John Stepp's Friendly Ford, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1963

141 N.L.R.B. 1065 (N.L.R.B. 1963)

JOHN STEPP'S FRIENDLY FORD, INC. 1065
WE WILL offer to Billy Walker Smith immediate and full reinstatement to the
position he held before he was demoted, or to a substantially equivalent position,
without prejudice to his seniority and rights and privileges at the rate he was paid
before said rate was reduced, and will make him whole for any loss of pay he may
have suffered by our discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of the aforesaid Union, or any other labor organization.
RE91INGTON RAND CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 714 Falls
Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451,
if they have any questions concerning this notice or compliance with its provisions.
John Stepp 's Friendly Ford , Inc. and Teamsters Local No. 959,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case No. 19-CA-2445. April
2, 1963
DECISION AND ORDER
On November 28, 1962, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
'The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
NOTE -We will notify the above- named employee if presently serving Inthe Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
141 NLRB No. 94.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Teamsters Local No. 959, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
herein called the Union, the General Counsel of the National Labor Relations Board
by the Regional Director for the Nineteenth Region (Seattle, Washington), issued
a complaint dated August 13, 1962, which was amended at the hearing, against John
Stepp's Friendly Ford, Inc., herein called Respondent, alleging that Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section
8(a) (1), (3 ), and (5) and Section 2(6) and (7) of the Labor Management Relations
Act, as amended, herein called the Act. Copies of the charges, the complaint, and
notice of hearing were duly served upon Respondent in response to which Respondent
filed an answer denying the unfair labor practices alleged.
Pursuant to the notice, a hearing was held on September 18, 19, and 20, 1962, at
Anchorage, Alaska, before Trial Examiner Sidney Lindner. All parties were rep-
resented at the hearing and were given full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues., They were also given
opportunity for oral argument at the close of the hearing, which was waived, and to
file briefs and proposed findings and conclusions of law. Briefs have been received
from the General Counsel and counsel for the Respondent and have been duly
considered.
Upon the entire record in the case, and upon observation of the demeanor of wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, John Stepp's Friendly Ford, Inc., at all times material herein has
been a corporation duly organized under and existing by virtue of the laws of the
State of Alaska, having its principal office and place of business in the city of
Anchorage, State of Alaska, where it is engaged in the sale and servicing of Ford and
Lincoln-Mercury automotive vehicles. Since on or about May 19, 1962, to the date
of the hearing herein, Respondent in the course and conduct of its business operations
purchased and has caused to be transported and delivered to its place of business in
Anchorage, Alaska, Ford automotive vehicles, parts, accessories, and other goods and
materials valued in excess of $50,000 directly from States of the United States other
than the State of Alaska. Respondent admits and I find that it is an employer within
the meaning of Section 2(2) of the Act and has been engaged in commerce within
the meaning of Section 2(6) and (7) of the Act from and after May 19, 1962.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters Local No. 959, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organization admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
On October 13, 1961, an election having been conducted in Case No. 19-RC-2687
(not published in NLRB volumes) in which matter Westward Motors, Inc, was the
employer and the Union herein the petitioner, the Regional Director on behalf of the
Board pursuant to Section 9(a) of the Act certified the Union as the collective-
bargaining representative of the employees in the following appropriate collective-
bargaining unit:
All automobile salesmen employed by the Employer at its Anchorage, Alaska,
automobile and truck sales establishment, excluding all other employees and
supervisors as defined in the Act.
1 At the completion of the General Counsel's case-in-chief, I granted Respondent's motion
to dismiss the complaint insofar as it alleged the discriminatory refusal to retain in its
employ and refusal to hire Andy Hess, John Salverson, Pete Wysk, Dominic Christopher,
Jesse Ray, Harvey Nordquist, Larrance Baldridge, Russ Richardson, and Arthur Smith be-
cause of their membership and activities in behalf of the Union, and because they had
designated the Union as their collective-bargaining representative. The General Counsel's
memorandum brief specifically notes that it is not his intention to dispute the Trial
Examiner's dismissal of the allegation of discrimination set forth in paragraph XII of
the complaint.
JOHN STEPP'S FRIENDLY FORD, INC. 1067
After protracted negotiations a collective-bargaining agreement was entered into
between Westward and the Union on March 4, 1962.
On April 24, 1962, John Stepp, acting as agent for a corporation in the process of
formation,2 entered into a buy-sell agreement with Westward, whereby Respondent
agreed to buy certain specified assets of Westward contingent upon the issuance of a
franchise to the Respondent by the Ford Motor Company.
Practically simultaneously Austin Simonds, president of Westward, posted a notice
to all employees of Westward Motors, Inc., advising them of the contemplated sale
of its assets contingent upon the Ford Motor Company's issuing franchises to the
"buyer." The notice further advised the employees that the transfer of the assets
would take place within 48 hours after Ford Motor Company notified Westward
that the "buyer" had been granted the franchises; that as of the time of transfer of
assets Westward would cease doing business in Anchorage as an automobile dealer-
ship; and that all employment by Westward would be terminated at that time.
The Ford Motor Company by telegram officially notified Respondent that it had
been approved for the franchise effective May 10, 1962. Several days prior thereto,
the Union by its secretary-treasurer, Jesse Can, and Organizer Robert Erickson, aware
of the contemplated transfer of assets from Westward to Respondent, called on John
Stepp at his office in Imperial Motors 3 to inform him that the Union represented
the majority of the salesmen working at Westward and of its contract. Stepp called
Robert Krone, his personnel and labor relations man, into the meeting and a dis-
cussion ensued regarding some of the terms of the contract. An attempt was made,
without success, to get Stepp to enter into an agreement regarding the existing contract.
That afternoon, the Union, at Stepp's request, sent him a copy of its contract with
Westward.
Can and Erickson met Stepp again the next morning. They discussed, among other
matters, the hiring of salesmen by Respondent. Stepp said he would take applica-
tions for employment from all Westward employees on May 16. Carr and Erickson
reminded Stepp that the Union represented Westward's sales employees and expected
Respondent to bargain on behalf of the said employees. The meeting concluded with
Stepp advising the union representatives that he would let them know that afternoon
if the franchise was approved or denied. No word was received from Stepp.
In a letter addressed to Stepp dated May 10, 1962, Carr again informed him of
the Union's contract with Westward, noting also that it would be mutually advantage-
ous to resolve the problem of whether the Union has a binding working agreement
with Respondent covering sales personnel, before the contemplated hiring of new
salesmen is consummated. Carr asked for a meeting within 4 days. On May 11
Westward ceased operations; the employees including sales personnel were terminated
as of that date.
The premises were closed from May 11 to the morning of May 19 for repainting,
remodeling,4 and general cleanup. In addition, an inventory of Westward's assets
which were being transferred to Respondent in accordance with the terms of the buy-
sell agreement was completed during this period.
On May 16 Stepp received applications for employment and interviewed most of the
former sales employees of Westward.
On the morning of May 19 Respondent commenced operations as the Ford franchise
dealer in Anchorage, Alaska, on the premises formerly occupied by Westward selling
new Ford and Lincoln-Mercury motor vehicles and used cars. It also services and
repairs motor vehicles and sells parts and equipment. With the exception of the sales
force, Respondent is conducting its business with substantially the same complement
of employees who worked for Westward. The record reveals that as of May 19,
Respondent had in its employ 22 people in all other categories, 19 of whom previously
worked for Westward, including the parts department manager , 1 of the 2 sales
managers, the service manager, the credit manager, and the shop foreman. As to
its sales force, whereas Westward operated with 12 men, Respondent performed this
function with 8, 3 former Westward salesmen and 5 others.
2 The certificate of incorporation to John Stepp's Friendly Ford, Inc., the Respondent
herein, was issued by the Commissioner of Commerce of the State of Alaska on ,May 1, 1962.
The board of directors named in the articles of incorporation to manage the affairs of the
corporation are John C. Stepp, Nell S. MacKay, and Florence M. Slaton. The stock-
holders of the corporation are John Stepp , his wife, and Nell MacKay
' Stepp was also president of Imperial Motors, a Chrysler agency in Anchorage
' Stepp testified one of the results of remodeling was the removal of a gas pump which
was used by Westward to sell gas at retail . Respondent was giving up this part of
Westward's business.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Westward salesmen who were not hired by Respondent, in the company of
Union Representatives Carr and Erickson, also presented themselves on the Respond-
ent's showroom floor when Respondent opened for business. Carr told Stepp the
salesmen were there ready to go to work. Stepp said he did not hire them and they
were all asked to leave the premises. They refused, but did so after the police inter-
vened. A picket line was later set up in front of Respondent's new-car salesroom and
used-car lot across the street. Stepp admitted that subsequent to the opening on
May 19, the Union requested that Respondent bargain with it on behalf of the sales-
men then in its employ. The Respondent refused stating it had no intention to do so,
and that furthermore it was not bound by any contract the Union had with Westward.
The Discharge,of Glen Jones
Glen Jones was employed as a salesman by Westward on or about May 7, 1961.
He was terminated by Westward on May 11, 1962, when it ceased doing business and
its assets were transferred to Respondent. Jones assisted in taking inventory after
May 11. He filed an application for employment as a salesman with Respondent
on May 16, was interviewed by Stepp, and was later told he was hired. Jones was
a member of the Union.
Jones reported for work on May 19, at 8:30 a.m. Jones testified without con-
tradiction that while a sales meeting was in progress, Stepp came into the meeting
and announced that Carr " and a bunch of the boys" were outside. Stepp requested
the salesmen not to talk to anyone, stating he would handle the situation.
Jones' first shift was on the used-car lot across the street from Respondent's show-
room. He went there and contacted a customer to come in to renegotiate a sale
which he had carried over from Westward. Jones completed the transaction with
his customer in Respondent's showroom and on his way back to the used-car lot was
approached by Carr who told Jones the Union would have a picket line around the
place shortly. Carr also told Jones that it was up to him to do whatever he preferred.
Jones in the company of, another salesipan,. Bob Hood, then asked Carr what would
happen to their union membership if -they worked behind the picket line. Carr told
them if they did, it would put them in bad standing as union members , but the decision
was up to them.
Jones and Hood went to lunch. The picket line had been set up while they were
out, and upon their return they asked for permission to cross it in order to talk to
Stepp. Jones learned that Stepp had left the premises and could not be reached by
telephone. Jones then talked with Bob Wiel and Bill Graves, Respondent 's sales
managers, and Dewaine Johnson, the credit manager.
Jones testified undisputedly that he told Wiel, Graves, and Johnson that he was a
union member and therefore could not cross the picket line. He asked for time off
until the dispute was settled. After some discussion among the three supervisors,
Wiel told Jones he could have the week off, but to call into the showroom. Jones
then left the showroom.
On May 21, Jones talked with Wiel on the telephone and inquired how things were
going. Wiel told Jones he talked with Stepp who refused to allow any time off and
that he would either have to come in to work or be terminated. Jones protested
that he would not cross the picket line The conversation ended when Wiel told Jones
the decision was his, to either show up for work or he did not have a job. Jones
has not applied for reinstatement and has not been employed by Respondent since
that date.
Stepp denied that he discharged Jones and testified that no one in his organization
had authority to discharge Jones. However, as head of sales, Wiel was Jones' superior
and his notification to Jones "to show up for work or he did not have a job" was con-
duct clearly within the scope of his duties and apparent authority as sales manager.
Stepp admittedly knew of the May 19 events concerning Jones. He did not do any-
thing to disavow His failure to disavow with full knowledge of what transpired is
an adoption and ratification by Stepp of Wiel's actions, and I so find.
Conclusions
Under well-settled law the Board's certification of the Union in October 1961 as
bargaining representative of the automobile salesmen at Westward would-in the
absence of unusual circumstances-have established the Union as the representative
of that unit of employees for the ensuing year. Ray Brooks v. N L R.B , 348 U S.
96. If, for example , Westward had continued in the automobile business for 12
months from October 13, 1961, the fact that the unit had decreased from 12 to 8
employees and that a turnover of personnel reduced to 3 the number of salesmen
JOHN STEPP'S FRIENDLY FORD, INC. 1069
who had been employed at the time of the certification , would not have affected
the Union's status as bargaining representative . Ray Brooks v. N.L.R.B., supra.
The basic question for resolution herein is whether Respondent is a successor
employer to Westward and is therefore under a duty to bargain collectively , within
the certification year, with the Union as the duly certified representative of the
employees in the appropriate unit. The theory of successorship is that the new
operator of the business falls heir to the responsibilities and liabilities , if not privileges,
of the original employer that stem from the certification . The fundamental approach
and test is whether the "employing industry " remains essentially the same in terms
of such factors as location , mode of operation , equipment , and personnel. It has
been firmly established by a long line of Board decisions sustained and enforced by
.courts of appeals that where the "employing industry " remains essentially the same
after a transfer of -legal ownership the certification continues for its normal operative
period and survives a change in the identity of the employer . See particularly
N.L.R.B. v. Albert Armata and Wire & Sheet Metal Specialty Co., 199 F. 2d 800
,(C.A. 7); N.L.R.B. v. Lunder Shoe Corp. d/b/a Bruce Shoe Co., 211 F. 2d 284
,(C.A. 1); N.L.R.B. v . Hoppes Manufacturing Company, 170 F. 2d 962 (C.A. 6);
N.L.R.B. v. F. G. McFarland et al., d /b/a McFarland & Hullinger , 306 F. 2d 219
(C.A. 10); Colony Materials, Inc., 130 NLRB 105; Firchau Logging Company, Inc.,
126 NLRB 1215 ; Ugite Gas Incorporated , 126 NLRB 494; Investment Building Cafe-
teria, 120 NLRB 38 . The rationale underlying these holdings was early stated by the
Sixth Circuit in its frequently quoted opinion in N.L.R.B. v. Arthur J. Colten, and
Abe J. Coleman d/b/a Kiddie Kover Manufacturing Company, 105 F . 2d 179, 183:
It is the employing industry that is sought to be regulated and brought within
the corrective and remedial provisions of the Act in the interest of industrial
peace. It needs no demonstration that the strife which is sought to be averted
is no less an object of legislative solicitude where contract , death, or operation
of law brings about a change of ownership in the employing agency.
I find no merit in Respondent 's contention set forth in its brief that "it is not
a successor in any sense to Westward for the reason that Simonds' financial and
personal problems would have resulted in the cessation of business by Westward,
whether or not Respondent acquired a franchise from the Ford Motor Company."
Such a statement is purely conjectural and indeed is entirely immaterial to the issue
herein. The fact is that there was a buy-sell agreement between Westward and
Respondent which was fully complied with except in one minor respect ,5 by some
of which terms Respondent was to buy certain named assets of Westward ( new cars,
trucks, used cars, demonstrators , parts, and accessories) and was to continue the
operation of the Ford sales and service agency in Anchorage 6 at the same premises
even though under a different name.
Respondent argues in its brief that there is an absence of evidence in the instant
matter which indicates that Respondent is in any manner connected with Westward,
further that there is no proof that Respondent continued the business of Westward
"in the sense that all of the employees were rehired ," and that the business enterprise
continued without interruption.
There is no dispute and I find that Respondent is a bona fide purchaser from West-
ward and is in nowise associated with Westward . While it is true that Respondent does
6 Although buyer agreed to use his best efforts in securing lease assignments on three
named properties occupied by the seller, the lease assignments were not obtained, but
buyer continued to pay rents for properties and either Respondent or Imperial Motors
occupied them.
G Westward agreed to turn over to Respondent all deposits held by it for future de-
liveries of new vehicles manufactured by various divisions of Ford Motor Company, and
Respondent agreed to accept such deposits and fulfill such orders in accordance with the
terms and conditions listed on seller's order for such vehicle.
Respondent agreed to perform 1,000 mile service and such other warranty work, as
outlined in the manufacturer's warranty and policy manual for owners of vehicles originally
sold by Westward.
Respondent agreed to honor SRI warranties issued to prior vehicle purchasers by West-
ward Likewise Respondent agreed to honor lube coupons issued by Westward to prior
vehicle purchasers by Westward.
Respondent agreed to mail statements for a period of 60 days in the ordinary course of
business, to accounts receivable of seller, to receive money on behalf of seller, receipting
,ame in receipt books provided buyer by seller, and to deposit promptly such moneys in
seller's account at the First National Bank of Anchorage. The first moneys received on
such accounts shall be applied first to the accounts of the seller
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not sell petroleum products which Westward did, that it has relocated its used-car
lot, and that it has ceased operating the body shop, these changes, in my opinion,
are not such "unusual circumstances" affecting the vitality of the certification and I so
find. Nor do I find that the closing down of the premises from May 11 to 19, for
the purpose of cleaning and making the facilities "more representative," to the public as
required by the Ford franchise agreement, was such an "unusual circumstance,"
whereby it can be said that Westward's business was not continued and that Respond-
ent did not carry on the "employing industry." N.L.R.B. v. Birdsall-Stockdale Motor
Company, 208 F. 2d 234 (C.A. 10), relied upon by Respondent is inapposite, for it
involved the question of whether a bona fide successor owner of a business could be
required to remedy unfair labor practices committed by its predecessor when the suc-
cessor had not been joined in the complaint, had received no notice of hearing, and
had had no opportunity to present its defense. In the instant case, charges were filed
and complaint issued against Respondent for its conduct. It is not being asked to
remedy unfair labor practices of a predecessor as in the Birdsall case.
I find no merit in Respondent's further contention "that as a new organization it is
not bound by a certification predicated upon the vote of employees of the former
Ford dealer, only a small percentage of whom remained in the employ of Respondent."
In N.L.R.B. v. Albert Armato and Wire & Sheet Metal Specialty Co., 199 F. 2d
800 (C.A. 7), the case perhaps closest in point, the employer, as here, took over the
business shortly after the union had been certified as the exclusive bargaining rep-
resentative in a unit consisting of some 25 production and maintenance employees.
Armato commenced operations of the plant, employing six Krantz employees. He
thereafter hired two more former employees. After a new corporation was formed
with Armato as one of its directors and as an officer, the new corporation continued'
the same work with an increased force so that its production and maintenance force,
when it refused to meet and bargain with the Union, consisted of 25, composed of
8 former Krantz employees and 17 newcomers. The ratio of retained employees in
the instant situation is 3 out of 8. In concluding that the employer unlawfully refused
to bargain with the Union at a time when the certification had been in effect 10 months,
the court stated:
The crucial question presented is whether the certification of the union, issued by
the Board during Krantz' [the predecessor's] ownership of the business, continued
to be binding on Armato [the successor] and the subsequently formed corpora-
tion. The very nature of a certification of a union as bargaining agent for a
group of employees impels the conclusion that a mere change in employers does
not operate to destroy the effectiveness of the certification. It is an official
pronouncement by the Board that a majority of the employees in a given work
unit desire that a particular organization represent them in their dealings with
their employer. There is no reason to believe that the employees will change their
attitude merely because the identity of their employer has changed.
In Firchau Logging Company, Inc., 126 NLRB 1215, the Board certified the union
as the collective-bargaining representative of the employees engaged in a certain log-
ging operation of the Diamond Gardner Corporation after the logging operations had
ceased for the winter. During the following winter Diamond turned over its logging
operation for the following season to Firchau Diamond had 43 employees in the
bargaining unit when it shut down in November 1958 and Firchau, the following May
when logging operations resumed, had 62 employees in the unit, including appioxi-
mately 20 of the original 43. When logging operations resumed in 1959, Firchau re-
fused to bargain with the union contending that the Union's status as certified bargain-
ing representative did not survive the transfer from Diamond to Firchau. The Board
held that the duty to bargain devolved upon Firchau.
The Respondent in its brief refers to and relies upon N.L R B v. Alamo White
Truck Service, Inc., 273 F. 2d 238 (C A. 5), as standing for the proposition "that a
Board certification is not like a convenant running with the business." The factual
setup in Alamo, unlike the situation herein, reveals that not only was there a
significant change in operations, but as the court emphasized, none of the succcessor's
employees had ever belonged to or voted for the Union there involved It appears
also that from the subsequent decisions of the Fifth Circuit in N.L R B v. Auto
Ventshade, Inc., 276 F. 2d 303, and N L R.B. v. Tempest Shirt Manufacturing Com-
pany, Inc., 285 F. 2d 1, that the decision in Alamo has been sharply confined to its
peculiar facts. I find the Alamo case to be inapposite.
Thus it appears clear from the court's opinions and Board decisions in this area, that
if Westward, during the certification year, reduced the complement of employees in
the certified unit, it would be obligated to continue to bargain. Similarly, if the reduc-
tion came about after Stepp succeeded to Westward's business, the successor would be
obligated to bargain with the certified union. Is there any significant difference created
JOHN STEPP'S FRIENDLY FORD, INC. 1071
from the fact that the reduction in the number of employees in the certified unit took
place at the precise time of the changeover from Westward to Respondents I think
not and so find.
Based upon all of the foregoing and upon the record as a whole, I find that the
employing industry is substantially the same under Respondent as it was under West-
ward; that Respondent is a successor employer; and that there are no circumstances
present such as to release Respondent from its obligations under the certification. In
view thereof I find that by refusing to bargain with the Union on and after May 19,
1962, Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8(a) (5) of the Act.
With regard to the discharge of Jones, the General Counsel contends that when
Jones ceased work and joined the pickets, he became an unfair labor practice
striker and his subsequent termination was in violation of Section 8(a) (3) of the Act.
The Respondent, on the other hand, states that Jones elected not to show up for work
because of the pickets and the decision was Jones'. Moreover, it contends that only
Stepp could discharge Jones and he denies he did.
I have hereinabove found that Respondent violated Section 8(a) (5) of the Act in
that as a successor it refused to recognize and bargain with the Union.
Section 7 of the Act guarantees the right to engage in self-organization, collective
bargaining, and "other concerted activities" for "mutual aid and protection." Strike
activity is concerted activity within the meanng of the section, and the protection
of the Act comprehends strikes in protest against unfair labor practices as well as
strikes in support of economic demands. See N.L.R.B. v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 334. It is also well established that "if men strike in connection
with a current labor dispute their action is not to be construed as a renunciation of
the employment relation and they remain employees for the remedial purposes
specified in the Act." See N.L.R.B. v. MacKay Radio & Telegraph Co., supra "There
is clearly no quitting by them except in the sense that they refused to work as
demanded during the continuance of the strike." I. A. Bentley Lumber Company v.
N.L.R.B., 180 F. 2d 641 (C.A. 5). See also N.L.R.B. v. Gulf Public Service Company,
116 F. 2d 855 (C.A. 5).
Thus, it is clear and I find that when Jones ceased work on May 19, because he
respected the picket line established by his fellow unionists 7 and because Respondent
refused to recognize and bargain with the Union, he became an unfair labor practice
striker.
I have found above, in spite of Stepp's testimony that he was the only one who
could fire Jones, the latter was terminated by Respondent while he was on strike.
I find further that by such action Respondent violated Section 8(a)(1) and (3)
of the Act. See European Cars Ypsilanti, Inc., 136 NLRB 1595; Bernhard Altman
International Corporation, 137 NLRB 229, footnote 1.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that on May 19, 1962, and at all times thereafter, Respondent
has refused to recognize and bargain collectively with Teamsters Local No. 959,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive bargaining representative of Respondent's employees in
an appropriate unit. I therefore shall recommend that Respondent, upon request,
bargain collectively with the Union as such representative and in the event that
an understanding is reached embody such understanding in a signed agreement.
It has also been found that Respondent discriminated in regard to the hire and
tenure of employment of Glen Jones while he was on strike. The Board's practice
is not to award backpay to employees discriminatorily discharged while on strike
7 The courts and the Board have found such activity a protected form of concerted
activity. See N.L.R.B. v. Peter Cailler Kohler Swine Chocolates Company , Inc., 130 F. 2d
503 (CA. 2) ; Cone Brothers Contracting Company, 135 NLRB 108 ; Cyril de Cordova h
Bro., 91 NLRB 1121.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the theory that until it appears that the employees who desire employment have
given up the strike it cannot be established that the loss of pay was conclusively
attributable to the employer's conduct. It will therefore be recommended that
Respondent offer Jones , upon his application , reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, dismissing if necessary any employee hired after May 19, 1962, to replace
him. It shall also be recommended that the Respondent make whole Glen Jones
for any loss of pay he may have suffered, or may suffer by reason of the Respondent's
refusal to reinstate him upon application. In the event that the Respondent does not
offer reinstatement to Glen Jones upon his application, the Respondent shall make
him whole by the payment of a sum of money equal to that which he normally would
have earned as wages during the period beginning 5 days after the date on which
he applies for reinstatement and terminating on the date of the Respondent's offer
of reinstatement, such loss to be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices may be anticipated. The remedy should
be coextensive with this threat. I shall therefore recommend that Respondent cease
and desist from in any manner infringing upon the rights of employees guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. John Stepp 's Friendly Ford , Inc., is an employer within the meaning of Section
2(2) of the Act.
2. Teamsters Local No. 959, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act by discriminating with respect to the hire and tenure of
employee Glen Jones.
4. All automobile salesmen employed by Respondent at its Anchorage, Alaska,
automobile and truck sales establishment , exclusive of all other employees and all
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
5. Teamsters Local No. 959, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, was on October 13, 1961, and at all times
since has been , the exclusive representative of all employees in the aforesaid appro-
priate unit for the purposes of collective bargaining within the meaning of Section
9(a) of the Act. Respondent John Stepp's Friendly Ford, Inc., from May 19, 1962,
and at all times thereafter, by refusing to bargain collectively with Teamsters Local
No. 959, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the this case, it is recommended that the Respondent, John
Stepp's Friendly Ford, Inc., Anchorage, Alaska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Local No. 959, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any
other labor organization of its employees, by discharging employees or by discriminat-
ing in any other manner in regard to hire or tenure of employment or any term or
condition thereof.
(b) Refusing to recognize and bargain collectively with Teamsters Local No. 959,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
JOHN STEPP ' S FRIENDLY FORD , INC . 1073
America, as the exclusive representative of all its employees in the above-described
appropriate unit.
(c) In any other manner interfering with, restraining, or coercing employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist Teamsters Local No. 959, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon application, offer to Glen Jones who went on strike on or about May 19,
1962, reinstatement to his former or substantially equivalent position, and in the
event of failure to do so within 5 days after his application, make him whole
in the manner set forth in the section of the Intermediate Report and Recommended
Order entitled "The Remedy."
(b) Upon request bargain collectively with Teamsters Local No. 959, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as
the exclusive representative of all employees in the aforementioned appropriate
unit, and, if an understanding is reached, embody such understanding in a signed
agreement.
(c) Post at the new-car salesroom and used-car lot in Anchorage, Alaska, copies
of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after being duly signed
by a representative of Respondent, be posted by it immediately upon receipt thereof,
and be maintained for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith .9
I In the event that this Recommended Order be adopted by the Board, the words "Pur-
suant to a Decision and Order" shall be substituted for the words "As Recommended by a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
" In the event that this Recommended Order be 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
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct our labor relations as required by the National Labor
Relations Act, we notify our employees that:
WE WILL NOT discharge or take any other action against any employee because
he engages in a lawful strike or other activity on behalf of Teamsters Local No.
959, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America.
WE WILL offer Glen Jones his old job back if he applies for it, without loss
of any rights or privileges he had in such job.
WE WILL bargain collectively upon request with Teamsters Local No. 959,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, as the bargaining representative of our automobile salesmen em-
ployed at our Anchorage, Alaska, automobile and truck sales establishment,
with respect to wages, hours, and other terms and conditions of employment, and,
if agreement is reached, sign a contract with that Union.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT 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 the said Teamsters Local No. 959, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any and all such activities.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
JOHN STEPP'S FRIENDLY FORD, INC.,
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.
Employees may communicate directly with the Board 's Regional Office, 327
Logan Building, 500 Union Street , Seattle 4, Washington , Telephone No. Mutual
2-3300, Extension 553, if they have any question concerning this notice or compliance
with its provisions.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 8-CA-92963. April. 2,
1963
DECISION AND ORDER
On February 18, 1963, Trial Examiner Sidney D. Goldberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 Inter-
mediate Report and the entire record in the case, including the Re-
spondent's exceptions, and hereby adopts the Trial Examiner's find-
ings , conclusions , and recommendations.'
' Although the Intermediate Report does not state the facts upon which the Trial
Examiner relied in finding that the Respondent is engaged in commerce within the mean-
ing of the Act, we note that the Respondent admitted in its answer that it receives in
excess of $50 , 000 in premiums annually at its principal of ee in New York State from
offices located in other States and that it is engaged in commerce within the meaning of
the Act. We take notice, moreover , of the fact that the Board has frequently assumed
jurisdiction over the Respondent in the past . See, for example, Metropolitan Life In-
surance Company, 141 NLRB 337.
141 NLRB No. 96.