Goldsmith-Louison Cadillac Corp.

National Labor Relations Board - Board Decisions

Aug 22, 1990

299 N.L.R.B. 520 (N.L.R.B. 1990)

520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Goldsmith-Louison Cadillac Corp., Goldsmith
Motors Corp., a single employer and Local
Union No. 868, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.
Case 29-CA-13885
August 22, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 22, 1990, Administrative Law Judge
Raymond P Green issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions 1 and to adopt the recommended
Order 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Goldsmith-
Lomson Cadillac Corp, 316 North Franklin Street,
Hempstead, New York, and Goldsmith Motors,
138-49 Hillside Avenue, Jamaica, New York, their
officers, agents, successors, and assigns, shall take
the action set forth in the Order
1 We find no merit in the Respondent's contention that the judge's de-
cision contradicts the Regional Director's prior determination that the
employees at the Respondents' Hempstead facility constituted a separate
appropriate bargaining unit and not an accretion to the unit at the Re-
spondents' Jamaica facility See Case 29-UC-358 There is nothing incon-
sistent in the judge's conclusion that the Union, having subsequently ob-
tained the support of a majority of the employees in the Hempstead unit
found by the Regional Director to be an appropriate unit, is entitled to be
recognized by the Respondents as the representative of those employees
See The Arundel Corp, 252 NLRB 397, 399 fn 7 (1980)
2 In the absence of exceptions to the finding of no violation in the Re-
spondent's failure to extend the Jamaica contract to the Hempstead em-
ployees, we decline to find that violation or to order the Respondents to
entend the Jamaica contract to the Hempstead employees
April M Wexler, Esq , for the General Counsel
Perry Heiclecker Esq (Marshall Miller Associates), for the
Respondent
Irving T Bush, Esq , for the Union
DECISION
STATEMENT OF THE CASE
RAYMOND P GREEN, Administrative Law Judge This
case was tried in Brooklyn, New York, on January 22,
1990 The charge was filed on January 19, 1989, and was
299 NLRB No 74
amended on February 22, 1989 1 The complaint issued
on February 28, 1989, and alleged m substance that the
Employer refused to recognize and bargain with the
Union at a newly acquired facility after the Union had
obtained majority status among the employees
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed, I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondents admit and I fmd that they are em-
ployers engaged in commerce withm the meaning of
Section 2(2), (6), and (7) of the Act It also is admitted
and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
Goldsmith Motors Corp is an automobile dealership
located in Jamaica, New York For some time the seven
salesmen of this Company have been represented for col-
lective-bargaining purposes by the Union The most
recent labor contract covering these employees is effec-
tive from February 1, 1987, through January 31, 1990
This contract has what is generally termed an "after ac-
quired" clause which reads
This Agreement shall cover, in addition to premises
presently occupied, all future locations within the
jurisdiction of the Union which the Employer may
purchase, lease or otherwise operate for the pur-
poses of the sale of new and used cars during the
term of this Agreement, mcludmg all locations op-
erated as a result of expansion or change, to the
extent permitted and recognized by the National
Labor Relations Board
In or about November 1986, the two shareholders of
Goldsmith Motors Corp (Joel Goldsmith and Anne S
Louisan) formed Goldsmith-Louison Cadillac Corp
(They each own 50 percent of the new corporation )2
Thereafter, in February 1988 this company commenced
operating a Cadillac dealership in Hempstead, New
York This facility is about 15 to 20 miles from the Ja-
maica facility of Goldsmith Motors and there does not
appear to be any interchange of nonmanagerial employ-
ees from one to the other
In or about September 1988 the Union demanded rec-
ognition as the bargaining agent for the salesmen of
Goldsmith-Lomson contending that the new facility con-
stituted an "accretion" to the existing contractual bar-
gaining unit in Jamaica, New York
In response, the Employer, on September 9, 1988, filed
a unit clarification petition in 29-UC-358 On January 5,
1989, the Regional Director of Region 29 issued a deci-
1 All dates are in 1989 unless otherwise indicated
2 At Goldsmith Motors, Joel Goldsmith is the president and Anne
Loulson is the secretary-treasurer At Goldsmith-Lowson their positions
are reversed At both locations Goldsmith and Loulson are responsible
for formulating labor relations and personnel policies
GOLDSMITH-LOIJISON CADILLAC CORP 521
sion in the UC case, concluding that despite the com-
monalty of ownership, the unit of employees at the
Hempstead facility constituted a separate appropriate
bargaining unit and therefore was not an accretion to the
bargaining unit covered by the collective-bargaining
agreement between the Union and Goldsmith Motors
That decision was thereafter affirmed by the Board on
April 14, 1989
In the meantime on September 26, 1988, the Union
filed an unfair labor practice charge against Goldsmith
Motors and Goldsmith-Louison alleging that their failure
to recognize the Union as the representative of the
Hempstead sales employees was a violation of Section
8(a)(5) of the Act Since that charge (in Case 29-CA-
13705) is not part of the present proceedings, I infer that
the Regional Director concluded it had no merit because
the Union, at the time, had no evidence of majority sup-
port amongst the Hempstead employees
In December 1988, Michael Vega, one of the salesmen
at Goldsmith-Lomson, spoke to a union shop steward
who was employed at another car dealership across the
street As a consequence of that conversation, Vega
signed a union membership card on December 22 and so-
licited the other salesman to sign such cards on that same
date In this regard, Vega testified that he handed out
these cards to the other salesmen in the showroom He
further testified that some of the employees signed the
cards in his presence and that in other instances, the em-
ployees handed their signed cards back to him either on
December 22 or 23 Vega then delivered the cards to the
Union
The record indicates that at the time the cards were
signed, there were six persons employed by Goldsmith-
Louison as new-and used-car salesmen Of the six, five
signed union cards The cards m question are single pur-
pose authorization cards and no statements were made to
the signers that the cards would only be used for the
purpose of obtaining an NLRB election There also was
no evidence to suggest that any coercion or other undue
influence was used to obtain these cards 3 In pertinent
part, the cards read
I, the undersigned hereby apply for Admission to
Membership in Local 868 of the International
Brotherhood of Teamsters and voluntarily
choose and designate it as my representative for
purposes of collective bargaining hereby revoking
any contrary designation If admitted to member-
ship, I agree to abide by the Constitution of the
International as well as the Local Constitution and
By-Laws
In short, the General Counsel has established by a pre-
ponderance of the evidence that by December 23, 1989,
3 The employer in an attempt to challenge the authorization card of
Eugene Ackerfeld produced two forms signed by Ackerfeld dunng his
employment In reviewing these documents, particularly comparing the
authorization card with the tax withholding form, I am not persuaded
that the signatures are different Indeed, without pretending to any par-
ticular expertise of handwntmg analysis, I would say that the signature
on the union authorization card is the same as the signature on the with-
holding form
the Union represented a majority of the salesmen at
Goldsmith-Louison
By mailgram dated December 27 1988, the Union ad-
vised Goldsmith-Lomson that a majority of the Hemp-
stead sales employees had signed union cards It went on
to request that the Employer "provide them with all the
substantive working conditions provided in our current
collective bargaining agreement"
On January 4, 1989, the Union sent another mailgram
to "Goldsmith Cadillac Hempstead" reading in part
In response to our mailgram to you, we have
been informed that you are applying the Jamaica lo-
cation contract to your Hempstead location It is
the customary and usual practice in situations such
as this that any prior better conditions not in effect
in Hempstead will continue
Since we advised you that we have been desig-
nated by a majority of the sales persons at the
Hempstead location as their collective bargaining
representative we at this time demand that none of
the existing better conditions be changed without
consultation with this organization
On January 5, 1989, the Employer's counsel replied as
follows
Goldsmith-Louison Cadillac respectfully declines to
recognize Local 868 I B T, or any other labor orga-
nization, as the exclusive bargaining representative
of the new and used car salesmen employed at the
Hempstead facility In the event Local 868 wishes
to pursue its claim for representation rights, It will
have to do so using the accepted procedures of the
National Labor Relations Board
On January 11, 1989, the Employer's counsel sent an-
other letter to the Union, responding to the two afore-
mentioned mailgrams This read in pertinent part
First, we do not recognize Local 868 as the col-
lective bargaining representative of the salesmen at
Goldsmith-Louison Cadillac's Hempstead facility
This was made clear to you in a letter which was
sent to you on January 5, 1989 which declined
to grant your union recognition Goldsmith-
Lowson still does not recognize Local 868 and, ac-
cordingly, you have no legal right to discuss the
substantive terms and conditions of employment of
the salesmen with the company
Second, we have never applied the substantive
terms and conditions of Goldsmith Motors' collec-
tive bargaining agreement for the salesmen at its Ja-
maica facility to Goldsmith-Louison's salesmen at
the Hempstead facility Your assertion that the Ja-
maica contract is being applied at Hempstead is
simply wrong
On January 26, 1989, the Union sent the following
letter to Joel Goldsmith in care of Goldsmith-Louison
Cadillac Corp
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With respect to our former demand we have re-
quested the National Labor Relations Board to in-
vestigate the authenticity of the designation cards
signed by your employees. If you would care to
designate. some impartial person to examine the•
cards, we will cooperate with the understanding
that whatever the examination discloses will be held
completely confidential except the statement that
the cards are • or not authentic. The number and
names of any cards will not be revealed—except
that the person examining the cards may indicate
that the number of signed cards represent a majori-
ty of the employees.
It is alleged in the complaint and conceded in the
answer that since January 26, 1989, the Respondents
have refused to recognize the Union as the bargaining
representative of the sales employees employed by Gold-
smith-Louison and have refused to consent to have the
Union's majority status based on authorization cards au-
thenticated by a third party.
III. ANALYSIS. ,
. In my opinion, Kroger Co., 219 NLRB 388 (1975), is
dispositive of this case. In Kroger the Board held that
"additional store clauses," are not be valid insofar as a
union asserts its right to represent employees of an addi-
tional facility where the new facility would not consti-
tute ' an "accretion" to an existing bargaining unit and
where the union has not shown that it represents a ma-
jority of the new facilities' employees. However, the
Board also held that such clauses may properly be inter-
preted to constitute a waiver of an employer's right to
demand an election in circumstances where the union has
obtained majority status in the new facility. As stated by
the Board:
As we have interpreted them, these clauses are
contractual commitments by the Employer to forgo
its right to resort to the use of the Board's election
process in determining the Union's representation
status in these new stores. To permit the Employer
to claim the very right which it has forgone, per-
haps in return for concessions in other areas, would
violate the basic national labor policy requiring the
Board to respect the integrity of collective-bargain-
ing agreements. . .The Board has held that an em-
ployer may agree in advance of a card count to rec-
ognize a union on the basis of a card majority and
we can perceive of no reason why it may not con-
tract with the union to do so in advance of the time
the union has commenced organization.4
The Union in the present case obtained in December
1989 authorization cards from a majority of the sales em-
ployees at the Employer's new dealership. Also, the Em-
ployer had agreed in advance to recognize the Union at
any new facility to the extent permitted by the National
Labor Relations Board. As this is interpreted to mean
that the Employer agreed in advance to recognize the
4 See also Alpha Beta Co., 294 NLRB 228 (1989).
Union if the Union obtained majority status at a new lo-
cation, I conclude that the Union is entitled to recogni-
tion as the bargaining representative of the employees in
question.5
CONCLUSIONS OF LAW
1. Goldsmith Motors Corp. and Goldsmith-Louison
Cadillac Corp. constitute a single employer which is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 868, an affiliate of the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all times material the Union has been the exclu-
sive representative of certain employees of the Respond-
ents in an unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to recognize the Union as the exclusive
collective-bargaining representative of certain of Re-
spondents' employees, the Respondents have refused to
bargain in violation of Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, I find that they must be or-
dered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER
The Respondents, Goldsmith Motors Corp., Hemp-
stead, New York, and Goldsmith-Louison Cadillac
Corp., Jamaica, New York, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local
Union No. 868, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive repre-
sentative of employees in the unit found appropriate as
set forth below:
6 In my opinion, the Respondent's reliance on Arundel Corp., 252
NLRB 397 (1980), is inapposite. In that case, the administrative law
judge concluded that an after acquired clause could not be used to auto-
matically accrete a separate unit of employees, against their wishes, into
an existing bargaining unit even if they were employed by the same em-
ployer. In that case, the charging party union did not in fact, represent
the employees it sought to have included in the existing unit and the ad-
ministrative law judge concluded that these employees could not be
forced to become members of that union. (Indeed they had joined an-
other union). Arundel is therefore distinguishable from the present case
wherein the Union has obtained valid authorizations from a majority of
the employees in question.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
GOLDSMITH-LOUISON CADILLAC CORP 523
All new and used car and truck salesmen and/or
combination new and used car and truck salesmen
of Respondents at their Hempstead, New York Cad-
illac dealership, excludmg all other employees,
guards and supervisors as defined in Section 2(11)
of the Act
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request, bargain with the Union as the exclusive
representative of the employees in the unit described
above, concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement
(b) Post at its facility in Hempstead, New York, copies
of the attached notice marked "Appendix " 7 Copies of
the notice, on forms provided by the Regional Director
for Region 29 after being signed by the Respondents' au-
thorized representative, shall be posted by the Respond-
ents immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, Join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT refuse to recognize and bargain with
Local Union No 868, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL—CIO as the exclusive rep-
resentative of employees in the following appropnate
collective-bargaining unit
All new and used car and truck salesmen and/or
combination new and used car and truck salesmen
of Respondents at their Hempstead, New York Cad-
illac dealership, excluding all other employees,
guards and supervisors as defmed in Section 2(11)
of the Act
WE WILL NOT in any like or related manner mterfer
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the unit de-
scribed above, concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement
GOLDSMITH MOTORS CORP AND GOLD-
SMITH-LOUISON CADILLAC CORP