structure. N.L.R.B. v. Armato, 7 Cir., 1952, 199 F.2d 800, 803. . . . 1V.L.R.B. v. Prudential Insurance Co., 6 Cir., 1946, 154 F.2d 385, 389. . . . In Frank Bros. Co. v. NLRB, 321 U.S. 702 (1944), the Su- preme Court approved an order that "an employer bar- gain exclusively with the. . . union which represented a majority of the employees at the time of the wrongful re- fusal to bargain despite that union's subsequent failure to retain its majonty." 321 U.S. at 705. The Court reasoned as follows: [A] requirement that union membership be kept intact during delays incident to hearings would result in permitting employers to profit from their own wrongful refusal to bargain. . . . [W]ere [the Board to] instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer's wrongful refusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone performance of their statutory obligation. [321 U.S. at p. 704-705.] In the face of these controlling principles, it is difficult to identify any statutory policy that wOuld be furthered by giving turnover any greater recognition in this case. Aside from turnover, Respondent attacks the units on the basis of "functional" and "operational" changes alleg- edly manifested by relocation of existing stores and the opening of new stores, as well as increases in employee complement and man-hours within the established units. It is true that since 1982, man-hours required to operate the stores and square footage have increased, six new stores have opened in the Flint area, and three of the original nine stores have relocated, albeit in the same trade or market area. Contrary to the Respondent, these factors, considered together or separately, are merely re- flective of economic growth achieved through normal business successes during the substantial delays attributa- ble to its own failure to recognize the results of the Board elections. Forseeable consequences of this nature, derived, as they are, from delays occasioned by an em- ployer's good faith, but unsuccessful and illegal challenge to the validity of a certification, furnish no basis for ne- gating objectives of the Board's election procedures and the need to preserve public confidence in that peaceful process. That which is predictable is not unusual, and it is entirely within the realm of possibility, that the oper- ational changes herein would have had no significant impact on the emerging bargaining relationship had Re- spondent accepted the results of the 1981 elections. "Given the Act's principal purpose of promoting stability in the workplace, once employees have chosen to be rep- resented and their choice has been certified, the Board has been reluctant to find unusual circumstances." Paper Mfrs. Co., 274 NLRB 491 (1985). 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In concluding that the supervening business adjust- ments did not give rise to "unusual circumstances," it is noted that the basic character of the employing enter- prise was not altered thereby either in terms of products sold, services made available, equipment utilized, or the nature, quality, or interests of the work force. Classifica- tions have remained unchanged and bargaining unit work is not shown to be functionally different from that per- formed at the time of the elections. Thus, the separate community of interest and identity delimited by the original unit determinations does not appear to have been blurred by interchange or other factors that preclude ef- fective collective bargaining or render that process eco- nomically impracticable or impossible.2Â° Accordingly, it is concluded that Respondent's obliga- tion to recognize and bargain with Local 876 remains viable, and thus its failure, on request, to furnish the names and addresses of employees in the appropriate units violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 876 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(5) and (1) of the Act by refusing, on request, to furnish the exclusive collective-bargaining representative names and addresses of employees in the appropriate units, data relevant and necessary to the performance of that Union's duty as ex- clusive collective-bargaining agent. 4. The unfair labor practices found above constitute unfair labor practices having an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, it shall be rec- ommended that it be ordered to cease and desist there- from and to take certain affirmative action designed to effectuate the purposes and policies of the Act. More- over, inasmuch as Respondent continues to challenge the status of Local 876 as the exclusive representative of the employees in question, to ensure that these employees are accorded the services of their collective-bargaining agent for the period provided by law, the certification year shall be construed as commencing on the date that the Respondent begins to bargain in good faith. See Mar- Jac Poultry Co., 136 NLRB 785 (1962); Burnett Construc- tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). Counsel for the General Counsel, in a 17-page "boiler plate" motion, urges that the remedy include a visitator- ial clause authorizing the Board to engage in discovery if necessary to monitor compliance with any remedial 20 Cf. Renaissance Center Partnership, 239 NLRB 1247 (1979), in which consolidation of an unrepresented group of security employees with a smaller, recently certified unit composed of individuals within that same job classification, "completely obscured the separate identity of the certi- fied bargaining unit" 239 NLRB at 1248. order issued herein. However, the Board previously has declined to broaden its standard remedial formula in this respect. As there is no showing or argument as to how the specific conduct under scrutiny in this proceeding warrants such relief, the posture of the General Counsel here is no different than in the several cases where the identical motion has been denied uniformly. See 0. G. Willis Co., 278 NLRB 203 (1986); Nathan's Furniture Store, 278 NLRB 268 (1986); and Rebel Coal Co., 279 NLRB 141 (1986). Based on the cited authority, the re- quest is denied. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent, Action Automotive, Inc., Flint, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith by failing, on re- quest, to furnish information relevant and necessary to the performance of duties required of the exclusive bar- gaining representative of Respondent's employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union with a list of employees in the appropriate units, together with their current addresses. (b) Post at those of its facilities in Flint, Michigan, which are within the appropriate collective-bargaining units, copies of the attached notice marked "Appen- dix." 22 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 25 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ACTION AUTOMOTIVE 257 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse, on request, to furnish informa- tion that is relevant and necessary to the performance of the duties of Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC as exclu- sive collective-bargaining representative of our employ- ees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth at the top of this notice. WE WILL give the Union lists of the names and ad- dresses of current employees in the established collec- tive-bargaining units in the metropolitan area of Flint, Michigan. ACTION AUTOMOTIVE, INC.