Brooks Biddle Chevrolet Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 495 (N.L.R.B. 1969)

BROOKS BIDDLE CHEVROLET CO.
Brooks Biddle Chevrolet Company and Automobile
Drivers and Demonstrators Union, Local 882,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Independent. Case
19-CA-4159
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING , BROWN , AND JENKINS
On April 25, 1969, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision.
Thereafter , the Respondent filed exceptions to the
Decision and a brief in support thereof.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended , the National Labor
Relations Board has delegated its powers in
connection with this case to a three -member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent , Brooks Biddle
Chevrolet Company, Seattle, Washington, its
officers , agents, successors , and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
As a valid collective-bargaining agreement was in effect at the time of
the alleged refusal to bargain in this case, it is unnecessary to pass upon
the Union's representative status herein . See Shamrock Dairy, Inc, 119
NLRB 998, 1002.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
MARTIN S . BENNETT, Trial Examiner : This matter was
heard at Seattle , Washington on February 27, 1969. The
complaint, issued December 17 and based upon a charge
filed October 11, 1968 , by Automobile Drivers and
Demonstrators Union , Local 882, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Independent,
495
herein called the Union , alleges that Respondent , Brooks
Biddle Chevrolet Company , had engaged in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of
the Act . Briefs have been submitted by the General
Counsel and Respondent.
Upon the entire record in the case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Brooks Biddle Chevrolet Company is a Washington
corporation maintaining its principal office and place of
business in Seattle , Washington where it is engaged in the
retail sale and servicing of new and used automobiles. It
annually enjoys a gross volume of business in excess of
$500,000 and purchases goods valued in excess of $50,000
from suppliers located outside the State of Washington. I
find that the operations of Respondent affect commerce
within the meaning of Section 2 (6) and(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automobile Drivers and Demonstrators Union, Local
882, affiliated with international Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issue
For some years, the Union was the representative of the
new and used car salesmen of Hasbrouck Chevrolet
Company of Seattle , Washington . In February 1966,
Respondent purchased this automobile dealership and the
name was duly changed . There was no change in the
nature of the business; the same sales facilities were used;
and the same personnel were retained . These sales
employees had been covered by a union security labor
agreement with the Union, renewable annually in May,
which , inter alia , obligated Hasbrouck Chevrolet
Company to make payments into the Western Conference
of Teamsters Pension Trust Fund . There were
approximately 7 employees in the unit as of February
1966, all of whom belonged to the Union.
The General Counsel contends that Respondent duly
acknowledged to the Union in February that it was bound
by this agreement; that subsequent to February
Respondent made contributions to the Pension Trust
Fund ; that by adopting this labor contract and making
these contributions Respondent recognized the Union; and
that by unilaterally stopping these payments on July 10,
1968, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and ( 1) of the Act.
Respondent in effect contends that it has not honored this
contract and that it is under no obligation to bargain with
the Union.
B. The Refusal To Bargain
1. Appropriate unit
The complaint alleges, Respondent admits and I find
that all new and used car salesmen employed by
Respondent , excluding office clerical and professional
177 NLRB No. 78
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , guards and supervisors , constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. Recognition and majority representation
Respondent admits that when it took over the business
in February of 1966 a contract between the Union and its
predecessor covered these employees. As noted , this was a
contract which automatically , renewed itself in May for a
year and from year to' year thereafter absent 60 days
advance notice to terminate . This was a union shop
contract and all seven in the unit were union members.
Secretary-treasurer James Clark of the Union has
known Biddle for many years . He testified that upon
learning of the sale of the business he telephoned Biddle
and pointed out that there was an existing contract with
the Union . Biddle replied , "Yes, I know there is one in
effect . I fully intend to live up to this contract as it has
been previously." Biddle added that he was too busy at
the moment to sign , but that he certainly would live up to
it. Clark placed this in February or March.
Biddle in essence did not deny this . He testified that
Clark called him , mentioned the contract and asked if he
contemplated any changes. Biddle replied that he did not,
and that he would use the same personnel . He admitted
telling Clark that he would make payments , as required
by the contract , to the Pension Trust Fund and also retain
the existing commission structure provided in the contract.
Biddle claimed also that Clark mentioned a contract and
he replied that he had not signed any. Biddle later testified
that he agreed to make pension payments for those then
on the sales force. As noted, this was a union shop and all
seven employees had joined.
Respondent has placed reliance on a letter sent to it by
Clark on March 3 , 1966, together with an enclosure for
signature by Respondent accepting the existing contract in
its entirety. Respondent has since either refused to sign or
has avoided signing this document.
Clark testified that he believed this letter was sent to
Biddle prior to that telephone conversation described
above. The context of the letter supports Clark. It
comments on the "good news" that Biddle was the new
operator of the business , wished him prosperity and
enclosed the short-form contract. The letter is manifestly
consistent with an initial contact.
Biddle ' s testimony was marked by vagueness in certain
areas and his testimony that he agreed to continue the
existing pension payments and rates of commission
supports Clark. Clark is also corroborated here by
part-time business agent Lauren Gallagher, who testified
that he visited Biddle sometime between February and
April and expressed concern whether the men were still
enjoying the benefits of the contract. Biddle "assured me
it was, it would go on the same as it had always been and
there would be no changes." Biddle admitted that
Gallagher made visits concerning dues delinquencies, but
claimed that he never discussed the contract . He admitted,
however, that he never told Gallagher that he was not
bound by the contract . Moreover , as will appear , Biddle is
refuted by his subsequent conduct. I therefore credit
Gallagher and Clark.
I find that in March 1966 Respondent agreed to honor
and adopted and ratified the existing contract and its
provisions . I further find that Respondent did not
challenge the union majority in any way . Indeed , it could
not, because it well knew that its sales employees were
union members . And, as appears below, it proceeded to
make payments for all to the Pension Trust Fund.
I find that in February 1966 the Union was the
majority representative of the employees in the
above-described appropriate unit within the meaning of
Section 9(a) of the Act. And, for reasons appearing below,
I find that it was said representative thereafter at all times
material herein.
3. Application of the contract
As stated, Respondent did much more than agree to
honor the contract because it actually applied the contract
to its employees in several respects.
Turning initially to the Pension Trust Fund to which
payments have been made under the contract, the record
discloses the following. Payments are due on the 10th of
the month following each quarter. That for January 10,
1966, reflects payments for seven employees, the total
complement at that time. That for April 10, 1966, also
discloses payments for seven employees, including a new
hire, J. E. Sherwood.' That for July 10, 1966, contains
nine names with payments for six but not for three new
hires, Anway, Byers and Nordness for whom payments
were not due.' That for October 10, reflects payments for
the nine named in the previous quarter. The remittance
for January 10, 1967, lists seven employees and includes a
payment for Dewey Thompson who was hired during the
previous quarter. That for April 10, 1967, includes
payments for the seven reflected in the previous quarter.
Turning to the payment for January 10, 1968, this
reflects payments for six employees, including G. R.
Lyons who was hired on December 1, 1967. That for
April 10, 1968, reflects payments for six employees and
also indicates that five of the six, excluding R. F. Rice,
were terminated by Respondent between February 15 and
March 15. That for July 10, 1968, reflects payments only
for Rice.
The ostensible solitude of Rice is explained by the fact
that Respondent made new hires to replace those
terminated in 1968 but chose not to apply the union
security clause to them. Similarly, it did not make
payments for these hires to the Pension Trust Fund.
Biddle explained Rice's solitude as follows. The Pension
Trust Fund reports for the third and fourth quarters of
1967 reflect six names. However, there were three new
hires during these quarters whose names do not appear
thereon. In the first and second quarters of 1968, hiring
was expanded and the number of nonunion men exceeded
the union men. Biddle conceded that he did not advise the
hires of the union security clause as the contract required
him to do and that he did not tell the men they were
required to join the Union.
To sum up, Respondent applied the contract and made
payments to the Pension Trust Fund through the May
1966 and May 1967 renewals of the contract. Then,
during the last year of the May 1967-May 1968 renewal it
started to violate the contract, although it did pay on a
selective basis, as stated, until the instant charge was filed.
I believe this is a clear case of estoppel because
Respondent is in the position of pleading its own breach
of the contract it has long honored in order to justify its
position herein.
Biddle also admitted that he had honored the minimum
commission sales price in the contract during 1966 and
1967, but had departed therefrom in March of 1968.'
'One of the earlier seven left during the first quarter.
'Payments are not due until after 80 hours of employment
'While the charge was not filed until October 11, 1968, 1 find that the
continued failure to make payments on additional sales cures any statute
BROOKS BIDDLE CHEVROLET CO.
Respondent has adduced evidence that it operated with
longer hours than those called for in the contract. But
Secretary-treasurer Clark uncontrovertedly testified that
during 1967 Biddle had called him about the problem,
pointing out that his competitors were doing so. Clark
informed him that he was authorized to meet these hours
of his surrounding competitors.
There is evidence that Respondent did assist the Union
in policing the union security clause. Thus, on August 21,
1967, Business Agent Gallagher wrote to Biddle and
demanded the discharge of employees Thompson and
Lyons if dues arrears were not paid. He made a similar
request on November 27 concerning employee Sleeman.
Biddle testified that he turned these letters over to the
concerned individuals and merely stated "Read this." He
did not terminate the men, but this is explained by
evidence that the men came in and paid at least part of
their arrears. Thus, the union records disclose that
Thompson made payments on September 20 and October
31, 1967, that Lyons made payments on September 11
and October 19 and that Sleeman promptly made a
payment on December 1, 1967.
There was also some other contact between the parties
in 1968. According to the uncontroverted testimony of
Clark, he telephoned Biddle in March and pointed out
that some new hires had not paid their dues. Biddle said
that he would take care of this, claimed that he was under
business pressure and asked for a meeting about the
contract. Such a meeting was held on May 6. Clark
brought up the dues delinquencies and Biddle claimed that
business was bad.' Clark, in a reference to the May
renewal date of the contract, claimed that nothing could
be done immediately but that this would be taken into
consideration at the next negotiations. At this point,
Biddle stated that "He wasn't sure he was covered by the
contract."
As noted, the Pension Trust Fund transmittal on April
10, 1968, reflected the names of six employees. That for
July 10, showed only one, Rice. Clark promptly
telephoned Biddle and asked for an explanation. Biddle
replied only that he needed relief under the contract.
Biddle "gave me his word he was going to live up to the
agreement." The payment for October 10 again showed
only the name of Rice, ignoring the other sales personnel
whose precise number at the time is not disclosed, and this
led to the filing of the instant charge.
4. Concluding findings
To sum up, Respondent permitted the contract to
renew itself in May 1966, 1967, and 1968, not availing
itself of the opportunity to terminate or modify. And it
has substantially complied with the contract throughout
the renewals. It has obtained the benefits of union
representation of its employees in a highly organized area,
but has complained of the burdens thereunder.
Respondent was in the position of having to fish or cut
bait and it has attempted to do both. I find that it
recognized the Union and performed under the contract in
substantial respects, as detailed above. It then without
of limitations problem . Hence no finding of a violation rests on conduct
exclusively beyond the 6-month period . Local Union No. 1424 v. N.L.R.B.
362 U S. 411.
At the hearing , Biddle took a very different position , attempting to
justify his hiring of additional personnel in the first and second quarters of
1968 because business was expanding.
497
cause repudiated the Union, offering as a defense its own
breach of the contract in failing to apply the union
security clause; this it may not do. While the Union may
have been lax in enforcing the contract, the record will not
support a finding, as urged by Respondent, that it has
abandoned the contract or abdicated. Indeed, as set forth,
the evidence preponderates otherwise. See, e.g., Crane &
Breed Casket Co., 175 NLRB No. 35.
Respondent has also relied upon the turnover in
personnel. But the record is silent as to the union status of
the new hires and, more significantly, the role of the
Union here stems not from the union shop clause but
rather from its status as the recognized representative. See
Franks Bros. Co. v. N.L.R.B., 321 U.S. 702; General
Teamsters Local 782 Blue Cab Co. v. N.L.R.B., 373 F.2d
661; and Light Boat Storage, Inc., 153 NLRB 1209, enfd.
373 F.2d 762 (C.A. 5). Respondent likewise argues that it
may now be compelled to bargain with a minority
representative. The simple answer is that there is
precedent for this in appropriate contexts. See, e.g.,
Brooks v. N.L.R.B., 348 U.S. 96.
I find that by the above-specified conduct Respondent
has refused to bargain and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(5) of
the Act. I further find that Respondent has thereby
interfered with, restrained and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the
Act, thereby violating Section 8(a)(1) thereof.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has refused to
bargain with the Union as the duly designated
representative of its employees in an appropriate unit. I
shall therefore recommend that Respondent prospectively
honor the 1968 agreement between it and the Union,
including enforcement of the union security provision
upon appropriate demand, and that it pay to the
appropriate source any fringe benefits provided for
therein. I shall also recommend that it make the required
payments for each employee to the Western Conference of
Teamsters Pension Trust Fund from July 10, 1968, on.
See N.L.R.B. v. Strong Roofing & Insulating Co., 393
U.S. 357. The intended thrust of this remedy is that
compliance is to run until the contract may be lawfully
terminated.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Brooks Biddle Chevrolet Company is an employer
within the meaning of Section 2(2) of the Act.
2. Automobile Drivers and Demonstrators Union,
Local 882, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent , is a labor organization within the
meaning of Section 2(5) of the Act.
3. All new and used car salesmen employed by
Respondent , excluding office clerical and professional
employees , guards and supervisors, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Automobile Drivers and Demonstrators Union,
Local 882, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, has been at all times since
February 1966, and now is, the exclusive representative of
all employees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By refusing on and after July 10, 1968, to bargain
with the Union as the exclusive representative of its
employees in the aforesaid appropriate unit , Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
6. By the foregoing conduct, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
altered, defaced, or covered by any other material.
(3) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
'In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event the Board's Order is enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
'in the event this Recommended Order is adopted by the Board, this
provision shall be modified to read- "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Brooks Biddle
Chevrolet Company, Seattle, Washington, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize Automobile Drivers and
Demonstrators Union, Local 882, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent as
the representative of its employees in the above-described
appropriate unit and refusing to honor the 1966 contract
with said Union as subsequently renewed in 1968.
(b) Refusing on appropriate application by said Union
to apply the union security language of said contract to
any delinquencies arising subsequent to the date of this
decision.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor
organization, to bargain collectively through
representatives of thier own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the extent
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Forthwith honor and apply the 1966 agreement as
renewed in 1968 with the above-named union.
(b) Make all payments to the Western Conference of
Teamsters Pension Trust Fund due on and after July 10,
1968.
(c) Pay to the appropriate source any other fringe
benefits provided for in the above-described contract.
(d) Post at its offices at Seattle, Washington, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 19, shall, after being duly signed by Respondent,
be posted immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to recognize Automobile
Drivers and Demonstrators Union, Local 882, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent as the representative of our new and used
car salesmen, excluding office clerical and
professional employees, guards and supervisors.
WE WILL, upon appropriate application, honor and
apply the 1966 contract, as later renewed in 1968, with
the above-named labor organization , including its union
security language for any delinquencies arising
hereinafter.
WE WILL make all payments due to the Western
Conference of Teamsters Pension Trust Fund due on
and after July 10, 1968.
WE WILL make whole the appropriate sources for any
other unpaid fringe benefits provided in the above
contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the right to self-organization , to form labor
organizations , to join or assist the above-named or any
other labor organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the
extent such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment.
Dated By
BROOKS BIDDLE CHEVROLET
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
BROOKS BIDDLE CHEVROLET CO. 499
or compliance with its provisions , they may communicate Building, 10th Floor 1511 Third Avenue, Seattle,
directly with the Board ' s Regional Office , Republic Washington 98101, Telephone 583-7473.