Manner Chevrolet, Inc.

National Labor Relations Board - Board Decisions

May 28, 1969

176 N.L.R.B. 234 (N.L.R.B. 1969)

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manner Chevrolet , Inc. and International Association
of Machinists & Aerospace Workers, AFL-CIO,
Local Lodge 239 and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 231 . Case 19-CA-4047
May 28, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On March 4, 1969, Trial Examiner Henry S.
Sahm issued his Decision in the above-entitled
proceeding , finding that the Respondent had not
engaged in certain unfair labor practices and
dismissing the complaint, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the said Decision, and a
supporting brief, Local 231 of the Teamsters, one of
the two Unions seeking joint representation of the
Respondents' employees, filed a brief in support of
the General Counsel's exceptions , and the
Respondent filed cross-exceptions and a supporting
brief.
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 as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed.
'We agree with the Trial Examiner that this case should be dismissed,
but we rely solely upon a lack of showing of bad-faith refusal to bargain
by the Respondent , rather than the reason given by the Trail Examiner.
The Respondent expressed doubt of the Unions ' majority ; the Unions did
not offer to prove majority until this hearing ; the Respondent engaged in
no misconduct , such as conduct calculated to dissipate majority support
among employees . Sec. 8 (aX5) violations on the basis of a card showing
place a burden upon the General Counsel of showing both valid
authorizations executed by a majority and refusal of recognition in bad
faith. See Strydel , Inc., 156 NLRB 1185, 1187 ; see also Aaron Brothers
Co., 158 NLRB 1077.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S . SAHM , Trial Examiner : The novel question
presented here is whether two unions conducting a joint
organizational campaign , can add together the sum total
of all the authorization cards signed by the employees so
as to establish their status as majority representative
where the employees signed cards for one union or the
other which did not designate both unions to act for them
as joint bargaining agent.
The case was heard at Seattle, Washington, on
November 26, 1968, on a charge filed June 6, 1968, and a
complaint which issued on September 6, 1968. With
respect to the unfair labor practices , the complaint alleges
that since March 8, 1968, the "Unions jointly have
represented a majority of the employees ...." and since
that date Respondent has refused to negotiate with the
"Unions" in violation of Section 8(a)(5) of the Act. Briefs
were filed by the Respondent and the Teamsters Union.'
The Respondent filed an answer alleging that it is
contrary to the law for two unions "to obtain a majority
by way of joining forces and taking the resulting total
obtained thereby in determining whether the required
majority exists ." Moreover , avers Respondent, it has "a
good faith doubt as to whether the purported
representatives" of the two Unions represent a majority of
Respondent's employees.
Upon consideration of the entire record in the case,
there are hereby made the following:
FINDINGS OF FACT
JURISDICTIONAL FINDINGS
The Respondent, a Washington corporation, with its
principal place of business in Ferndale , Washington, is
engaged in the sale , maintenance and repair of new and
used automobiles . During the past year , the Respondent
did a gross volume of business in excess of $500,000 and
products valued in excess of $50 ,000 were shipped to its
Ferndale, Washington, place of business from points
outside the State of Washington. It is found, therefore,
that Respondent is engaged in commerce within the
meaning of the Act and that it would effectuate the
'The representative of the General Counsel failed to file a brief although
it was emphasized to all counsel to do so because of the novel question
involved. As a result , the Trial Examiner does not have the benefit of a
formalized statement based upon the transcribed record giving his analysis
of the facts , applicable law, and the specific reasons for the contentions
made. This is particularly necessary in this proceeding which involves both
a novel question of law and an unorthodox bargaining approach.
Moreover , it is strange, indeed , for one to investigate the case , interview
witnesses, prepare for hearing , present the case , argue it and fight for it
before and during the hearing but when the issue reaches climax on the
battlefield of decision , and after the evidence is in and the hearing is at an
end, to fold one's tent of advocacy by neglecting to file a brief and silently
steal away leaving the Trial Examiner to surmise , in some instances, what
are the theories upon which the case is being tried , as well as the specific
contentions . This is particularly irksome in those situations where litigants
not only fail to advance legal theories and evaluations of the facts at the
hearing, as well as the remedies sought , and also neglect to file briefs after
the hearing, but wait until the Trial Examiner finds adversely to them in
his Decision and then , for the first time, propound thew factual concepts
and legal theories to the Board in their bill of exceptions and brief filed
with the Board . If their contentions had been argued in their briefs, the
Trial Examiner would have been, at least, afforded the opportunity to
discuss these contentions in his Decision , which , in turn , as a matter of
sound administrative law principles , would facilitate both Board and
judicial review. Such steps are conducive to establishing a well-laid
foundation upon which the structure of argument can be erected and the
pinnacle of advocacy sturdily built . As was stated by the Court of Appeals
for the Ninth Circuit in Carcade Employers ' Assn . v. N.L.R. B.. 440 F.2d
490. "The function of the National Labor Relations Board is best served if
parties put all their claims and desired remedies before it ." Member
Fanning in an address before the New Orleans Chapter of the Federal Bar
Association , on October 19, 1959 , stated:
... The briefs of counsel play nearly as large a part in putting flesh on a
statute as the decisions of the judges. Careful and incisive analysis by
counsel is the foundation of sound decisions . The more intricate the
statute , the more important such analysis is to just decisions.
176 NLRB No. 32
MANNER CHEVROLET, INC.
policies of the Act to assert jurisdiction herein.
THE LABOR ORGANIZATIONS INVOLVED
The Teamsters and Machinists Unions are labor
organizations within the meaning of Section 2(5) of the
Act.
The Alleged Unfair Labor Practices
The Machinists and Teamsters Unions agreed in
January 1968, to undertake a joint organizational
campaign of all the nonunion automobile dealers in
Whatcom County, Washington, and the Respondent's
employees in particular. It was further agreed that the
Teamsters would have "jurisdiction" over Respondent's
lubrication, wash and parts employees and the Machinists
Union "would represent" the mechanics, body and fender
employees. The employees of Respondent's repair shop
were contacted and five of them attended a meeting on
February 8 at the offices of the Machinists Union.' The
following day, February 9, the following named employees
of Respondent signed Machinists "Membership
Application" cards: Hugh Hendrix, Robert LaPlant and
Douglas McClimans. On February 9, 1968, John Crnich
and Hugh Hendrix signed separate, identical papers on
Teamsters Union letterheads authorizing that Union "to
represent me and in my behalf to negotiate and conclude
all agreements as to hours of labor, wages and other
employment conditions."3 On June 4, 1968, a Machinists
card was signed by Mike Lindstrom.4 These "Membership
Application" cards of the Machinists Union state that the
signer applies for membership in the Machinists Union
and tenders $10 therefor and also authorizes the Union
"to act as my representative for collective bargaining."
On March 8, 1968, the following identical letters on the
letterheads of both Local 239 of the Machinists Union
and Local 231 of the Teamsters Union were sent to
Respondent:'
Mr. Dale Manner, Pres.
Manner Chevrolet Inc.
Ferndale, Washington 98248
Gentleman:
This letter will serve to advise that the undersigned
representatives of the International Association of
Machinists Local Lodge 239, and the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers Local 231, Bellingham, Washington;
represent the employees of your Company in units
appropriate for bargaining and therefore wish to
arrange a meeting with you or your representatives for
the purpose of negotiating a Collective Bargaining
Agreement covering wages , hours , and working
conditions on behalf of those employees who are
working within the jurisdiction of the above mentioned
labor organizations.
'Manner , president of Respondent, testified , in response to a question by
the General Counsel 's representative , that on March 8, 1968, there were
seven employees in the unit described in the complaint.
'Copies of these authorizations are attached to this Decision as
"Appendix A ." (Omitted from publication.]
'Armstrong , a Machinists Union official , testified as follows with respect
to obtaining Lindstrom 's signature : " It was a later effort . This young man
came to work there after we originally started our program, and he came
into the office to seek membership with us."
'G.C. Exhs . 4 and 6.
235
In connection with the above request we are prepared to
meet any day during the week of March 11, 1968;
however for purposes of establishing a definite time we
are suggesting Wednesday, March 13th, at 10:00 A.M.
in your company offices in Ferndale, Washington. In
the event you wish an alternate time or place, please
call one of the telephone numbers listed below.
Wally Armstrong
/s/ Wally Armstrong
Machinists Lodge 239
733-8520
Marvin Eggert
/s/ Marvin Eggert
Teamsters Local 231
734-7780
No written reply was received to this letter but
Respondent's president agreed to meet with the two
Unions' officials on March 13. However, he never met
with them. The Unions again wrote to Respondent on
March 15, and asked for a meeting on March 21, to
which Manner agreed. On the morning they were to meet,
Manner notified the Machinists and Teamsters Unions'
offices that he would be unable to attend the meeting.
During the month of May, the Washington Department of
Labor and Industry offered its good offices regarding this
matter but to no avail.
On June 7, 1968, representatives of the Machinists and
Teamsters went to Respondent's place of business
unannounced and spoke to Charles Manner, president of
the Respondent. The union officials claimed they
represented a majority of his shop employees and stated
that they desired to meet with him for the eventual
purpose of negotiating a collective- bargaining agreement.
The Unions did not offer to show Manner the signed
authorization cards of his employees which they then had
in their possession when they met with him. Each Union
gave Manner copies of their proposed contracts for him to
consider .' Manner , in response to a question from the
General Counsel's representative, testified that the union
officials did not show him any authorization cards signed
by his employees. He testified that he "stated on several
occasions that my people didn't want to join, and they
didn 't give me any proof that they did or anything else. I
didn't ask for it, but assumed they would." The results of
this confrontation were inconclusive.
Manner testified that one of his employees, Van
Dantop, had informed him that if the repair shop "went
union " he would quit his job and another employee stated
to him "he wasn 't interested at all." Employee Yost,
continues Manner 's testimony, "told me that one of the
union people . . . had spent two or three evenings in his
home and finally he [Yost] had to ask him to leave."
"John Crnich," testified Manners, "was out on sick leave
when all this went about and when the doctor gave him
the O.K. to come back to work, he [said he] would come
back to work only he was afraid if he did there, where his
wife works, might be picketed because she belongs to a
union ." At the date of the hearing, McClimans and
LaPlant, two repair shop employees, had gone to work for
another Chevrolet dealer and four employees continued to
work after picketing commenced, of whom one has since
retired. Hugh Hendrix, who signed both a Machinists card
and the Teamsters authorization, has since died.7
'Reap. Exhs . I and 2.
'G. C. Exhs. 9 and 14 . See fn. 21.
236 DECISIONS OF NATIONAL
On June 17, both Unions established a picket line
around Respondent's place of business which was in effect
at the time of the hearing. It is uncontradicted that none
of Respondent's employees who signed union
authorization cards were ever observed on the picket line.'
Immediately thereafter, Attorney Rhea was engaged by
Respondent as its counsel.
On June 24, a letter on Local 239 of the Machinists
Union letterhead, signed by both Unions, was sent to
Attorney Rhea which reads as follows:
Dear Sir:
This letter will confirm our conversation by
telephone on this date in which we discussed the
problem and a possible solution to the matter involving
our client , Manner Chevrolet, of Ferndale, and the
Whatcom County Automotive Council, jointly formed
by Machinists Lodge 239, and Teamsters Local 231.
It has been our objective from the beginning to settle
our problem in a peaceful fashion whether through
negotiations , conciliation or an election procedure. We
believe the record will substantiate this position and we
are enclosing for your information copies of
correspondence between the parties involved.
In regard to the employees represented by the
Automotive Council we claim a majority of the workers
in the WORK'JURISDICTION outline as enclosed.
We are confident that if you could use your office to
arrange a meeting with your client, and the
undersigned, that some satisfactory ground rules could
be formulated to effect a settlement of our mutual
problem.
At this date we have not contacted all our members
involved to secure their permission to divulge their
names . However, we will have them available at any
meeting you may set up.
Whatcom County Automotive Council
Machinists Lodge 239
Teamsters Local 231
enc.
Attorney Rhea testified as follows:
THE WITNESS: Mr. Manner came to me either the
day the picket line was put at his place or certainly the
day following. I think it was the day of it. Later, this
has to be my best estimate, two to three days later, Mr.
Eggert called me and asked if I was representing Mr.
Manner. My reply was, "Yes, Mr. Manner has been in
to see me." Mr. Eggert then asked if we could arrange
a meeting. I said, "well, perhaps and perhaps not", and
the conversation was inconclusive. There was a later
call from Mr. Eggert in which he, then, asked me the
same question and I said, "Do you have authorization
cards?" His reply was, "We do". I said, "Could we see
them?" He was very hesitant. I said, "May we have the
names of them", and there was some rather undecided
response from him culminating in his statement, "Yes,
I will give you the names". I then waited for them
'In Seven Up Bottling Company, 92 NLRB 1622, 1623 , it was held that
where a majority of respondent's employees picketed his plant , this was
proof that the union represented a majority of his employees . Conversely,
it would seem that if none of the employees picket , evenhanded justice
would require the finding that the Union did not represent a majority of
the Respondent 's employees.
LABOR RELATIONS BOARD
because I was very concerned with that as a completely
key issue as to the validity of all that had been done
and was going to be done. Quite considerable time
passed and I then received a communication from him
in which he indicated that they had not gotten consents
to do that. At no time, in any conversation with Mr.
Eggert from the first to the present, did I hear him
offer to display the authorization cards to • a
disinterested third party. That is all of my testimony.
TRIAL EXAMINER: Now, do I understand you to say
that when you asked him to display the authorization
cards, that you stated or it was understood or agreed
that it would be to a disinterested third party?
THE WITNESS:
No. I asked first for either Mr. Manner or myself to
see them. Then was the reply that yes, he would get me
the names . Not the cards, the names. Then, instead of
that being carried out ultimately, the word was
communicated to me that they had not gotten consent
to doing so . Then say, as a general point in testimony,
Mr. Examiner, that at no time from the first contact
from Mr. Eggert to the present, has any representative
of either of the complainant unions offered to display
the authorization cards to a disinterested third party.
TRIAL EXAMINER: Now, you testified something
about an offer or rather you requested, then as an
alternative, that the names be shown.
THE WITNESS: Yes
TRIAL EXAMINER: Was that to yourself or to a third
party?
THE WITNESS: I want to be clear to that, the third
party was Mr. Manner. It was to be either me or Mr.
Manner.
Marvin K. Eggert, secretary-treasurer of the Teamsters
Union, testified on cross-examination, that he spoke to
Attorney Rhea and that when Rhea asked him to produce
the signed authorization cards or a list of the names of
Respondent's employees who signed the cards that he
offered to show them. Later in his testimony, however, he
stated he did not recall offering to provide the names of
those who signed cards, stating ". . I wouldn't have
offered that." At another point in his testimony, Eggert
admitted assuring Rhea that he would supply such a list
of names of the men who had signed the authorization
cards, " Based on certain relative circumstances, yes."
Then he contradicted himself by denying that he agreed to
supply such a list stating "All things being equal, no, not
a list of the names ." He then testified he agreed to show
the bargaining cards to "a disinterested individual" but
acknowledged he had never named such a disinterested
individual. When he was again asked if he had ever
offered to supply a list of the names of the employees who
had signed union cards, he was evasive and equivocal.
Finally, he insisted he offered to show the signed
authorization cards to both Manner and Rhea. Such a
farrago of testimony leads to the conclusion that a finding
on this facet of the case should not be based on Eggert's
testimony which shows it is contradictory and inconsistent,
and that he is an unreliable witness. Furthermore, Manner
testified the Union's officials never offered to show him,
nor a disinterested third party, the signed authorization
cards.
MANNER CHEVROLET, INC. 237
Issue
In summary, it appears that during a joint
organizational campaign, three employees signed
Machinists cards, one signed for the Teamsters and one
signed both Machinists' and Teamsters' authorizations. 9
Undeniably, over 50 percent of the seven employees in the
unit, on March 8, 1968, did sign cards but there is a
problem because there is no clear majority for either the
Machinists or Teamsters Unions. The two Unions,
however, want to bargain with the Respondent as a joint
representative of his repair shop employees. The question
then arises as to whether or not the authorizations of the
individual Unions are a legitimate authorization of the
two Unions acting together as a single joint representative.
Discussion and Conclusion
This situation first must be distinguished from
situations in which two or more unions are attempting to
secure the requisite percentage of employees to sign
authorization cards so that an election can be held. Since
the very purpose of these cards is to show interest in the
Union, it is not crucial whether interest is shown in more
than one. The very purpose of the election is to determine
the single representative.10 The instant problem also differs
from the situation which arises when the union designated
on the authorization cards is different from, but affiliated
with, the union seeking to bargain. A designation on an
authorization card is a valid designation of a union
affiliated with the one named on the card."
In 1959, the Board faced the problem related to the one
involved here in Super Sagless Spring Corporation.' 2 In
Sagless, 47 employees, a majority of the employees in the
unit, signed authorization cards for the Upholsterers'
International Union and one signed a card for the
Teamsters. The Trial Examiner did not believe the
signature on the Teamsters card to be authentic so it was
rejected as evidence of authorization. Nevertheless, the
Upholsterers and the Teamsters proposed to be a joint
representative. Assuming majority status of the
Upholsterers' Union, the Trial Examiner held that "the
written union authorization cards signed by employees of
the Respondent did not authorize the two labor
organizations herein involved to...act for them as a joint
representative for the purposes of collective bargaining.""
Although the Board adopted this portion of the Trial
Examiner's decision, its impact is weakened somewhat by
the note that one of the members of the panel would also
dismiss the 8(a)(5) allegation because the union did not
press its demand for recognition sufficiently to impose a
duty to bargain.'
The issue was delineated a bit more clearly in Leroy
Stovesand Motor Co." In this case twelve employees
signed cards of the Machinists Union, thinking that this
union would represent them, and two signed Teamsters'
cards without realizing it. At the time of signing, none of
the employees knew that the Machinists and the
Teamsters wanted to represent them jointly. The Trial
Examiner stated that when two labor organizations claim
to be joint representatives, there must be clear proof that
a majority of the employees in the unit designated both
unions to represent them on a joint basis. This is
necessary to prevent two or more unions from conspiring
to obtain a majority where no single union could get one.
"A majority joint representation requires a vote on this
specific situation."" The Trial Examiner dismissed the
8(a)(5) allegation and the Board adopted his finding."
The most recent and clear-cut cases dealing with the
issue here are National Heating Co.," and Raymond
Buick, Inc." In National Heating, Respondent's defense
rested principally on its contention that the employees did
not validly designate the Pipe Fitters Union and the Sheet
Metal Workers Union to act as their joint bargaining
representative. In a unit assumed arguendo to consist of
19 employees, 5 signed cards authorizing the Pipe Fitters
Union to act as sole bargaining agent, and 5 signed
authorization cards for the Sheet Metal Workers Union.
Hence, a majority of the employees in the unit did sign
authorization cards, albeit for two individual unions. The
following is a pertinent part of the Trial Examiner's
Decision, adopted by the Board:
There remains the issue as to whether Respondent's
employees in fact designated the two Unions here
involved to act as their joint collective bargaining
representative. This question, it seems to me, must
quite clearly be answered in the negative. Thus, the face
of the respective cards signed by the employees
explicitly authorized only the Union designated thereon
to act as the bargaining agent. There is no evidence
whatsoever to indicate that the employees were ever
told that the signing of a card for either Union would
also be considered as authorization for both Unions to
act as the joint collective bargaining agent.
Accordingly, since the evidence does not establish that
the employees authorized the Unions to act for them as
the joint bargaining representative, or that such was
their intention, I shall recommend that the alleged
Section 8(a)(5) allegation in the complaint be dismissed.20
In Raymond Buick, supra, two unions demanded
recognition from the employer but neither union could
show a majority status without relying on cards of three
employees who had signed for both unions. The Board
stated: "As these cards may not be considered reliable
evidence of the signers' selection of either union as their
exclusive bargaining agent, neither [union] ever established
their status as majority representative."
Hence, it would appear that the Raymond Buick and
National Heating cases would be dispositive of the issue
presented here, and that the alleged designation of the
'Lindstrom, who signed a Machinists card on June 4, 1968, would make
a total of eight in the unit. See fn. 4.
"See, e .g., Mid-South Packers, inc., 120 NLRB 495; The Bally
Department Stores Co., 120 NLRB 1239; Vanadium Corporation of
America, 117 NLRB 1390.
See e .g., New Hotel Monteleone , 127 NLRB 1092; Up-to-Date
Laundry, inc., 124 NLRB 247; L. C. Cassidy & Son , Inc.. 171 NLRB No.
136.
"125 NLRB 1214.
"125 NLRB at 1237.
"125 NLRB at 1215, fn. 4.
"127 NLRB 19.
"127 NLRB at 25.
"See I. Posner , Inc., 133 NLRB 1573, 1575, where 20 employees had
signed cards of two locals and the Board held that a majority had not been
shown.
"167 NLRB No. 73.
"173 NLRB No. 199
"in Alton Box Board Company, 173 NLRB No. 105, 80 union
authorization cards were signed but 25 of the employees had signed both
the cards and a "petition opposing recognition of the Union." The Trial
Examiner held that these 25 employees' authorization cards could not be
counted in determining whether the Union represented a majority of the
employees.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinists and the Teamsters Unions in this situation
would not be a valid designation of them as a joint
representative 21 Upon the record as a whole , it is found
that the General Counsel has failed to sustain his burden
of establishing by a fair preponderance of substantial
credible evidence that the two Unions represented a
majority of the employees and that Respondent's failure
to recognize and bargain with the Unions was a violation
of Section 8(a)(5) of the Act " Accordingly , the complaint
is dismissed 23
RECOMMENDED ORDER
I hereby recommend that the complaint in this case be,
and it hereby is , dismissed
"Heidrix signed both Machinists and Teamsters authorizations which
show the union officials knew the proper way to have the employees
indicate they intended to have both Unions jointly represent them The
employer is free at all tunes to demand proof of the Unions majority
status before the duty to bargain arises This, the Charging Unions failed
to do Such conduct removed the possibility of meaningful bargaining and
thus precluded the existence of a situation in which the Respondent's own
good faith could be tested If it cannot be tested , its absence can hardly be
found Edward Fields Inc v N L R B 325 F 2d 754 761 (C A 2) Times
Publishing Company 72 NLRB 676 683
"Respondents counsel stated at the outset of the hearing that
'respondent is still ready to hold the consent election as set forth in the
previous letter to the parties and the Board dated October 8 1968
"All authorities cited by the Teamsters Union s counsel in his brief have
been carefully considered and it is not believed that holdings in those cases
require a finding contrary to the conclusions reached herein However the
Trial Examiner rinds no occasion for citing or distinguishing the cited cases
because it is believed that the controlling reasons and the authority for this
decision have been sufficiently discussed Moreover counsel 's contentions
and legal theory are based on an interpretation of the facts in this
proceeding which are significantly different than the Trial Examiner s and
since the applicability of precedent necessarily depends on one s view of the
facts, no purpose would be served by discussing all the cases he cited
It