Friendly Ford

National Labor Relations Board - Board Decisions

May 22, 1970

182 N.L.R.B. 646 (N.L.R.B. 1970)

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Ford Sales, Inc , d/b/a Friendly Ford (formerly
d/b/a Paul Johnson Ford ) and International Association
of Machinists and Aerospace Workers, AFL-CIO, Dis
trict Lodge No 87 Case 20-CA-5585
May 22, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by the International Association
of Machinists and Aerospace Workers, AFL-CIO, Dis
trict Lodge No 87, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 20, issued a complaint
dated June 4, 1969, against Valley Ford Sales, Inc ,
d/b/a Friendly Ford herein called the Respondent, alleg-
ing that the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended Copies of the charge,
complaint, and notice of hearing were duly served upon
the Respondent
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that on February 12, 1969,
a majority of the employees, in a unit found appropriate
by the Acting Regional Director for Region 20 of the
Board,' in a secret-ballot election conducted under the
supervision of the Regional Director for Region 20,
of the National Labor Relations Board, designated and
selected the Union as their representative for the purpos-
es of collective bargaining, and on February 20, 1969,
said Regional Director certified the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in said unit The complaint further alleges that
since on or about May 6, 1969, and at all times thereafter,
the Respondent did refuse, and has continued to refuse,
to bargain collectively with the Union as the exclusive
collective-bargaining representative of its employees On
or about June 7, 1969, the Respondent filed its answer,
admitting in part, and denying in part, the allegations
of the complaint, presenting an affirmative defense, and
requesting that it be found not to have violated the
Act
On August 12, 1969, the General Counsel filed with
the Board a Motion for Summary Judgment alleging
that there are no factual issues which would warrant
a hearing Thereafter, on August 15, 1969, the Board
issued an order transferring proceeding to the Board
and notice to show cause On August 19, 1969, the
Respondent filed its opposition to motion for summary
judgment
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-member panel
Upon the entire record in this case, the Board makes
the following
' Decision and Direction of Election issued January 3 1969 in Case
20-RC-8363 (not printed in NLRB volumes)
Rulings on the Motion for Summary Judgment
Pursuant to a petition filed on September 25, 1968,
by the Machinists, seeking to represent certain employ-
ees of the Respondent, a hearing was held on October
16, 1968 On January 3, 1969, the Acting Regional
Director for Region 20 issued a Decision and Direction
of Election finding the following unit of employees
appropriate and directing an election
All new car, used car, fleet and truck department
salesmen employed at the Employer's Fresno, Cali-
fornia operations, excluding all other employees,
guards and supervisors as defined in the Act
The Respondent's request for review of this decision
was denied by telegraphic order of the Board on January
30,1969
On February 12, 1969, pursuant to the Decision and
Direction of Election, an election was held among the
employees in the unit described above, to determine
whether or not they desired to be represented for collec-
tive-bargaining purposes by International Association
of Machinists and Aerospace Workers, AFL-CIO, Dis-
tract Lodge No 87 The tally of ballots showed that
11 votes were cast for the Union, 4 against the Union,
and 5 were challenged Thereafter, a certification of
representative was issued to the Union on February
20, 1969
By a letter dated April 17, 1969, the Union requested
the Respondent to bargain collectively The Respondent
refused by a letter dated May 6, 1969 On May 13,
1969, the Union filed the charge upon which the com
plaint herein was predicated
In its memorandum of points and authorities in opposi-
tion to motion for summary judgment, the Respondent
contends in substance that (1) the petition filed in Case
20-RC-8363 should have been dismissed on the ground
that it was not signed by an authorized representative
of the Petitioner, (2) the Regional Director erred in
failing to dismiss the petition for failure to encompass
the appropriate bargaining unit, (3) the conduct of the
hearing resulted in prejudicial error by virtue of the
Hearing Officer's refusal to strike testimony regarding
the contents of rules of the Petitioner, such testimony
not being the best evidence, and (4) the Petitioner is
creating the possibility of labor strife by splintering
the bargaining units
Respondent's contentions seek to relitigate conten-
tions made prior to and rejected in the Regional
Director's decision in Case 20-RC-83632 and in the
Board's denial of Respondent's request for review of
that decision Inasmuch as Respondent has already liti-
gated such contentions, it has not raised any issue
which is properly triable in this proceeding 3
' We have again examined the Decision and Direction of Election
in Case 20-RC-8363 and made an independent review of the record
of the hearing in the representation case and conclude that the Regional
Director s findings were correct
3 E Z Davies Chevrolet 161 NLRB 1380 enfd 395 F 2d 191 (C A 9)
182 NLRB No 94
FRIENDLY FORD 647
As all material issues have been previously decided
by the Board, or admitted by Respondent's answer
to the complaint, there are no matters requiring a hearing
before a Trial Examiner Accordingly, the General Coun-
sel's Motion for Summary Judgment is granted On
the basis of the record before it, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is and at all times material herein has
been a California corporation with an office and place
of business located in Fresno, California, where it has
been engaged in the retail sale of new and used automo-
biles During the past year, a representative period,
Respondent, in the course and conduct of its business
operations, made retail sales of goods and services valued
in excess of $500,000 During the same period, Respond-
ent purchased and received goods and materials valued
in excess of $50,000 from Ford Motor Company, San
Jose, California, Division, which company purchased
and received goods and materials valued in excess of
$50,000 directly from outside the State of California
Respondent admits, and we find, that Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act
representative of the employees in said unit and the
Union continues to be such representative
B The Request To Bargain and Respondent's Refusal
Commencing on or about April 17, 1969, and continu
ing to date, the Union has requested and is requesting
the Respondent to bargain collectively with the Union
as the exclusive collective-bargaining representative of
the employees in the above-described unit Since May
6, 1969, and continuing to date, the Respondent has
refused and continues to refuse to bargain collectively
with the Union as exclusive collective-bargaining repre-
sentative of all employees in said unit
Accordingly, we find that the Union was duly certified
as the collective-bargaining representative of the employ-
ees of the Respondent in the appropriate unit described
above and that the Union at all times since February
20, 1969, has been and now is the exclusive bargaining
representative of all the employees in the aforesaid
unit, within the meaning of Section 9(a) of the Act
We further find that the Respondent has since May
6, 1969, refused to bargain collectively with the Union
as the exclusive bargaining representative of its employ-
ees in the appropriate unit By such refusal the Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act
II THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No 87 is, and at
all times material herein has been , a labor organization
within the meaning of Section 2 (5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
I The unit
The following employees constitute a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act
All new car, used car, fleet and truck department
salesmen employed at the Employer's Fresno, Cali-
fornia operations, excluding all other employees,
guards and supervisors as defined in the Act
2 The certification
On February 12, 1969, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Director
for Region 20, designated the Union as their representa-
tve for the purposes of collectve bargaining with the
Respondent, and on February 20, 1969, the Regional
Director certified the Union as the collective-bargaining
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
as described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom and, upon request, bargain collec-
tively with the Union as the exclusive representative
of all employees in the appropriate unit, and, if an
understanding is reached, embody such understanding
in a signed agreement
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial year of certification as beginning
on the date the Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit See Mar-Jac
Poultry Company, Inc, 136 NLRB 785, Commerce Com-
pany d/bl a Lamar Hotel, 140 NLRB 226, 229, enfd
328 F 2d 600 (C A 5), cert denied 379 U S 817, Burnett
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction Company, 149 NLRB 1419 , 1421, enfd.
350 F . 2d 57 (C. A. 10).
CONCLUSIONS OF LAW
1. Valley Ford Sales, Inc., d/b/a Friendly Ford (for-
merly d/b/a Paul Johnson Ford), is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 87,
is a labor organization within the meaning of Section
2(5) of the Act.
3. The following unit is an appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act:
All new car, used car, fleet and truck department
salesmen employed at the Employer's Fresno, Cali-
fornia operations, excluding all other employees,
guards and supervisors as defined in the Act.
4. Since February 20, 1969, the Union has been the
exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. By refusing on or about May 6, 1969, and at
all times thereafter, to bargain collectively with the
Union as the exclusive bargaining representative of all
the employees in the appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, the Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Section
7 of the Act, and has thereby engaged in and is engaging
in unfair 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 Sec-
tion 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent , Valley Ford
Sales, Inc., d/b/a Friendly Ford (formerly d/b/a Paul
Johnson Ford), Fresno, California, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment
with the International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 87,
as the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All new car, used car, fleet and truck department
salesmen employed at the Employer's Fresno, Cali-
fornia operations, excluding all other employees,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all
employees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its place of business in Fresno, California,
copies of the attached notice marked "Appendix. "4
Copies of said notice, on forms provided by the Regional
Director for Region 20 shall, after being duly signed
by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify said Regional Director for Region 20, in
writing, within 10 days from the date of this Decision
and Order, what steps Respondent has taken to comply
herewith.
" In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
the International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No.
87, as the exclusive representative of the employees
in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of
all our employees in the bargaining unit described
below with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining
unit is:
All new car, used car, fleet and truck depart-
ment salesmen employed at the Employer's
Dated
FRIENDLY FORD 649
Fresno, California operations, excluding all
other employees, guards and supervisors as
defined in the Act.
VALLEY FORD SALES,
INC.,
D/B/A FRIENDLY FORD
'(FORMERLY
D/B/A PAUL JOHNSON
FORD)
By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material. ,
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 13050 Federal Building, Box 36047, 450 Golden
Gate Avenue, San Francisco, California 94102, Tele-
phone 415-556-3197.
I