Industrial Motor Sales, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 270 (N.L.R.B. 1969)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Motor Sales, Inc. and Automotive
Salesmen 's Association ( A.S.A.), affiliated with
SIUNA, AFL-CIO. Case 7-CA-6970
Findings and Conclusions
1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On April 11, 1969, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding finding that 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, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of 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 adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Industrial Motor
Sales, Inc., Ecorse, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This proceeding,
tried before me at Detroit, Michigan, on February 4 and
5, 1969, pursuant to charges filed on September 24 and
October 22,' and complaint issued on November 14, 1968,
concerns allegations that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by refusing to meet and bargain with the
Charging Party as representative of its employees. All
parties appeared and were afforded full opportunity to be
heard and to examine and cross -examine witnesses . Briefs
were received from General Counsel and Respondent.
Upon the entire record in the case' and from my
observation of the witnesses, I make the following:
'At the hearing the parties stipulated that the October 22, 1968,
amended charge , insofar as it alleged certain violations not covered by the
complaint , was withdrawn on November 5, 1968
Respondent , a Michigan corporation with its office and
place of business in Ecorse , Michigan , is engaged in
selling and servicing automobiles and trucks . During the
year ending December 31, 1967, a representative period,
Respondent 's gross volume of business from sales and
services of automobiles and trucks exceeded $500,000;
during the same period it received goods and materials
valued in excess of $10,000 directly from points outside of
Michigan . I find that at all material times Respondent has
been and is engaged in commerce within the meaning of
the Act, and that assertion of jurisdiction here is proper.
The Charging Party (herein called the Union or ASA)
is, and has at all times been , a labor organization within
the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICFS
A. Certification of Union
On February 7, 1967, the Regional Director certified
ASA as the exclusive bargaining representative of
Respondent' s new and used car and truck salesmen based
on an election it won 3 to 2 on December 8, 1966 (Case
7-RC-7608). On November 20, 1967, ASA filed a petition
with the Regional Director to amend its certification so as
to reflect its recent affiliation with the Seafarers
International Union of North America (SIUNA),
AFL-CIO (Case 7-AC-67). After a hearing on this
petition, as well as similar petitions involving ASA
certifications involving other automobile dealers in the
Detroit area, the Regional Director on February 9, 1968,
issued a Decision amending the certification.' On April 26,
1968, the Board dismissed the appeal of Respondent (and
other dealers from the Regional Director's action.
B. Respondent 's Refusal to Bargain
1. Sequence of events4
On February 23, 1967 (about 2 weeks after its
certification), ASA requested a negotiation meeting. When
the parties met on February 27, the Union gave
Respondent's Attorney Colombo its proposed contract.'
On July 27, 1967, the Union asked for another meeting,
but received no response . On August 30, Union Attorney
Ashley requested a reply by September 8 - also so far as
the record shows, without response. On November 29,
1967, Colombo wrote Ashley canceling a meeting
scheduled for December 19, on the ground that "all
bargaining ... should be suspended and held in abeyance
until such time as the NLRB reaches a decision in this
matter"; assuring the Union, however, that "our client
'Transcript corrected by my order or notice dated March 21, 1969
'See my decision in Beglinger-Massie Oldsmobile-Cadillac, Inc, Case
7-CA-6971, issued this date, which presents questions similar to those in
the instant case . As noted in that Decision (at fn. 3), on February 9, 1968,
the Regional Director held that the affiliation did not affect the identity of
the certified ASA Internal structure , officers, and collective-bargaining
procedures remained unaltered ; and the ASA membership by vote
approved the affiliation . Counsel for General Counsel and Respondent are
the same in this case and in Begl,nger-Massie
'Findings in this section are based almost exclusively on documentary
evidence.
'The February 27 meeting was a joint meeting with other dealers
represented by Mr Colombo
177 NLRB No. 42
INDUSTRIAL MOTOR SALES, INC.
will again be willing to meet " with ASA "if and when"
the certification is amended . On December 7, 1967,
Ashley wrote Colombo that in view of his "parallel stand"
in "refusing to bargain until the resolution of the AC
Petitions" involving other employers whom he represented
in the AC proceeding, Ashley "would naturally expect
that these same dealers will take a parallel and
simultaneous stand on future negotiations.""
On February 23, 1968, Ashley, after referring to the
Regional Director's February 9, 1968, letter amending the
certification so as to reflect ASA's affiliation with the
International , requested " immediate good faith bargaining
with the Union." Insofar as appears, Respondent did not
respond to this communication, but the Company sought
Board review of the Regional Director's determination,
which the Board dismissed on April 26, 1968.
On August 22, 1968, Union Business Agent White
wrote the Company:
A review of the Union records indicates that as yet,
we have been unable to meet for the purpose of
negotiating towards a collective bargaining agreement.
Therefore I request that you contact this union, who
is the certified bargaining agent for your sales
ei.iployees in order that we may mutually agree upon
an immediate negotiation date.
On August 27, Colombo's secretary notified White that
Colombo would for personal reasons be unavailable until
September 4. Hearing nothing further around the latter
date, White on September 6 again requested Respondent
for "an immediate negotiation date."
On September 11, 1968, Company Attorney Colombo
wrote to the Union, rejecting its renewed bargaining
request. The letter stated:'
we wish to advise you that our client has been
informed by a majority of its sales employees that they
are no longer desirous of representation by the
Automotive Salesmen 's Association, S.I.U.N.A.,
AFL-CIO.
As a result of these conversations and discussions,
the employer has a good faith doubt as to whether or
not your union represents a majority of its employees
as of this date.
Accordingly, our client sees no useful purpose in
attempting to negotiate a contract when its employees
do not wish to be represented by the Automotive
Salesmen's Association, S.I.U.N.A., AFL-CIO.
Responding on September 13, Union Attorney Ashley
reminded Colombo of the Union's previous attempts to
obtain negotiation meetings and then stated: "this
dealership happens to contain some of the most active
members in the Union" in the area and "it is
inconceivable that they are no longer desirous of
representation" by ASA. Ashley told Colombo that the
Union would file unfair labor practice charges unless
Respondent reconsidered its position . On September 24
the Union filed the charges resulting in the complaint
here.
`Colombo's November 29 and Ashley 's December 7 letters are identical
to those in Beglinger-Massie (supra , fn. 3) See also Barnett Pontiac, Inc .
174 NLRB No. 57
'Except for addressee , this letter is identical to that sent to the Union by
Colombo in Beglinger-Massie (supra , fn. 3).
2. Respondent's alleged good-faith doubt of the
Union's majority
271
The five salesmen participating in the December 8,
1966, Board election are still employed by Respondent. it
was stipulated that two of the three who voted for the
Union (Pittman and Davies) "have remained steadfast in
their belief they wanted the Union to represent them";
that two others (Honour and Weglarz) voted against and
are still opposed to the Union; that General Manager Eby
"was aware and cognizant of the feelings" of all four from
the time of election (December 1966) through September
11, 1968, when Respondent communicated to the Union
its "good-faith doubt" of majority; and that Eby is "still
so aware of it." Respondent predicated its "good-faith
doubt" on the contention that it knew, or had reason to
believe, that the third salesman (Guy) who (as it knew)
voted for the Union no longer wanted it to represent him
on September 11, 1968. In support of its position, it called
two witnesses (Eby and Honour).
General Manager Eby testified that in October or
November 1967 Guy told him that he "didn't like" the
Union's tactics toward a struck dealer,' and that Guy
"was disenchanted with the union, the way they were
operating, that he hadn't been going to meetings and he
wasn 't paying any dues." Eby further testified that in May
1968, Guy indicated that he did not attend a Union
meeting at which the Union's steward (Pittman) lost an
election for the office of "director"; that in July or
August 1968, he overheard a conversation in which Guy
told two other salesmen (Honour and Weglarz) that "if
they think he is going to pay the $140 back dues [Guy
purportedly owed] they are crazy"; and that in December
1967, Guy told Eby that he "wanted to take" a sales
manager position with another dealer. Eby admitted on
cross-examination that in his October 29, 1968, prehearing
affidavit, furnished in the presence of his attorney, he did
not mention the Union's "tactics" as supporting his
alleged belief that Guy was "no longer interested in
ASA," there limiting his basis of alleged belief to the
circumstances that Guy "was not paying his dues," that
he "was looking for a sales manager's position
elsewhere," and that he "applied for a dealership of his
own."°
Honour , a longtime friend of Guy's father, testified that
a week or 10 days after the December 1966 election Guy
told him that he "felt bad" that he "let Bob [Eby] down
by voting for the Union" and that around the March 1967
strike Guy told him he would not go on strike and that he
opposed violence against dealers' property; also, that in
August 1968, Guy remarked that he was not going to pay
a Union dues bill. Honour conceded that Guy did not say
that he "didnt want them [the Union] to represent him"
nor did Honour claim that he relayed to management any
of his conversations with Guy. Honour also admitted not
knowing whether or not Guy had paid his dues.
Furthermore, although Honour testified that Guy would
'Around March 1, 1967, ASA struck certain dealers in the Detroit area.
Respondent's employees did not join the strike Eby testified that around
this time Guy told him he was opposed to striking against Respondent
'Asked why in his affidavit he did not cite the claim that Guy objected
to the Union 's tactics , Eby explained that he had answered only the
specific questions put to him by the Board agent, which were limited to
events in 1968. Eby later admitted that he "discussed with the Board agent
things with respect to the ASA back to 1966" when "asked" about them
He also admitted that the Board agent had put to him the general question
of "why you believed Mr Guy was no longer and since when you believed
he was no longer interested in ASA "
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"at times" favor the Union and "then the next day he
would be against it," he admitted swearing in his
November 4, 1968, prehearing affidavit that it was
"common knowled^e" that Guy was one of the three who
is "for the ASA.'"
Guy admitted telling Eby that he was opposed to
striking against Respondent , unless all area dealers were
struck simultaneously, since a strike would hurt the
dealership competitively. He also admitted telling Eby
that he was opposed to Union tactics involving violence or
damage explaining that "[i]f the Union told me to do this
I wouldn't do it." However, Guy also testified that
although he "heard about it," he saw no such Union
"tactics"; and that he was never instructed and knew of
no one instructed by the Union "to engage in any form of
improper conduct." Guy also stated that while he had
once been delinquent in dues (as much as $ 100 or $120),
he had paid up. He further testified that he has attended
two Union meetings within the last year, including an
election meeting at which employee Pittman was defeated
for the office of Union vice president." Guy credibly
explained that his purpose in contemplating a sales
manager' s position and obtaining a dealership - which he
admitted mentioning to Eby - was to make "more
money," "not for the purpose of getting out of the
union."
Finally, Guy testified that he never told Eby or anyone
else that he was withdrawing or had withdrawn from the
Union or that he did not want the Union to represent
him. Guy testified that he has been a Union member since
1966 and still is, that he favored unionization of
Respondent, and that he had picketed (without pay) four
other dealers on behalf of the Union . While admitting
being "critical" of certain reported Union tactics and that
his "attitude" toward the Union was not at all times the
same, Guy swore that this did not affect his desire "about
representation ." I credit him.
C. Conclusions
1. As found, about 2 weeks after its February 7, 1967,
certification, ASA requested Respondent to bargain
collectively. The parties met only once - on February 27,
1967. The Union made six additional written requests to
bargain (February 27 and August 30, 1967; and February
23, August 22, and September 6 and 13, 1968)," of which
Respondent ignored four, canceled one, and in response to
another finally withdrew Union recognition (on September
11, 1968). In its November 29, 1967, communication to
the Union, Respondent suspended further negotiations
until the Board disposed of the Union's pending petition
for amendment of its certification to reflect affiliation
with an International (Seafarers). Although Company
Attorney Colombo assured the Union that his client
would resume negotiations upon its approval, Respondent
never offered or agreed to do so. On September It, 1968,
"Honour did not impress me as a forthright or reliable witness . I credit
his testimony only to the extent it is consistent with and corroborated by
credited testimony of Guy and Eby. Honour was frequently unresponsive
and inconsistent , and at times had to be prodded . Admitting it was
"common knowledge" that he was "against the ASA," at one point
Honour denied being "opposed to the union."
"To the extent that Guy 's foregoing testimony is inconsistent with that
of Eby, I credit that of Guy, who had firsthand access to the facts
Furthermore , Guy impressed me as an essentially honest and credible
witness His description of the election meeting was vivid and detailed.
Likewise to the extent that Guy 's testimony differs from that of Honour, I
credit that of Guy
Colombo notified the Union of Respondent's final refusal
to bargain, based on the claim that "the employer has a
good-faith doubt" of the Union's majority "as of this
date."
2. My Beglinger-Massie decision (supra, fn. 3) reviews
the law applicable. Identical defenses and issues are raised
herein by the same counsel. As indicated in
Beglinger-Massie, absent "unusal circumstances," a
union's majority status is irrebuttably presumed during the
first year following certification. Thereafter the
presumption continues, but is rebuttable; if the employer
entertains a good-faith doubt that the union still
represents a majority, he may lawfully withdraw union
recognition. However, the employer's asserted doubt must
have a "rational basis in fact." N.L.R.B. v. John S.
Swift Co., 302 F.2d 342, 346 (C.A. 7). "The assertion
must be supported by objective considerations."
Laystrom Manufacturing Co., 151 NLRB 1482, 1484."
Furthermore, the claimed doubt may not be asserted "in a
context of illegal antiunion activities, or other conduct by
the employer aimed at causing disaffection from the
union." Celanese Corporation of America, 95 NLRB 664,
673; Woody Pontiac Sales, Inc., 174 NLRB No. 81.
Here, Respondent raised the issue of Union majority on
September 11, 1968 - 7 months after the certification
year expired - averring that as "a result of .
conversations and discussions [with employees], the
employer has a good faith doubt" of the Union's majority
"as of this date." In issue, therefore, is whether
Respondent had a "rational basis in fact" for questioning
the certified Union's majority on September It, 1968. The
validity of the claimed doubt "is to be determined as of
the time the employer refused to recognize the union."
Snow & Sons v. N.L.R.B., 308 F.2d 687, 694 (C.A. 9).
See also N.L.R.B. v. Kellogg's Inc., d/bla Kellogg Mills,
347 F.2d 219, 220 (C.A. 9).
3. At the hearing Respondent indicated that its alleged
"good-faith doubt" was bottomed solely on the claim that
one of the three salesmen in the five-man bargaining unit
who voted for the Union (Guy) no longer wanted it to
represent him. Respondent stipulated that it knew that
two others "have remained steadfast in their belief they
wanted the union to represent them." The record
establishes, however, that Guy neither possessed nor
communicated to management any desire to repudiate the
Union nor to have it cease representing him. General
Manager Eby testified that he premised his belief that
Guy no longer wanted Union representation upon: (a)
Guy's statement in October or November 1967 that he did
not like the Union's strike tactics at other dealers and that
he was not attending Union meetings and paying dues; (b)
his remark in December 1967 that he was interested in a
sales manager position;" (c) his further statement in May
"Unlike in Beglinger-Massie (supra, fn 3), General Counsel did not
introduce evidence of any oral bargaining requests , limiting his
case-in-chief to introduction of the correspondence on the meetings.
(General Counsel also obtained stipulations concerning the Union attitude
of employees in the unit prior to resting his case ) Additional verbal
request for bargaining is indicated by Respondent 's November 29, 1967,
letter canceling a meeting scheduled for December 19, 1967 , although there
is no previous written mention of such a meeting.
"See also N.L R B. v Ruh Equipment Company, 407 F.2d 1098 (C.A
4), N L.R:B. v. Gulfmont Hotel Co, 362 F 2d 588, 589 (C A. 5); N L R B
v Howe Scale Co., 311 F 2d 502, 504 (C.A. 7); N L.R B Y. Downtown
Bakery Corp., 330 F.2d 921, 925 (C.A. 6); J C. Penny Co, 162 NLRB
1553, 1554, 1558, enfd. 391 F 2d 935 (C.A. 6)
"In his October 29, 1968, preheating affidavit , Eby also mentioned that
Guy applied for his own dealership , presumably in 1968.
INDUSTRIAL MOTOR SALES, INC. 273
1968 that he did not attend a Union election meeting; and
(d) a conversation Eby overheard in July or August 1968
in which Guy told two other salesmen that the Union
would be "crazy" to think that he would pay it $140 back
dues.
In the context of the record presented, Respondent's
resurrection of stale conversations held in October and
November 1967 to justify its questioning of the Union's
majority in September 1968 may not be regarded as
devoid of significance. The same is true of Guy's more
recently alleged statement about failing to attend the May
1968 Union election meeting and his July or August 1968
alleged remark overheard by Eby that the Union would be
"crazy" to expect him to pay $140 back dues. The fact is
that Guy did attend the May 1968 meeting; and the
further fact is that he paid up all his dues. To be sure,
Guy expressed himself as opposed to strike violence and
misconduct and objected even to peacefully striking
against his employer. But - as Guy testified and as is
obvious - such statements are in no way inconsistent
with continued desire for union representation.
Furthermore, as Eby knew, Guy applied for his own
dealership and for a managerial position at another
employer in order to make more money. None of these
factors, singly or in the aggregate , negated Union
adherence or retention of Union representation while an
employee. Guy's own experience proves the point. He
picketed four dealerships on behalf of the Union, attended
two Union meetings in 1968, and paid all his dues. He has
been a member of the Union since its inception at
Respondent and still is. Moreover, Guy never told Eby or
anyone else that he withdrew or contemplated
withdrawing his Union membership or the Union's
authority to represent him. The fact that he was at times
"critical" of the Union and that his enthusiasm varied in
degree is inconclusive, since the most ardent unionist may
be critical of his union without being opposed to
unionization.
Weighing credibility as well as probability, I find that
Respondent's alleged "good- faith" doubt concerning the
Union's majority has not been established by a fair
preponderance of substantial credible evidence as required.
4. Despite indicating at the hearing that its "good-faith
doubt" of the Union's majority was predicated solely on
employee Guy's changed Union attitude and despite its
September 11, 1968, letter premising the claimed doubt
only on "conversations and discussions" with employees,
Respondent in its brief (p. 10) now adds five other
"objective considerations" (most of them identical to
those advanced in Beglinger-Massie) in purported
justification of its assertion that "the union has lost its
majority status since certification." These are: (a) the
"close vote" (3 to 2 for the Union) in the December 8,
1966, election; (b) the fact that no employees "walked out
on strike"; (c) failure of ASA representatives to appear at
the dealership premises ; (d) the salesmen's failure to
attend negotiating meetings during the certification year;
and (e) the Union's "refusal to submit to an[other]
election and its adamant demand to go through `AC'
hearing ."" In addition , Respondent claims (br. pp. 8, 12)
- as also did the employer in Beglinger-Massie - that
the Union "is estopped to argue that [it] has refused to
bargain because of [the Union's] own dilatory tactics." I
find that the additional factors now relied upon neither
constituted "objective considerations" supporting a
good-faith doubt of union majority, nor in fact motivated
Respondent's purported "belief" that the Union was
without a majority. As in Beglinger-Massie, and as there
explained, these "objective considerations" are sheer
afterthoughts advanced to cloak a deliberate scheme to
avoid a statutory duty to bargain.
The "close vote" in the election is not in itself
significant," the critical question being whether
Respondent in good faith believed that the "swing man"
(Guy) had revoked his Union authorization. The fact that
no Company employee went out on strike is immaterial
since (a) there is no evidence that the Union called a
strike against Respondent; and (b) failure of employees to
go out on a strike may be based upon a variety of
personal reasons wholly unrelated to union repudiation.
Celanese Corporation of America, 95 NLRB 664, 674.
Similarly, it has not been shown that ASA representatives
never appeared at Respondent's premises nor that any of
Respondent's employees failed to attend "a negotiation
meeting" - even if it be assumed that these factors were
material considerations (see Beglinger-Massie, supra,
section C, 2). Respondent errs in inferring from the
"union's refusal to submit to a [second] election" and
"adamant demand to go through" an "AC" hearing "a
strong presumption that even the Union knew that they
did not represent a majority of the men." In view of the
irrebuttable presumption of union majority during the
certification year and of the rebuttable presumption
thereafter which the law accords a certified union, the
Union here had no reason to seek to reaffirm its majority
in another Board election. Finally, as to the contention
that the Union could have been more diligent in pressing
for negotiation meetings, it is clear that Respondent itself
resisted and rejected those meeting requests which the
Union did make. In any event, "Assuming ... the Union
was `lax and negligent' in this respect ... such conduct is
no defense to the [employer]." McLean, d/b/a Ken's
Building Supplies v. N.L.R.B., 333 F.2d 84, 88 (C.A. 6).
"[I]t constituted more of a violation of duty owing to its
members than to the [employer]." Ibid.
Accordingly, I conclude that the substantial credible
evidence establishes that Respondent's refusal to bargain
with the Union on September 11, 1968, was not based on
a good-faith doubt of the Union's majority; that the
Union since its certification on February 7, 1967, in fact
represented and still represents a majority of Respondent's
employees in the bargaining unit; and that Respondent at
no time intended to engage in good-faith bargaining, its
failure and refusals to bargain being based on a rejection
of the collective-bargaining principle. Cf. Woody Pontiac
Sales, Inc., 174 NLRB No. 81; Barnett Pontiac, Inc., 174
NLRB No. 57. The multiplicity of the "grounds"
advanced by Respondent for its alleged good-faith doubt
concerning the Union's majority, as well as the
unsupported and specious character of some of them,
reflect on Respondent's bona fides. Cf. N.L.R.B. v.
Austin Powder Company, 350 F.2d 973, 977 (C.A. 6)."
"In Beglinger-Massie, the employer also relied on employee turnover
and fluctuation in unit size. In the instant case, it was stipulated that both
personnel and unit size remained constant throughout the 19 months here
in question.
"See N L R B v. Austin Powder Company, 350 F 2d 973, 974, 977
(C A. 6); The Colson Corporation v. N.L R B, 347 F 2d 128, 134 (C A
8); Amalgamated Clothing Workers of America, AFL-CIO [Hamburg
Shirt Corp I v N L.R B , 371 F 2d 740, 745 (C.A.D C ).
"In view of the time limitation prescribed in Section 10(b) of the Act
barring findings of violations prior to March 24, 1968, the date fixed by
the filing of the Union 's original charge, Respondent's refusal to bargain is
found to have commenced on that date. However, Respondent's conduct
prior to the March 24, 1968, cutoff date could properly be considered for
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. All new and used car and truck salesmen at
Respondent ' s Ecorse, Michigan , place of business,
excluding office clerical employees , guards and supervisors
as defined in the Act, and all other employees, constitute
a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. At all times since February 7, 1967, the Union has
been the exclusive representative of all employees within
said appropriate unit for purposes of collective bargaining
in respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment within the
meaning of Section 9(a) of the Act.
4. By refusing since March 24, 1968, to meet and
bargain with the Union as exclusive representative of the
employees in the above -described appropriate unit,
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act by refusing to meet and bargain with the Union
as the exclusive representative of its employees in an
appropriate unit , I will recommend that Respondent be
required to cease and desist from engaging in such unfair
labor practices and, upon request, bargain collectively
with the Union concerning wages , rates of pay , hours, and
other terms and conditions of employment, and to
embody in a signed agreement any understanding reached.
General Counsel requests that, as part of the remedial
order, the certification period be extended for 1 year from
the date when Respondent begins to bargain in good faith
in compliance with the Order herein, so as to afford the
Union a full year of good - faith bargaining. Respondent,
on the other hand, contends (br. pp. 9-10) that even if "a
determination is made that the employer should be made
to bargain then the certification period should only be
extended a period no longer than 70 days or a period
equal to the period of time from November 29, 1967
[when it suspended bargaining pending the outcome of the
"AC" proceeding] to February 7, 1968 [the end of the
initial 1 -year certification period]."
General Counsel's requested remedy is normally
provided in cases of this type 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 ." Barnett Pontiac , Inc., 174 NLRB No.
57 (fn. 1), and cases cited therein . See also
Beglinger-Massie , supra ("The Remedy" section).
However , in Dean Sellers , Inc., 174 NLRB No. 56 (70
LRRM 1186)," the Board , overruling the Trial Examiner,
recently refused to extend the initial 1-year certification
period where the certification had expired before the 10(b)
cutoff date. Since the 1-year certification here ended on
February 7, 1968, and since Respondent 's refusal to
bargain (by reason of the 10(b) limitation) is found to
purposes of evaluating the nature and character of its conduct during the
statutory period . (See Beglinger-Massie , at fn. 22.)
have begun on March 24, 1968 (supra, fn. 17), under the
Dean Sellers ruling I am constrained to deny General
Counsel's request to extend the certification year beyond
the date Respondent begins to bargain in good faith in
compliance with this Order." However, compliance with
the terms of this Order still requires it to bargain in good
faith for a reasonable period of time. See Frank Bros. Co.
v. N.L.R.B, 321 U.S. 702; N.L.R.B. v. Universal Gear
Service Corp., 394 F.2d 396 (C.A. 6); NL.R.B v
Miami Coca-Cola Bottling Co., d/b/a Key West
Coca-Cola Bottling Co., 382 F.2d 921, 923-924 (C.A. 5).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the Act, I recommend that
Respondent , Industrial Motor Sales, Inc., of Ecorse,
Michigan , its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to meet and bargain collectively in good
faith with Automotive Salesmen ' s Association (A.S.A.),
affiliated with SIUNA, AFL-CIO, as the exclusive
bargaining representative of its employees in the
appropriate bargaining unit , with ' respect to wages, rates
of pay , hours of employment, and other terms and
conditions of employment , and embodying in a signed
agreement any understanding reached.
(b) In any like or related mangler interfering with the
effort of the above-named labor organization to bargain
collectively on behalf of the employees in the bargaining
unit.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request , meet aid bargain with the
above-named labor organization, as the exclusive
representative of all of its employees in the appropriate
bargaining unit with respect to w ages, rates of pay, hours
of employment , and other terns and conditions of
employment , and embody in a signed agreement any
understanding reached. I
(b) Post at its place of busine s in Ecorse, Michigan,
copies of the attached notice marked "Appendix." 20
Copies of said notice , on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent ' s representative , shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all laces where notices to
employees are customarily posted , Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered , defaced , or covered by any, other material.
"This case involved one of the employers in the consolidated "AC"
proceeding (supra, fn 3)
"But compare N L.R B v Lundy Manu actunng Corp, 316 F.2d 921,
927 (C.A 2), cert. denied 375 U.S 895, here In affirming the Board's
findings of assistance to a labor organization, the Court held that the
Board properly considered (136 NLRB at 1233-34) pre-Section 10(b)
employer conduct in fashioning its remedial order. Quoting from Local
Lodge No 1424, I A M (Bryan Manufacturing Co ) v N L R B. 362
U.S. 411, that "earlier events may be utilized to shed light" on the nature
of the conduct within the limitations period , the Court stated, " It follows a
fortiori that in such a situation the Board may look to earlier events to
determine the appropriate remedy to be prescribed ." 316 F 2d at 927. See
also Arden Furniture Industries of Pennsylvania, Inc, 164 NLRB No. 159.
"In the event that 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
INDUSTRIAL MOTOR SALES, INC. 275
(c) Notify said Regional Director, in writing , within 20 WE WILL , upon request , meet and bargain
days from the receipt of this Decision , what steps have collectively with Automotive Salesmen ' s Association
been taken to comply herewith ." (A.S.A.), affiliated with SIUNA, AFL-CIO, as your
event that 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 that 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
exclusive representative in the appropriate bargaining
unit, regarding wages, rates of pay, hours of
employment, and sign our name to an agreement
containing any understanding reached. The bargaining
unit is:
All new and used car and truck salesmen at our
Ecorse, Michigan, place of business, excluding office
clerical employees, guards and supervisors as defined
in the Act.
INDUSTRIAL MOTOR
NOTICE TO ALL EMPLOYEES OF INDUSTRIAL MOTOR SALES, INC.
SALES, INC. (Employer)
Posted pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, an
agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Industrial Motor
Sales, Inc., violated the National Labor Relations Act, as
amended, and we have been ordered to post this notice.
Among the rights which the National Labor
Relations Act gives you, as an employee, is the right to
bargain collectively through a representative of your
own choosing. Accordingly, we hereby assure you that:
Dated By
(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
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building , 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200.