John P. Serpa, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1965

155 N.L.R.B. 99 (N.L.R.B. 1965)

JOHN P. SERPA, INC. 99
It is hereby ordered that the complaint be dismissed to the extent that it alleges
unlawful discrimination in employment against employees in violation of Section
8(a)(3) of the Act.
APPENDIX
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Food Store Employees Union
Local # 347, Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, as the exclusive bargaining representative of all employees in
the appropriate bargaining unit described below.
WE WILL, upon proper request, bargain collectively with Food Store Employ-
ees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representative of all employees in
the bargaining unit described below, and, if an agreement is reached, sign such
an agreement. The bargaining unit is:
All employees in our Parkersburg, West Virginia, store, excluding the
store manager, the assistant store manager, office clerical employees, guards,
professional employees, and all supervisors as defined in the Act.
WE WILL NOT offer to adjust employee demands for improved working condi-
tions while attempting to dissuade them from union activities, offer to remove
company managers, grant improved working conditions, or promise increased
rates of pay as inducements for discontinuing union activities, interrogate employ-
ees concerning their union activities, create the impression that employees are
being surveyed, threaten employees with undesirable working conditions, the
closing of the store, or the hire of additional employees, to deprive the present
complement of hours of work-all in order to induce them to abandon union
activities-request employees to attempt to influence other workmen to abandon
their union, or in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
BIG BEAR STORES COMPANY,
Employer.
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, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
John P. Serpa, Inc. and Retail Clerks Union , Local No. 1179,
Retail Clerks International Association , AFL-CIO. Case No.
20-CA-3283. October 8,1965
DECISION AND ORDER
On May 5,1965, Trial Examiner Wallace E. Royster issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
155 NLRB No. 12.
212-809-66-vol. 155-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereupon the General Counsel
and the Charging Party each filed exceptions to the Trial Examiner's
Decision and a, brief in support thereof. The Respondent filed a brief
in answer to the exceptions and a brief in support of the Trial Exam-
iner's Decision.
The National Labor Relations 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, the
briefs, and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, as modified
herein.
The facts are not in substantial dispute. By Friday, September 25,
1964, five of Respondent's seven salesmen, a unit stipulated to be appro-
priate, had signed cards authorizing the Union to represent them. On
that date, Union Representatives Roddick, Atkinson, and Paddock
met with Fred Peri, part owner and general manager of the Respond-
ent, presenting a letter requesting recognition and a recognition agree-
ment for signature. At the same time, they spread the five authoriza-
tion cards in front of Peri for his inspection. Peri asked for time to
consult his attorney, to which the union representatives agreed. Peri
talked with his attorney on Saturday, September 26, but, as found by
the Trial Examiner, he did not call the Union on that date or at any
other time thereafter.' The Union filed refusal-to-bargain charges on
Wednesday, September 30. Atkinson met Peri on October 1 and asked
if Respondent had signed the recognition agreement; Peri answered
that he had no intention of doing so.
While we agree with the Trial Examiner's conclusion that the
Respondent did not refuse to recognize the Union in violation of Sec-
tion 8(a) (5) of the National Labor Relations Act, as amended, we do
not adopt his rationale for so finding? Where the General Counsel
seeks to establish a violation of Section 8(a) (5) on the basis of a card
showing, he has the burden of proving not only that a majority of
employees in the appropriate unit signed cards designating the union
as bargaining representative, but also that the employer in bad faith
declined to recognize and bargain with the union. This is usually
'The Respondent asserts it was waiting to hear from the Union. In our view of the
case, even if the Respondent promised to call the Union and failed to do so, this would
be insufficient, standing alone, to establish a violation of the Act.
2 The Trial Examiner concluded that the Respondent did not breach its bargaining obli-
gation because the Union's majority status was "fleeting and evanescent " This finding
was, in turn, based on the fact that two of the employees, who had signed the designation
cards displayed on September 25, notified Respondent shortly thereatfer that they no
longer wanted the Union to represent them Since our decision rests on other ground;
we find it unnecessary to pass on the effect of this repudiation.
JOHN P. SERPA, INC. 101
based on evidence indicating that respondent has completely rejected
the collective-bargaining principle or seeks merely to gain time within
which to undermine the union and dissipate its majority.3 In the pres-
ent case, the General Counsel has not introduced any evidence which
would support such a finding. The fact that the Union placed the
cards in front of the Respondent in such a way that Respondent prob-
ably saw the names and signatures cannot create the obligation to bar-
gain or establish Respondent's bad faith 4 As the General Counsel has
not met this burden of proof, we shall dismiss the complaint.
[The Board dismissed the complaint.]
8 Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C A.D C.).
4 This case Is clearly distinguishable from Fred Snow, Harold Snow and Tom Snow
d/b/a Snow & Sons, 134 NLRB 709, where the employer agreed to the check of cards
against the payroll by a neutral third party and thereafter rejected the results of such a
check and sought a Board election.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in San Francisco,
California, on March 2 and 3, 1965.1 At issue is whether John P. Serpa, Inc., Mar-
tinez, California, herein called the Respondent, has unlawfully refused to bargain,
upon request, with Retail Clerks Union, Local No. 1179, Retail Clerks International
Association, AFL-CIO, herein called the Union. It is alleged that by this refusal
the Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the
Act.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with retail automobile sales operations
at Martinez and Concord, California, and a service operation at Martinez, California.
Respondent's annual receipts from the conduct of its operations exceed $500,000. It
purchases and receives goods valued at more than $50,000 annually which are trans-
ported to its places of business from points outside the State of California. It is con-
ceded, and I find, that the Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded , and I find, that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In furtherance of a purpose to organize the sales employees of automobile dealers
in the area, the Union placed a picket line at or near Respondent's premises on Sep-
tember 16, 1964.2 On September 24 and 25, five of Respondent' s seven salesmen
signed cards authorizing the Union to represent them for purposes of collective
bargaining.
In the late afternoon of September 25, William C. Roddick, the Union's secretary-
treasurer, accompanied by Willard E. Atkinson , an organizer for the Union, and
another union representative named Paddock, came to the Martinez office of the
I Charges filed September 30 and December 18, 1964. Complaint issued December 21,
1964.
2AII dates hereinafter mentioned are in 1964.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and met with Fred Peri, the general manager of Respondent's operations
and a part owner. After learning from Pen that the Respondent employed seven
salesmen, Roddick said that he had authorizations from five of them designating the
Union as their bargaining representative. Roddick then presented Peri with a letter
demanding recognition, a form for Peri's signature entitled "Recognition Agreement,"
and spread the authorization cards on the desk before him. Peri said that he did not
understand just what the Union wanted him to do. Roddick replied that they wanted
recognition as bargaining representative of the salesmen. Peri said that he was
ignorant in such matters and that he would like to consult his attorney. Roddick said
that the Union had no objection but urged Pert to do so immediately. Pert protested
that it was nearly 6 p.m. on a Friday and that it was not likely he could reach counsel
at that hour. Roddick then gave Peri a business card with the telephone number of
the Union and with Roddick's home telephone number written on its face, and asked
Pert to telephone him after consulting the attorney. The union representatives then
left.
Peii testified that it was his understanding at the conclusion of this brief meeting
that the union representatives would return on some future date to discuss the matter
further; that he did consult an attorney in the matter; and that following advice of
counsel he waited to hear from the Union. On September 28, a Tuesday, an attorney
for the Union signed a charge against the Respondent alleging a refusal to bargain.
The charge was filed the following day, September 30, and served on the Respondent
on October 1. On September 30, Peri received a written notice from A. L. Bravo, Jr.,
one of those who had signed a card for the Union, saying, in effect, that Bravo had
changed his mind and no longer desired to have the Union as his representative. On
or before that date Peri received a similar notification from another card signer,
W. A. Hoskins. On October 1, after the initial charge in this matter had been filed
and after Peri had received the communications from Bravo and Hoskins, Union
Organizer Atkinson met Pen in Concord. Atkinson asked Peri if he had signed the
recognition agreement. Peri said that he had not and that he did not intend to. Peri
suggested that the Union should get in touch with the Contra Costa Automotive Asso-
ciation, Inc., herein called the Association. It appears that in 1958 the Respondent,
along with a number of other automobile dealers, authorized the Association to
represent it in all matters respecting the negotiation, execution, and administration of
collective-bargaining agreements. It was stipulated at the hearing that the Association
and its members have dealt with other labor organizations who represent certain
classifications of employees in a single associationwide unit.
About October 1, the picket signs carried by those patrolling Respondent's prem-
ises in behalf of the Union were changed from an "information" wording to an asser-
tion that unfair labor practices were being protested. Mrs. Dana Bostick testified
that she picketed for the Union at the Respondent's Concord location for a few days
in mid-October. On October 13, Bostick testified credibly and without contradiction,
Wade Ackerson, the manager of Respondent's used-car operation, accused her of
harassing his customers and said that if she did not stop writing down customers'
license numbers he would call in "some real tough people"; that it would not be safe
for her to continue picketing. Beatrice Walker testified that while picketing at the
same location on October 19, after a possible customer had turned away from the
lot because of the presence of the picket, Ackerson said, "Well, if you talk to my
customers any more I am going to splatter you all over that sidewalk." This threat
was uttered in the presence of Joe Pace, one of Respondent' s salesmen . Joseph
Pimental testified that he picketed from September 16 through December 20, and
that after the picket signs were changed to allege the commission of unfair labor prac-
tices, the attitude of John Serpa, one of the owners, became most unfriendly. Accord-
ing to Pimental's credited and undenied testimony, Serpa said, "We are going to take
care of you. I got a shotgun and a forty-five pistol, and if that doesn't do it, I will get
a crusher to work you over." This threat, Pimental testified, was repeated by Serpa
on another occasion and was uttered at least once in the presence of Hoskins, one of
the salesmen. On another occasion Serpa threatened to strike Pimentel with a
club. At another time, Pimentel testified, the sales manager at Martinez, William H.
Tucker, said that if Prmentel did not stop talking to truckdrivers he would get a
motorcycle wrapped around his neck. Two salesmen, John Davis and Bravo, were
within hearing of this remark. On several occasions, Pimentel testified, Peri
approached him, said that he had a shotgun, and told Pimentel "watch yourself."
At the hearing this evidence concerning threats to pickets was admitted to show a
union animus on the part of Respondent. There is no allegation in the complaint
respecting these incidents or any allegation of conduct violating Section 8(a)(1) of
the Act except as deriving from the refusal to bargain For the first time in his brief
to me, counsel for the General Counsel urges that a finding of independent violation
JOHN P. SERPA, INC. 103
of Section 8(a)(1) be based upon the incidents described in testimonies of Bostick,
Walker, and Pimentel.3 Because of the posture of pleadings I make no finding of
such independent violations.
On October 13, during the course of the picketing, counsel for the Respondent filed
a petition with the San Francisco Regional Office of the Board stating that a demand
for recognition had been made by the Union and asking that an election be held.
Presumably because of the pendency of the unfair labor practice charge, no election
eventuated.
It is clear that on September 25 the Union held valid designations from a majority
of the employees in the bargaining unit .4 It is argued that because the Respondent
then expressed no doubt as to the fact of designation, and as the unit is appropriate,
the Union then established its entitlement to recognition. I am sure that on Septem-
ber 25 Peri was convinced that his employees had signed the cards displayed before
him and that although he might have had some vague thought that this was a matter
to be handled by the Association, he made no clear statement to that effect.
Peri said on September 25 and testified at the hearing that he was uninformed in
such matters. If upon receipt of this demand for recognition the Respondent had
initiated a course of conduct designed to coerce its employees to withdraw their sup-
port from the Union, the answer would be easy, but from all that the record divulges
the Respondent did nothing at all. Peri apparently clung to the hope that the Union
would just go away.
In Fred Snow et al., d/b/a Snow & Sons, 134 NLRB 709, 710-711, the Board said,
"[T]he right of an employer to insist upon a Board-directed election is not absolute.
Where, as here, the Employer entertains no reasonable doubt either with respect to
the appropriateness of the proposed unit or the Union's representative status, and
seeks a Board-directed election without a valid ground therefor, he has failed to ful-
fill the bargaining requirements under the Act." Were it not for the communications
received by Pen from Bravo and Hoskins on or before September 30, I think that the
case just referred to would dictate the decision here.
The testimony of Roddick and Atkinson that on September 25 Peri promised to
telephone the Union as soon as he had consulted his attorney is credited. It is not
likely that Roddick would have provided Peri with a private telephone number except
to facilitate such an arrangement. Peri never communicated with the Union and it
is the sense of Roddick's testimony that the latter was doubtful that Pen would. The
Union was content to file a charge and to depend upon the designations to establish
its status. No doubt it would have been lawful in the circumstances then existing
for the Respondent to have recognized the Union on September 25 and to have
engaged in bargaining. However, it is not asserted that Peri acted improperly in
delaying action so that he might obtain counsel and I think it doctrinaire to conclude
that by failing to communicate with the Union before September 30 he demonstrated
a determination not to afford the salesmen their right to have representation. I am
sure that Pen was quite unentranced by the prospect that he might have to bargain
with the Union and perhaps was casting about to find some lawful or at least plausible
reason for refusing to do so. No nudge to action came from the Union until after
Bravo and Hoskins had informed Pen that, after all, they didn't want a union. There
is no record evidence to explain this change of heart but I do not understand why their
expressions of preference on September 30 are entitled to less weight than those con-
tained in their designations on September 25.
I think that the sum of this case can be expressed in the conclusion that the desig-
nation cards signed on September 25 did not ieliably evidence the considered prefer-
ence of the signers. Now to proclaim the Union to be the exclusive representative
of Respondent's salesmen upon the basis of such a fleeting and evanescent majority
would not in my view serve to effectuate any of the policies or purposes of the Act.
The threats to the pickets made in the presence of Respondent's employees cer-
tainly evidence an extreme hostility on the part of the Respondent to the picketing
activity and perhaps by extension of reasoning to any movement among Respondent's
employees to have the Union represent them. But the threats were uttered some time
after the Union had lost its majority and have no relevance to that loss.
RECOMMENDED ORDER
I recommend that the complaint be dismissed.
3 These pickets have never been employed by the Respondent.
4 There is no genuine dispute about unit. I find that the unit of nonsupervisory sales-
men described in the complaint Is appropriate for purposes of bargaining within the
meaning of Section 9 (b) of the Act.