Bishop, McCormick & Bishop

National Labor Relations Board - Board Decisions

Feb 5, 1953

102 N.L.R.B. 1101 (N.L.R.B. 1953)

BISHOP, MCCORMICK & BISHOP 1101
All our employees are free to become or remain , or to refrain from becoming
or remaining members in good standing of the above-named union or any other
labor organization except to the extent that this right may be affected by an
agreement in conformity with Section 8 ( a) (3) of the National Labor Rela-
tions Act.
THE KBOGEE COMPANY,
Employer.
By ----------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced , or covered by any other material.
BISHOP, MCCORMICK & BISHOP AND AUTOMOBILE TRADE SERVICES, INC.,
A DIVISION CF BISHOP , MCCORMICK & BISHOP and AMALGAMATED
LOCAL UNION 259, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO. Case No. 2-CA- 2200.
February 5,1953
Decision and Order
On September 18, 1952, Trial Examiner Eugene F. Frey issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief. The Respondents' request for oral argument is hereby denied
as the record, exceptions, and brief adequately present the issues and
positions of the parties.
The Board 1 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 2 The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following exceptions,
additions, and modifications :
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Murdock and Peterson].
2 The Trial Examiner justified, In part, the assertion of jurisdiction in this case on the
ground that the Respondents are "an integral part of a multistate enterprise." By that
statement the Trial Examiner intended to indicate , as the Board has stated in Baxter Bros.,
91 NLRB 1480 , that, as a franchised automobile dealer, the Respondents function "as an
essential element in a Nation -wide system devoted to the manufacture and distribution of
automobiles."
102 NLRB No. 105.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We do not agree with the Trial Examiner that the Respondents,
in distributing to employees in the certified unit the second quarterly
installment due under their profit-sharing bonus plan, took uni-
lateral action in violation of Section 8 (a) (5) and (1) of the Act.
The record establishes, as the Trial Examiner also found, that these
bonus payments were made to all employees in their employ in ac-
cordance with their customary practice which was instituted before
the Union's certification. As the Respondents' action appears to be
nothing more than a continuation of an established condition of em-
ployment, we shall reverse the Trial Examiner's finding in this
respect .3
2. For the reasons stated in the Intermediate Report, we agree with
the Trial Examiner that the Respondents violated Section 8 (a) (5)
and (1) of the Act by refusing to honor the Union's certification and
by refusing to bargain with the Union on and after October 4, 1951.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the Board hereby
orders that Respondents Bishop, McCormick & Bishop and Auto-
mobile Trade Services, Inc., a Division of Bishop, McCormick &
Bishop, New York City, New York, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Local
Union 259, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, as the exclusive representative of all em-
ployees of the Respondent employed at their New York City whole-
sale parts division, including receiving room, storeroom, and ship-
ping room employees, inside partsmen or countermen, telephone order
clerks, the five heads of departments, and drivers and porters, but ex-
cluding office clerical employees, automobile and truck salesmen, out-
side parts salesmen , executives, and all other supervisors as defined
in the Act.
(b) In any like or related manner interfering with the efforts of
Amalgamated Local Union 259, United Automobile, Aircraft & Agri-
cultural Implement Workers of America, CIO, to bargain collec-
tively with them on behalf of the employees in the said appropriate
unit.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
8 In view of this determination , we do not concur in the Trial Examiner 's inference that
the bonus payment was coercive and illegal in undermining the Union 's majority status.
BISHOP, McCORMICK & BISHOP 1103
(a) Upon request, bargain collectively with Amalgamated Local
Union 259, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, as the exclusive representative of the em-
ployees in the appropriate unit described above, with respect to rates
<,f pay, wages, hours of employment, and other conditions of employ-
ment, and if any understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at their Brooklyn, New York, wholesale parts division,
copies of the notice attached hereto marked "Appendix." 4 Copies of
such notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by Respondents' representa-
tives, be posted by the Respondents immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, as to what
steps the Respondents have taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with AMALGA-
MATED LOCAL UNION 259, UNITED AUTOMOBILE, AIRCRAFT &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, as the
exclusive representative of all employees in the bargaining unit
described below with respect to wages, rates of pay, hours of
employment, and other conditions of employment and, if any
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All employees employed at our New York City, New York,
wholesale parts division, including receiving room, store-
room, and shipping room employees, inside partsmen or
countermen, telephone order clerks, the five heads of depart-
ments, and drivers and porters, but excluding office clerical
+ In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing An Order."
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, automobile and truck salesmen, outside parts
salesmen, executives, and all other supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere with the
efforts of the above-named union to bargain with us on behalf
of the employees in the bargaining unit described above.
BISHOP5 MCCORMICK & BIsiaop,
By --------------------------------------
(Representative ) (Title)
Dated ------------------
AUTOMOBILE TRADE SERVICES, INC.,
By --------------------------------------
(Representative ) ( Title)
Dated ------------------
This notice must remain posted for sixty (60) consecutive days from
the date hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This case arises on a complaint issued March 3, 1952,' by the General Counsel
of the National Labor Relations Board (herein called General Counsel and
the Board), through the Regional Director for the Second Region (New York,
New York), against Respondents, Bishop, McCormick & Bishop (herein called
Bishop), and Automobile Trade Services, Inc., a division of Bishop, McCormick
& Bishop (herein called Trade Services), which charges that since about August
20, 1951, Respondents have refused to bargain collectively with the Union as
the statutory representative of their employees in an appropriate bargaining
unit, in violation of Sections 8 (a) (5) and (1) and 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, the charges on which it is based, and notice of hearing
thereon, were duly served on Respondents and the Union.
In their separate answers, Respondents admitted the jurisdictional facts
alleged in the complaint as to Bishop, but denied the Board's jurisdiction
over either Respondent, and denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held on May 26, 1952, at New York,
New York, before the undersigned Trial Examiner, in which all parties par-
ticipated, the General Counsel and Respondents being represented by counsel
and the Union by a business representative, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence
bearing on the issues, to present oral argument, and file briefs and proposed
findings of fact or conclusions of law, or both. The General Counsel and Respond-
ents presented oral argument, and Respondents have filed a brief with the
Trial Examiner. Respondents' motion at the beginning of the case to dismiss
1 Based on an original charge filed November 1, 1951, and a first amended charge filed
February 19, 1952, by Local 259, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, herein called the Union.
BISHOP, McCORMICK & BISHOP 1105
the complaint for lack of jurisdiction, and their motions to dismiss on that
ground and for lack of proof on the merits, at the close of General Counsel's
case, were taken under advisement; they are disposed of by the findings and
conclusions in this report. General Counsel's motion at the close of the case
to conform the pleadings to the proof with respect to formal and minor matters
was granted without objection.
Upon the entire record in the case, all facts being stipulated or contained
in documentary evidence, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent Bishop is a new York corporation, engaged in the business of buying
and selling new and used automobiles and trucks, parts, and accessories. It
maintains and operates 14 branches or divisions throughout New York City,
New York, and its environs for the sale of new and used motor vehicles and
accessories and for the service and repair of such vehicles. One of these
divisions, the wholesale parts division, is maintained and operated for Bishop
in Brooklyn, New York, by Respondent Trade Services, which is a New York
corporation and a wholly owned subsidiary of Bishop.
During the year ending February 29, 1952, Bishop purchased motor vehicles
and accessories valued in excess of $2,000,000, of which approximately 95
percent (about $1,900,000, in value) was shipped to it from points outside the
State of New York. In the same period, Bishop sold at its New York branches
automobiles and accessories valued in excess of $2,000,000, of which less than
1 percent was sold and shipped to points outside the State. Bishop holds a
franchise from the Chrysler Corporation to sell Dodge and Plymouth automobiles
and trucks. In the wholesale parts division mentioned above, Trade Services
sells automobile parts and accessories at wholesale and retail, and supplies
all other branches of Bishop with such parts and accessories. During the
year ending March 31, 1952, Bishop purchased at wholesale for Trade Services
automobile parts and accessories valued at approximately $720,000, of which
about 87 percent (or about $626,400 in value) was ultimately received by Trade
Services. About 98 percent of these purchases (over $705,000) was shipped
into New York from points outside the State. In the Same period, Trade
Services sold, at wholesale and retail, parts and accessories valued at retail
prices in excess of $828,000, of which no substantial portion was shipped to
points outside the State.
Bishop has a single integrated and uniform personnel policy for all its branches,
including that operated by Trade Services, which policy includes a single labor
relations policy, central hiring of new employees, interchangeability of employees
among branches, an integrated system of wage increases, a single overall vaca-
tion policy, uniform seniority and retirement plans, companywide bonus plan,
and central administrative operation.
In a representation proceeding which will be discussed hereafter, the Board
has already asserted jurisdiction over both Respondents' In view of this,
and on the basis of all the facts found above, I conclude and find, contrary to
Respondents' contentions, that Trade Services operates a division of an inte-
grated enterprise, that both Respondents are an integral part of a multistate
enterprise, and are engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act for the Board to assert
2 Case No. 2-RC-2479, Decision and Direction of Election reported in 92 NLRB 1512.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction over their operations, particularly the operations of the wholesale
parts division'
Amalgamated Local Union 259, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act, which admits to membership employees of
Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
In its decision and direction of election in the representation proceeding
aforesaid, the Board found that all employees of Respondents employed at
their New York City wholesale parts division, including receiving room, store-
room, and shipping room employees, inside partsmen or countermen, tele-
phone order clerks, the five heads of departments, and drivers and porters,
but excluding office clerical employees, automobile and truck salesmen, out-
side parts salesmen, executives, and all other supervisors as defined in the
Act, constituted an appropriate unit within the meaning of Section 9 (b) of
the Act. Respondents having offered no substantial evidence to the contrary,
I find that the group of employees outlined above constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act'
B. The Union's majority status and request to bargain and Respondents'
refusal to bargain
In a secret ballot election held on February 21, 1951, under Board super-
vision in the representation proceeding, a majority of employees in the above
unit voted for the Union as their collective-bargaining representative. On March
2, 1951, the Board's Acting Regional Director for the Second Region certified
the Union as the exclusive representative of the employees in said unit pursuant
to Section 9 (a) of the Act.
By letter of its counsel dated March 16, 1951, and addressed to Bishop, the
the Union advised Respondents of its certification aforesaid, and requested
them to advise when they could meet with the Union to begin negotiation of a
collective-bargaining agreement (General Counsel Exhibit No. 3). By letter of
March 26, 1951, Bishop replied directly to the Union, stating its belief that the
Board's decision and certification was erroneous in fact and in law, but offering,
without prejudice to that contention or their right to review the Board's de-
cision, to attempt to reach an agreement with the Union on a contract, and sug-
gesting that the Union submit a set of special written proposals, rather than
s The fact, stressed by Respondents, that Trade Services is not itself the holder of a
Chrysler franchise and does not technically buy or accept delivery of materials from
Chrysler, is immaterial, because, since Trade Services is a wholly owned subsidiary of
Bishop operating a vital and integral part of Bishop's business, it is clear that delivery
of parts and material to Bishop for the use of the division operated by Trade Services is in
legal effect delivery to Trade Services . In legal effect, both Respondents purchase and
accept delivery of parts and accessories from out-of -State sources to the extent found
above.
4 This finding is not altered by the stipulated facts relating to Bishop' s single and
integrated personnel policy, and the various components of that policy, which I have found
above. The factors of a uniform personnel policy, the integration of the wholesale parts
division with all other divisions as a single business enterprise under central supervision,
and interchangeability of employees, were considered by the Board, together with other
facts and circumstances, in reaching its determination of the above unit in the representa-
tion proceeding.
BISHOP, MCCORMICK & BISHOP 1107
its usual standard form of contract, which should be "tailored" to take into
account the fact that the unit encompassed only a small portion of the total
number of employees of Trade Services at the wholesale parts division, and the
fact that Bishop operated other branches in which the Union had no repre-
sentation (General Counsel Exhibit No. 4). In a telephone conversation on
April 18, 1951, Samuel Meyers, a union representative, and Frederic R. San-
born, Respondents' counsel, agreed to meet on April 24, 1951, to discuss a pro-
posed contract. In making that date, Respondents' counsel requested that the
Union present a "tailored" contract, and not the standard form normally used
by the Union. At the meeting of April 24, Meyers submitted to Sanborn the
Union's standard form of contract, which both men reviewed in detail as to its
form. Sanborn suggested and marked many changes on the document, and re-
turned it to Meyers with these notations, to be revised. At the close of that
meeting, no date for a further meeting was requested or fixed by either side.'
On August 17, 1951, Bishop sent to all employees of Trade Services a letter
enclosing a quarterly profit-sharing bonus check. The letter is set forth in
full in Appendix A annexed hereto.
On August 20, 1951, 21 employees of the wholesale parts division, out of a
total of 24 employees in the unit aforesaid, signed and presented to C. M. Bishop,
president of Bishop, a paper stating their decision to represent themselves in,
any bargaining with Trade Services, stating their reasons therefor, and their
desire "to cancel all affiliation with Local No. 259 C. I. O." (General Counsel
Exhibit No. 5).
In the middle of September 1951, Meyers called Sanborn on the telephone rela-
tive to negotiation of an agreement, but the discussion was inconclusive. On
October 4, 1951, Meyers conferred with Sanborn in the latter's office. Sanborn
advised the union representative that he was still waiting for a revised or "tail-
ored" contract to be submitted ; Meyers replied that he did not think the Union
could offer a "tailored" contract, but only its standard form. After further
discussion, which apparently included a consideration of the employees' state-
ment of August 20, 1951, and problems raised thereby, Sanborn advised that the
simplest solution of the problem was for the employer to rely on the Vulcan
Forging Company case and to take the position that the Union's agency had been
revoked by the employees' statement of August 20. Sanborn confirmed this
position by letter of the same date to Meyers, reading as follows (General Coun-
sel Exhibit No. 6) :
This will confirm our personal conversation this morning, in the course
of which I advised you that I felt that probably the best solution to the
problem which has been facing us, was to take the position that the notice
which we received from the employees of Automobile Trade Services, Inc.,
dated August 20, 1951, had relieved Automobile Trade Services, Inc. of the
duty to bargain collectively with Local 259, as was held very recently in
National Labor Relations Board v. Vulcan Forging Co., 188 Fed (2d) 927,
930-931.
In addition, and so that the points involved shall not be deemed to have
been overlooked or waived, I feel that the company must likewise rest
its position on the grounds that the original decision and certification of-
the National Labor Relations Board was both wrong on the facts and
wrong on the law, as mentioned in the company's letter to you dated
March 26, 1951.
N As the original charge was filed herein November 1, 1951, no finding of unfair labor
practices could be made on the basis of the above facts, under Section 10 (b) of the Act.
However, the facts are relevant as background for the events found hereafter.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I believe you understand that I regret that I feel that the necessity
arises to write this letter, but it seems to me to offer the only practical solu-
tion to what appears to be an insoluble problem.
On October 23, 1951, Meyers wrote a letter to a Air. Marvin, general manager
of Trade Services, enclosing a "petition" to Trade Services apparently signed
by 19 employees in the unit aforesaid on October 11, 1951, whereby 18 of them
repudiated their signatures on the statement of August 20, 1951, and "hereby
affirm our support for Local 259, UAW-CIO, and ask that the company negotiate
a contract with the Union immediately." In the letter the Union requested that
"you negotiate an agreement with us as quickly as possible." Respondent did
not reply to this letter .6
On November 26, 1951, 17 employees of Trade Services in the unit, including
14 who had signed the second "petition," signed and delivered to C. M. Bishop,
president of Bishop, another statement purporting to repudiate the Union in
terms identical with those of the first statement of repudiation (General Counsel
Exhibit No. 9).
On November 30, 1951, the Union, through counsel, sent Respondents' counsel
a letter formally requesting that Respondents meet with the Union to negotiate
a collective-bargaining agreement with it as representative of those employees
in the "Parts warehouse of the company for which the Union was certified"
(General Counsel Exhibit No. 10). By letter of December 3, 1951, Respondents,
through counsel, replied that they were under no duty to bargain with the Union
"for the reason, among others, that the authority of the Union to act as col-
lective bargaining (sic) was heretofore revoked in writing by a majority of
the employees and presently it remains revoked" (General Counsel Exhibit No.
11).
I find on the basis of the above facts that on March 16, October 4 and 23, and
November 30, 1951, the Union requested that Respondents bargain collectively
with it as the representative of the employees in the appropriate unit. The let-
ters of March 16, October 23 (with enclosure), and November 30, 1951, clearly
and sufficiently defined the unit for which the Union sought to bargain.'
I further find that on October 4, 1951, and at all times since, Respondents have
failed and refused to bargain with the Union, on the grounds (1) that the Board
has no jurisdiction over Respondents and that the unit found by the Board is
inappropriate, and (2) that the Union had lost its majority status by Novem-
ber 30, 1951, due to prior written repudiation of it as bargaining agent by a
majority of the employees in the unit. The basic issues in the case are the
validity of these defenses.
C. Contentions of the parties; concluding findings
The jurisdictional issue was resolved against Respondents in the representa-
tion proceedings. I have found herein the Respondents are and have been in
6 General Counsel Exhibits Nos. 7 and 8. The letter was misaddressed to the Union
itself, although it began "Dear Mr. Marvin," although the record does not clearly show
whether the envelope was similarly misaddressed, there is no proof that it was delayed
in transit or not received. I therefore make the usual inference that it was received in due
course. Eighteen of the signatures on General Counsel Exhibit No. 8 appear on the earlier
repudiation, General Counsel Exhibit No. 5.
4 The C. L. Bailey Grocery Company, 100 NLRB 576. General Counsel relies only on
the request contained in the letter of November 30, 1951, evidently assuming that the
March request was satisfied by the meeting and discussion of April 24, 1951. However,
although the Union made no attempts for nearly 5 months thereafter to negotiate further,
Meyers sought to reopen negotiations in September, which led to the meeting of October 4,
1951 , at which there was some renewed discussion of the contract form , followed by
Respondents ' refusal to bargain on the legal grounds stated above.
BISHOP, McCORMICK & BISHOP 1109
commerce, and are subject to the jurisdiction of the Board. I have also found
that the unit alleged in the complaint and found in the representation case is
the appropriate unit. Since Respondents' disagreement with the Board on these
points was one of the reasons for the refusal to bargain stated in the letter of
October 4, 1951, I conclude and find that their refusal to bargain on that ground
is a violation of Section 8 (a) (5) and (1) of the Act.'
The second issue is whether there was an obligation upon Respondents to bar-
gain with the Union, on request, during the certification year, notwithstanding
apparent written repudiations of the Union by a majority of the employees in
the unit during that year. In urging the lack of such obligation on the facts
here, Respondents rely squarely upon N. L. R. B. v. Vulcan Forge Company, 188
F. 2d 927 (C. A. 6), setting aside a Board order in 85 NLRB 621.
The record shows that a majority of employees in the unit purported to repudi-
ate the Union as their agent on August 20, 1951, that a similar majority reversed
that action by reaffirming their choice of the Union on October 11, 1951, and a
like majority then reverted to their former repudiation on November 26, 1951.
The first repudiation was brought to the attention of the Union by Respondents
on October 4; the reversal thereof on October 11 was known to the Union on or
before October 23; there is no proof as to when or how the Union learned of the
repudiation of November 26, 1951. On the face of the documents, these actions
of the employees appear to be voluntary and valid actions of employees acting
sui juris, and Respondents argue that the two documents of "repudiation," par-
ticularly the final one of November 26, 1951, must be given the same weight in
determining the desires of the employees on the dates they were signed as was
accorded the Board certification of March 2, 1951. General Counsel argues, to
the contrary, that the three documents, involving conflicting actions of the
employees and apparent shifts in their desires for representation by the Union
during the certification year, indicate at most the existence of an uncertainty
among them, a vacillation in their desires, and do not amount to the "unusual
circumstances" mentioned by the Board in the Vulcan Forging case, and that
they cannot overthrow the presumption of continuance of majority status during
the first year following certification, which has been established by numerous
decisions of the Board. General Counsel also argues that the only situation in
which an employer may legally refuse to bargain due to a certified union's loss
of majority status within the year is where the union has in fact ceased to func-
tion and gone out of existence, a circumstance which does not appear herein.
I find it unnecessary to rule on the latter argument, for I am of the opinion that
the weight of authority supports the basic contention of General Counsel and
is adverse to those of Respondents.
The Board has long and consistently held, with the approval of the great weight
of court decisions , that, in the absence of special or unusual circumstances, a
certification of representatives must be honored for a reasonable period, usually
at least for 1 year following the certification, even though there may be some
evidence of a repudiation of the certified union by the employees in the ap-
8 Gilbert Motor Sales, Inc., 97 NLRB 98; White Construction and Engineering Company,
Inc, 97 NLRB 1082. Respondents first expressed their disagreement with the Board's
assertion of jurisdiction in their letter of March 26 , 1951, to the Union, wherein they
reserved their right to seek a review of that action , while still expressing willingness to
meet with the Union in an attempt to work out a contract "without prejudice to this
position ." General Counsel makes no contention that this reservation affected the bargain-
ing negotiations of April 24, 1951, or that it connoted a refusal to bargain which con-
tinued into the period covered by the complaint.
250983-vol. 102-53--71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate unit 9 The basic theory underlying this doctrine is that, in order to
insure proper collective representation for employees and achieve stability in
the administration of the Act, a bargaining relationship once rightfully estab-
lished must be permitted to exist and function for a reasonable period, during
which it can be given a fair chance to succeed.'° If Respondents' contention
were adopted, and the Board were obliged to cancel its certification of the
results of a secret-ballot election solely on the basis of an open, informal poll,
petition, letter, or other communication signed by employees under undisclosed
conditions, no matter whether immediately after the election or at some later
date, "litigious bedlam and judicial chaos" would result, and the very right of
collective bargaining which the Act was designed to protect and secure to
employees would be denied. Similar contentions have been rejected on these
grounds by various circuit courts of appeals. N. L. R. B. v. Botany Worsted
Mills, 133 F. 2d 876, 881, 882 (C. A. 3), cert. denied 319 U. S. 751; N. L. R. B. v.
Appalachian Electric Power Company, 140 F. 2d 217,220-222 (C. A. 4) ; N. L. R. B.
v. Century Oxford Manufacturing Corporation, 140 F. 2d 541, 542, 543 (C. A. 2),
cert. denied 323 U. S. 714; N. L. R. B. v. Hanson Hosiery Mills, Inc., supra. In
upholding the Board's doctrine and the protection given the certification of a
union thereunder, these courts have expressly recognized that the well-known
democratic device of a secret-ballot election held in accordance with the pro-
visions of the Act is the most effective and reliable means of securing the un-
trammeled and true expression of employees' desires. This refutes Respondents'
argument that the informal documents signed by their employees in August
and November 1951, should be considered of equal dignity with, and given
the same weight as, the election of March 1951, and the certificate based
thereon, so as to cancel out that certificate." These authorities also recognize
that employees who desire to change their bargaining representative may do
so effectively by recourse to the Board, which must hold an election upon the
filing of a petition for decertification by the employees in the bargaining unit,
provided no valid election shall have been held within the preceding 12-month
period. See Section 9 (c) (1) (A) (ii) and (3) of the Act. These provisions
are legislative pronouncements of the policy establishing the year following
certification as a period of repose. In The Belden Brick Company, 83 NLRB 465,
the Board reiterated and followed this policy in holding that a petition for
decertification filed during the year following certification does not, except
under unusual circumstances, present a question concerning representation so
as to relieve the employer of the obligation to bargain with the certified union.
It is clear from these authorities that the employer cannot decide for itself,
on the basis of informal employee action purporting to repudiate the certified
union within the certification year, whether the Union has lost its bargaining
status and, deciding that it has, refuse to deal with it further. That question is
° Mid-Continent Petroleum Corporation, 99 NLRB 182 ; Ray Brooks, 98 NLRB 976;
L. L. Mature Transport Company, 95 NLRB 311; N. L. R. B. v. Sanson Hosiery Mills,
195 F 2d 350 (C. A. 5) and court decisions cited therein ; N. L. R. B. v. Geraldine Novelty
Company, Inc, 173 F 2d 14, 16, 17 (C. A. 2). See also Poole Foundry t Machine Co.
v. N. L. R B., 192 F. 2d 740 (C A. 4), cert. denied 342 U. S. 954.
i° Franks Brothers Company v N. L R. B., 321 U. S. 702, 705.
" In Reeder Motor Company, 96 NLRB 831, where there was evidence that employees
became dissatisfied with the Union, and attempted by individual written regulations
to withdraw from it shortly after having designated it as their bargaining agent, the
Board said, "if a recently selected bargaining representative is to be divested of its au-
thority, we believe it reasonable to require that the withdrawal of such authority be
evidenced by clear and unambiguous conduct and with a degree of certainty required to
establish the original designation, for surely the necessary standards of proof in both
these situations should be the same."
BISHOP, MCCORMICK & BISHOP
for the Board to determine under orderly statutory procedure ; and in the mean-
while the employer must deal with the duly certified union .12 In the face of the
great weight of judicial decisions cited above, and the rationale thereof, I con-
clude that the decision of the Sixth Circuit Court of Appeals in the Vulcan Forg-
ing Company case is not controlling . In Mid-Continent Petroleum Corporation,
99 NLRB 182 , on facts more cogent than those at bar , the Board considered and
refused to follow the court's ruling in that case. I must therefore conclude
that the employee "repudiations" of the Union on August 20 and November 26,
1951 (even if considered unequivocal expressions of their desires, without the
conflicting statement of October 11, 1951), do not constitute such "special" or
"unusual" circumstances occurring within the certification year as to impair the
Union's representative status or justify Respondents in refusing to recognize that
status."
I therefore conclude and find that the Union was on March 2, 1951, and has
been at all times since, the representative of the majority of the employees in
the appropriate unit aforesaid and, by virtue of Section 9 (a) of the Act, has
been and now is the exclusive representative of all the employees in said unit
for purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
In their brief, Respondents argue strongly that an impasse in the bargaining
negotiations was reached on October 4, 1951, when the union representative,
after an unexplained silence of over 5 months, rejected Respondents' suggestions
as to a "tailored" contract, and continued to insist on its standard form, that
this impasse was created by the Union, and has continued since, relieving Re-
spondents of any duty to bargain further. It is clear from the facts found
above that at the first bargaining session of April 24, 1951, the Union presented
its standard form of contract, and Respondents made what amounted to a
counteroffer in the form of suggested changes in provisions of that document,
in order to "tailor" it to meet problems created by the limited size of the unit
represented by the Union, and the relation of that unit to other employees and
circumstances of Respondents' business. At the close of that meeting, the
union agent took Respondents' suggestions under consideration. The Union did
nothing until October 4, 1951, nearly 6 months later, when it merely rejected
the counteroffer and stood pat on its own form of contract; it made no effort
to enter into a discussion of substantive questions of wages, hours, and other
conditions of employment, aside from the form of the contract provisions. Con-
sidering these circumstances alone, I would be inclined to conclude that an im-
passe was created at least on October 4, 1951, by the Union's action, which or-
dinarily would relieve the employer of any further duty to bargain unless and
' N. L. R. B. v. Sanson Hosiery Mills, Inc., supra.
13 The same conclusion is all the more compelling when the three documents are con-
sidered together, for in sum they create a definite doubt as to the exact desires of the
employees during the certification year ; and a doubtful action, much less than the posi-
tive act of filing a decertification petition , should never be allowed to overthrow the formal
certification of employee desires based on a secret -ballot election.
Even if the employees ' final "repudiation" of the Union on November 26 were to be
honored as the last and conclusive expression of their desires , sufficient to overthrow
the certification of March 2 , 1951, this would not constitute a defense for Respondents,
for it can be said that the Union's loss of majority evidenced thereby is attributable to
Respondents ' prior illegal refusal to bargain on October 4, as found herein, and did not
terminate their continuing duty to bargain with the Union. Sue-Ann Manufacturing
Company, 98 NLRB 848. If the court's decision in the Vulcan Forging case were con-
trolling on principle , the above circumstances would make it distinguishable on the
facts, for the court there expressly found that the employees ' single act of repudiation
was unaffected by any prior refusal to bargain or other unfair labor practices.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until the Union broke the impasse by requesting further negotiations." How-
ever, I must also consider Respondents' statement to the Union on October 4 that
they would refuse to bargain with it on the fundamental grounds of lack of
jurisdiction and alleged loss of its majority status, which was notice to the
Union that any further attempts to resume bargaining on terms of a contract
would be futile, for they would always be rejected on these grounds ; and this
was made clear by Respondent's letter of December 3, 1951, in response to the
Union's final request for bargaining on November 30, 1951. This relieved the
Union of any obligation to break the impasse and seek further negotiation. The
only reasonable course remaining to it was to submit the matter to the Board
on charges filed'
I therefore conclude and find from the above facts and circumstances that
Respondents, by their refusal to bargain with the Union on and after October 4,
1951, on the grounds stated above, have violated Section 8 (a) (5) and (1) of
the Act.
D. The August 17, 1951, bonus payment
General Counsel contends that Respondents further violated Section 8 (a) (5)
of the Act by their unilateral payment of a quarterly profit-sharing bonus to
employees in the unit on August 17, 1951. Respondents argue that the letter
evidencing the payment is not relevant to the issues because the complaint does
not cite this action as a violation, and that, even if relevant, the payment was
not a violation of the Act, under all the circumstances. While the issue is not
technically within the scope of the pleadings," it was brought into the case by
General Counsel during his oral argument, by motion to reopen the record to
introduce the bonus letter of August 17, 1951, which was received in evidence by
consent of all parties. General Counsel argued briefly that the bonus payment
was a violation of the Act ; and Respondents answered the argument both in
their oral argument and brief. The issue has thus been fully litigated, and I
consider it before me as though the pleadings had been amended accordingly.
In the letter of August 17, 1951, C. M. Bishop, president of Bishop, announced
to employees of Trade Services in the unit aforesaid the payment of a profit-
sharing bonus for the second quarter of 1951, based on the profitable operations
of Bishop in that quarter. He noted that the problem of whether these employees
were entitled to participate in the bonus was still unsettled, but that, as they had
been advised in a previous letter (not in the record), Bishop was not disposed to
treat them any differently from other employees of Bishop "unless we are forced
to do so by further action of the union." He then said that "there has been to
date no further action by the union, and so we have decided to include all the
employees of Automobile Trade Services, Inc., in this second quarter bonus."
The bonus check was enclosed in the letter, and Bishop also invited them to the
annual company outing on September 8. The letter emphasized that the invita-
tion and bonus payment were "on a temporary and provisional basis and in the
light of what we feel are the larger circumstances which should prevail." In
the concluding paragraph, Bishop said, "Whether or not a bonus can be paid to
you in our next profitable quarter will depend on unresolved circumstances that
may affect our relationship."
14 N. L. R. B. v. Columbian Enameling and Stamping Company, Inc., 306 U. S. 292, 297,
298; N. L. R. B. v. Sands Manuracturing Company, 306, U. S. 332, 344.
16 Cf. The Toledo Desk eC Fixture Co., 75 NLRB 744; Tooleraft Corporation, 92 NLRB 655.
16 Neither the charges nor complaint allege the payment, or any other action before
August 20, 1951, as a violation ; General Counsel did not move at the hearing to amend
the complaint to encompass the bonus payment.
BISHOP, MCCORMICK & BISHOP 1113
I have found above that the parties met in a single bargaining session on April
24, 1951, at which only the technical terms of the Union's standard contract form
were discussed, the employer suggesting certain changes therein for the Union's
consideration, and that for nearly 6 months thereafter the Union made no reply
to Respondents' suggestions, and sought no further bargaining, either on the form
of the contract or on any of the usual subjects of collective bargaining. Its
silence during this period stands unexplained in the record. From the wording
of the August 17 letter, it is inferrible, and I find that: Respondents had in the
past customarily paid quarterly profit-sharing bonuses to all employees, including
those in the unit, whenever the profits of the business warranted such action;
employees in the unit had been included in the first quarterly bonus of 1951, and
had been told they would not be treated differently from other employees (in the
future) "unless we are forced to do so by further action of the union.f17 That
the bonus payment was made on the basis of the Union's failure to resume negoti-
ations after nearly 4 months, is clear from the phrase "There has been to date
no further action by the union, and so we have decided, etc." The question is
whether the Union's silence in these circumstances justifies the employer in
taking the unilateral action in question with respect to employees in the unit.
Respondents argue, in effect, that the payment of a customary quarterly bonus
to employees in the unit on a provisional basis, subject to future bargaining with
the Union, nearly 4 months after the single bargaining meeting of the parties had
resulted in an impasse, and in the absence of an attempt by the Union to break
the impasse, was not a violation of the Act.
The Board has frequently held that a unilateral change in working conditions
of employees in the appropriate unit during the course of negotiations with
their legally constituted bargaining representative is a violation of the Act, on
the theory that such action necessarily has the effect of undermining the repre-
sentative status and prestige of the bargaining agent" As an exception to the
rule, the Board has recognized that such unilateral changes can be made legally
effective where the parties have reached a genuine impasse in the bargaining
negotiations on such changes as a result of exhaustive and bona fide bargaining.'9
However, even in such circumstances , the unilateral change must not be put
into effect in such a way as to disparage the bargaining agent or undermine its
prestige or authority.30 Applying these principles to the facts at bar, I am
constrained to conclude that this case lacks several important circumstances
which under the above authorities would justify Respondents' unilateral action.
In the first place, it can hardly be said that the parties had reached a genuine
impasse in bargaining at the close of the single bargaining session of April 24,
1951, where the only matters discussed were changes in the form of the contract
submitted by the Union, and that subject was left open to be considered by the
Union. There was no discussion whatever of the vital problems of wages, hours,
or other conditions of employment. As proposed by Respondents' letter of
March 26, the meeting was an "initial exploratory effort" to determine whether
a workable agreement could be reached, taking into account the size of Re-
spondents' operations and the limited scope of the unit represented by the Union.
12 The record does not show when the first quarter bonus was paid, but as the August 17
letter refers to a letter sent to employees "at the end of the first quarter ," it was clearly
after the Board's certification of March 2 , 1951 , but before the bargaining session of April
24, 1951.
' Reed and Prince Manufacturing Company, 96 NLRB 850.
19 W. W. Cross d Company, Inc., 77 NLRB 1162; Central Metallic Casket Company, 91
NLRB 572.
20 Ibid. See also Crompton-Highland Mills, Inc., 70 NLRB 206, enforced in 337 U. S. 217.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the failure of the Union to make any reply for months to the Re-
spondents ' suggestions relieved them of the duty to take any further steps in
the bargaining , it did not denote a hardening in the attitudes of the negotiators
such as is customarily recognized as a bargaining impasse, and which might,
under certain circumstances , justify unilateral action by the employer .2' Fur-
thermore , even if there had been a genuine impasse on April 24, 1951, following
"give-and-take" bargaining , it would still not justify unilateral action on a vital
change of compensation which was neither presented to the Union nor discussed
at a bargaining conference .' Nor can the Union 's unexplained failure to resume
negotiations for nearly 6 months justify the employer ' s action ; at most, its long
silence would indicate a delinquency in its duty toward the employees , but any
broader inference is negated by the facts that it resumed its duties by seeking
to reopen negotiations in September , actually meeting with the employer in
October, and filing unfair labor practice charges in November .28 I am therefore
constrained to conclude , and I find, that Respondents ' unilateral payment of a
bonus to employees in the unit on August 17, 1951 , constituted per se a violation
of Section 8 (a) (5) and ( 1) of the Act 24
Upon all of the above facts and circumstances , I conclude and find that
Respondents have since August 17, 1951, failed and refused to bargain in good
faith with the Union as the statutory bargaining representative of all employees
in the unit aforesaid , in violation of Section 8 (a) (5) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in con-
nection with the operations of Respondents 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
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor prac-
tices, I will recommend that Respondents cease and desist therefrom , and take
certain affirmative action, to the extent set forth below, in order to effectuate the
policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
n See cases in footnotes 14 and 19 ,_ above. -
-
as I. B. S Manufacturing Company, et als , 96 NLRB 1263, and cases cited therein. This
is not the type of case where the employer has made a bona fide proposal for a R age in-
crease or other benefit to employees in the course of collective bargaining , which has been
left unaccepted or even rejected by the Union , as in W W Cross & Company, Inc , supra.
And see N. L . R. B v. Andrew Jergens Company, 175 F 2d 130, 136 (C A 9 ) , N L R B.
v. Crompton-Ilighland Mslls, Inc , supra ; Crow-Burlingame Company, 94 NLRB 997, 1004.
23 See Toolcraft Corporation , 92 NLRB 655, 657.
24 The fact that the payment was made on a "temporary and provisional basis " appar-
ently subject to further "action" by the Union , is some indication that the employer was
not at that time attempting to bypass or ignore the Union in favor of individual dealings
with the employees. However , I do not consider that circumstance alone sufficient to over-
come the other circumstances outlined above which support my finding of the violation.
Moreover , the fact that a majority of employees in the unit , on August 20, 1951, 3 days
after the announcement of the bonus and mailing of the checks, signed the first "repudia-
tion" of the Union, warrants the inference that the bonus payment was actually effective
in undermining the Union ' s majority status, thus emphasizing its coercive and illegal
character.
BISHOP , McCORMICK & BISHOP 1115
CONCLUSIONS OF LAW
1. Amalgamated Local Union 250, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All employees of Respondents employed at their New York City wholesale
parts division, including receiving room, storeroom, and shipping room employees,
inside partsmen or countermen, telephone order clerks, the five heads of depart-
ments, and drivers and porters, but excluding office clerical employees, automo-
bile and truck salesmen, outside parts salesmen, executives, and all other super-
visors 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.
3. The above Union was on March 2, 1951, and has been at all times thereafter,
the exclusive representative of all employees in the aforesaid unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on August 17, 1951, and at all times thereafter, to bargain col-
lectively with said Union as the exclusive bargaining representative of all
employees in the appropriate unit aforesaid, Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (5)
of the Act.
5. By their aforesaid refusal to bargain, Respondents have interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed in
Section 7 of the Act, and have thereby engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (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.
[Recommendations omitted from publication in this volume.]
Appendix A
BISHOP, McCORMICK & BISHOP
August 17, 1951
TO ALL EMPLOYEES OF AUTOMOBILE TRADE SEnVICFS, INC :
The operations of Bishop, McCormick & Bishop for the second quarter of
1951 have been sufficiently profitable to justify the distribution to its employees
of a profitsharing bonus.
Whether or not you as an employee of our subsidiary, Automobile Trade
Services, Inc , should participate in this profit-sharing bonus is an unsettled
problem. We said in our letter to you at the end of the first quarter that we
are not disposed to treat you any differently than we treat all the other members
of the Bishop, McCormick & Bishop organization unless we are forced to do so
by further action of the union. There has been to date no further action by
the union and so we have decided to include all the employees of Automobile
Trade Services, Inc. in this second quarter bonus.
We made another decision which we hope will please you. Since there have
been no further moves to separate you from us we want to invite the employees
of Automobile Trade Services, Inc. to attend the annual Bishop, McCormick
& Bishop outing on September 8th at Timber Point.
This is a formal invitation to you to come to the outing, and we are enclosing
herewith our check to your order for your share in the quarterly profit-sharing
bonus of Bishop, McCormick & Bishop.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We know you will clearly understand that we are including you in the profit-
sharing pool and inviting you to the annual outing on a temporary and provi-
sional basis and in the light of what we feel are the larger circumstances which
should prevail.
Whether or not a bonus can be paid to you in our next profitable quarter
will depend on unresolved circumstances that may affect our relationship.
So we say to you again, we hope that you will be inclined to sympathetically
endeavor to understand our problems as we are trying to understand yours.
Very truly yours,
CMB/a
Encl.
(signed) C. M. BISHOP, President
A. 0. SMITH CORPORATION, AIR FRAME COMPONENT DIVISION and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., PETITIONER
A. 0. SMITH CORPORATION, AIR FRAME COMPONENT DIVISION and
DISTRICT No. 6, INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F.
OF L., PETITIONER. Cases Nos. 3-RC-1087 and 3-RC-1090. Feb-
ruary 5, 1953
Decision and Direction of Election
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Hymen Dishner, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Styles and Peterson].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved clair:I to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. Both Petitioners seek a unit of production and maintenance em-
ployees at the Employer's plant. The Employer agrees that such
a unit is appropriate but, contrary to the Petitioners, would exclude
from the unit all salaried plant clericals,' contending that their inter-
ests, employee benefits, and working conditions differ from those of
' There are also some hourly paid plant clericals , who all parties agree should be included
in the unit.
102 NLRB No. 96.