Mole Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

May 5, 1965

152 N.L.R.B. 407 (N.L.R.B. 1965)

MOLE OLDSMOBILE, INC. 407
term or condition of employment, except to the extent pemitted by the proviso to
Section 8(a)(3) of the Act, as modified by the Labor -Management and Dis-
closure Act of 1959.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL jointly and severally with Milk Drivers' Union, Local 753, Interna-
tional Brotherhood of Teamsters Chauffeurs , Warehousemen & Helpers of
America, make whole Al Cantu for loss of pay suffered as a result of discrimina-
tion against him.
WE WILL reinstate Al Cantu to his former position without prejudice to his
seniority or other rights and privileges he previously enjoyed.
1. ZIAK & SONS, 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, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572 , if they have any questions concerning this notice or com-
pliance with its provisions.
Mole Oldsmobile, Inc. and Local 868, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Ind. Case No. 29-CA-41 (formerly Case No. 2-CA-
9675). May 5,1965
DECISION AND ORDER
On August 14, 1964, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the General Counsel filed excep-
tions as the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner except as modified herein.2
Ito adopting the Trial Examiner' s conclusion that Respondent violated Section 8(a) (5)
of the Act, we rely additionally on the fact, as supported by the record, that Respondent
Is a successor to Murray Oldsmobile , Inc. See Rohhk, Inc, 145 NLRB 1236, Witham
Buck, Inc, 139 NLRB 1209.
2 The Respondent 's request for oral argument Is hereby denied as the record , including
the exceptions and briefs , adequately presents the issues and the positions of the parties.
152 NLRB No. 36.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Mole
Oldsmobile, Inc., its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, with
the following modification :
Add the following as paragraph 2(b), the present paragraph 2(b)
and those subsequent thereto being consecutively relettered:
"(b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their 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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 7, 1963,' by Local 868, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, herein called
Local 868, against Mole Oldsmobile, herein called Mole Oldsmobile, or the Respond-
ent, the General Counsel issued a complaint alleging that Respondent committed
unfair labor practices in violation of Section 8(a) (1), (3), and (5) of the Act.
The answer of the Respondent denied the commission of unfair labor, practices.
This proceeding, with the `General Counsel and the Respondent represented, was
heard before Trial Examiner John F. Funke at New York, New York, on May 25,
1964, and at the conclusion of the hearing the General Counsel engaged in oral argu-
ment. The parties indicated that they would not file briefs.2
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent maintains a place of business at Amityville, Long Island, New York,
where it is engaged in the sale and distribution of new and used automobiles. During
a representative year the Respondent derives an income in excess of $500,000 from
its operations. Respondent has, in a representative year, purchased automobiles
valued in excess of $50,000 which were shipped to it from places outside the State of
New York.
Respondent is an employer engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 868 is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Prior to November 21, 1963,3 the business, now operated by Respondent, was
operated by Murray Ross and was known as Murray Oldsmobile. On or about
October 4 an agreement was entered into for the purchase and sale of Murray Olds-
'A first amended charge was filed November 27, 1963, and a second amended charge
was filed April 8, 1964.
2 All motions upon which decision was reserved at the hearing are disposed of in
accordance with the findings and conclusions of this Decision.
3 Unless otherwise stated all dates refer to 1963.
MOLE OLDSMOBILE, INC. 409
mobile to George E. Mole, Jr, contingent upon the approval of General Motors. On
November 21 the sale of the business assets of Murray Oldsmobile was consummated
and the real property was leased to Respondent.
Prior to the consummation of the sale a petition for an election among the sales
personnel was filed by Local 868 with the National Labor Relations Board in Case
No. 2-RC-12979 and on October 25 Local 868 was designated as collective-bargaining
agent by the three employees in the unit. (Dale, Witherspoon, and Anson )
Leonard Shifrin, business agent for Local 868, testified that sometime in November
he called the attorney for Murray Oldsmobile for a bargaining meeting and was told
by the attorney that Murray was being sold but the attorney (identified as Seltzer)
agreed to meet with Shifrin on November 20. Shifrin went to the agency on Novem-
ber 20 and first met Murray Ross who told him the business was being sold. Later he
met Seltzer who told him he would have to negotiate with the new owner, Mole.
About 4 p.m. Mole appeared at the agency and Shifrin made an appointment to meet
with him on Friday, November 22. The next day, however, Shifrin was informed by
his office that the salesmen had called to tell Shifrin they had been discharged that
day, Thursday, November 21, and would meet him at the agency on Friday morning.
Shifrin met the men and then met with Mole who told him that he had no union prob-
lems and that Shifrin's problems were with Murray Oldsmobile.4 Shifrin then talked
to Ozias Kaufman, Mole's attorney, who advised Shifrin to file a charge with the
National Labor Relations Board. Shifrin told the salesmen there was nothing to do
but establish a picket line. Raymond Garson, sales manager for Murray Oldsmobile,
testified that he was asked to continue as sales manager for the Respondent and did
continue as manager for a period of time. He was hired by Mole on November 21
immediately after the closing of the sale. At approximately the same time the three
salesmen, Andy Anson, Joe Dale, and Joe Witherspoon, were notified by Murray
Ross that they were discharged. They were not rehired by Mole. Garson testified
that some time after the election of October 25 he had a conversation with the sales-
men in which he tried, unsuccessfully, to induce them to quit Local 868 and that he
reported this conversation to Mole who told him he would "fight them " 5
George Mole testified that prior to the sale of Murray Oldsmobile to the Respondent
he had learned that Amalgamated Local Union No. 355 represented the mechanics
and that he had agreed with Ross that he would assume the contract between Amal-
gamated and Murray Oldsmobile.6 At this time he also knew that Murray Olds-
mobile was obligated to bargain with Local 868 although he did not know that Local
868 had been certified by the Board.7 As a condition to the purchase of the business
and with full knowledge of the situation he reached agreement with Ross that Ross
would discharge the salesmen while at the same time he would accept the contract
with Amalgamated.8 One of Mole's given reasons for discontinuing the employment
of the salesmen was that he wished to employ salesmen who had worked for him 5
years previously at another agency. While Mole stated that he wished to establish
an "image of integrity" for the agency he nevertheless admitted on cross-examination
that he retained Garson in his employ as sales manager despite the fact he knew that
Garson had a bad reputation in the automobile sales industry at the time he hired him.
(There is no evidence that Anson, Dale, and Witherspoon did not enjoy reputations
as honest and competent salesmen.) Mole also admitted that a motivation for dis-
charging the salesmen was the fact that he would not "be troubled or bothered by
union activity."
I At the time Mole disavowed any responsibility for bargaining with Local 868 he had
already agreed with Ross to assume the contract between Murray Oldsmobile and Amal-
gamated Local Union No 355 which covered the mechanics employed by Murray Olds-
mobile (General Counsel's Exhibit No 3.)
5 While Mole denied that he told Garson that he wanted no part of Local 868, he did
not deny this statement.
"Mole testified that before the formal closing of sale he had a meeting with Talco,
president of Amalgamated Local 355, and Ross in which it was indicated to him that he
might have labor trouble if he did not assume the contract. (Talco has been referred
to in a prior Board proceeding involving an automobile agency on Long Island. See
Branch Motors, Inc , 129 NLRB 906, 909 )
7 Mole admitted receiving a telegram from Local 868 some time after the closing of sale
stating that it represented a majority of the employees and requesting an appointment
for the purpose of negotiating a contact.
BDespite the efforts of his counsel ( and I am not suggesting they were improper) to
have Mole retreat from this admission I find that this was made a condition of the sale.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anson and Witherspoon testified that they were paid off on November 21 by
Murray Ross and told they were discharged. The next day they returned to the
agency with Shifrin who went inside for about 45 minutes, returned and told them
there was nothing to do but picket .9 Witherspoon also testified that at a negotiating
meeting held on November 16 Murray Ross' attorney told them that the business was
being sold and that they would have to deal with the new owner.
On facts which I find are largely uncontroverted, I make the following findings:
(1) Local 868 was certified as the exclusive bargaining representative on November
4 in a unit deemed appropriate for the purposes of collective bargaining under Section
8(a) (5) of the Act. This unit was:
All new and used car salesmen employed at the Amityville plant, exclusive of all
office clerical employees, shop and parts employees, watchmen, guards and all super-
visors, as defined in the Act.10
(2) Local 868 by a telegram dated November 21 made a proper request for "an
appointment for the purpose of negotiating a collective bargaining agreement." 11
(3) On November 22 Mole told Business Agent Shifrin of Local 868 that he would
not engage in collective bargaining.
(4) Respondent, acting through Murray Ross, discharged employees Andy Anson,
Joe Dale, and Joe Witherspoon at or immediately prior to the closing of the sale on
November 21 12 because they were members of Local 868 and refused to continue
their employment with Mole Oldsmobile because of such membership.
(5) On November 21 and at the time of the closing of the sale, Local 868 repre-
sented a majority of the employees in the unit certified by the National Labor Rela-
tions Board as appropriate for the purposes of collective bargaining and the certifica-
tion of the Board issued November 4 was still in full force and effect.
In view of these findings of fact I find it unnecessary to dispose of the successorship
issue so ably argued by the General Counsel. Since I find that the discharges of
Anson, Dale, and Witherspoon were made by Ross acting as agent for Mole Olds-
mobile, Inc., and that the purpose of the discharge was to destroy the majority repre-
sentation of Local 868 in an appropriate unit, I find the discharges violated Section
8(a)(3) and (1) of the Act. Since. had it not been for these unlawful discharges,
Respondent would have been obligated to bargain with Local 868 as the exclusive
representative of its employees, I find its refusal a violation of Section 8(a)(5) and
(1) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It shall be recommended that Respondent offer full and immediate reinstatement
to their former position as salesmen to Andy Anson, Joe Dale, and Joe Witherspoon
without prejudice to their seniority and other rights and privileges and make them
whole for any loss of pay they may have suffered in accordance with the Woolworth 13
formula and with interest according to Isis.14
It shall also be recommended that Respondent, upon request, bargain collectively
with Local 868 as the exclusive representative of the employees in the unit found
appropriate herein with respect to wages, rates of pay, hours, and other terms and
conditions of employment.
Upon the basis of the foregoing facts, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. Local 868 is a labor organization within the meaning of the Act.
3. By refusing to bargain with Local 868 as the exclusive representative of its
employees in the unit found appropriate herein the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of
the Act.
6 It was stipulated that had Dale been called he would have testified to the same effect.
10 So stipulated at the hearing. (General Counsel's Exhibit No. 2.)
11 Respondent's Exhibit No 1.
12I find it unnecessary to consider the niceties of the transfer of title where the evidence
so clearly establishes that Ross and Mole acted in concert to violate the Act.
13 F. W Woolworth Company, 90 NLRB 289.
1s IM Plumbing & Heating Co , 138 NLRB 716.
MOLE OLDSMOBILE, INC. 411
4. By discriminating against Andy Anson, Joe Dale, and Joe Witherspoon in regard
to their hire and tenure of employment to discourage union membership Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 ( a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in this case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is hereby ordered that the Respondent, Mole Oldsmobile, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against Andy Anson, Joe Dale, and Joe Witherspoon in regard
to their hire and tenure of employment to discourage membership in Local 868 or any
other labor organization.
(b) Refusing to bargain collectively with Local 868 as the exclusive bargaining
agent of all of its employees in the previously described appropriate unit.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2 Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer to Andy Anson, Joe Dale, and Joe Witherspoon immediate and full rein-
statement to their former positions as salesmen for the agency formerly known as
Murray Oldsmobile, Inc., and now known as Mole Oldsmobile, Inc., without prejudice
to their seniority and other rights and privileges and make each of them whole for any
loss of pay he may have suffered by reason of Respondent's discrimination against
him as set forth in the section of this Decision entitled "The Remedy."
(b) Upon request, bargain collectively with Local 868 as the exclusive bargaining
representative of all its employees in the previously described appropriate unit.
(c) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records necessary for the com-
putation of the amount of backpay due under these Recommendations.
(d) Post at its Amityville, Long Island, place of business copies of the attached
notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional
Director for Region 2, shall, after being duly signed by Respondent's authorized
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it 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 to insure that said notices are not altered, defaced, or
covered by other material.
(e) Notify the Regional Director for Region 2, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps have been taken
to comply herewith.16
15 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court
of Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order"
16 If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify the Regional Director for Region 2, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
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, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 868, International Brotherhood
of Teamsters, Warehousemen and Helpers of America, Ind., or in any other
labor organization, by discharging or refusing to hire them or in any other
manner discriminating against them or any other employee in regard to tenure
of employment.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Andy Anson , Joe Dale , and Joe Witherspoon immediate and
full reinstatement to their former positions as salesmen without prejudice to their
seniority and other rights and privileges and make each of them whole for any
loss of pay he may have suffered by reason of our discrimination against him.
WE WILL NOT refuse to bargain collectively with Local 868, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of our employees in a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , or other terms and conditions of employment . The appropriate
unit is:
All new and used car salesmen employed at the Amityville plant, exclusive
of all office clerical employees , shop and parts employees , watchmen, guards,
and all supervisors , as defined by the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
employees in the exercise of their rights 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 collective
bargaining or other mutual aid or protection , or to refrain from engaging in 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 authorized in Section
8(a)(3) of the Act.
All our employees are free to become, remain , or to refrain from becoming or
remaining , members of the above-named union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act, as amended.
MOLE OLDSMOBILE, INC.,
Employer.
Dated------------------- By--------------------------------------------
(Represeatative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon applica-
tion 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.
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, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tions concerning this notice or compliance with its provisions.
Associated Beer Depots , Inc. and Chauffeurs , Teamsters and
Helpers "General" Union , Local 200 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 30-CA-62 (formerly 13-CA-6399). May 5,
1965
DECISION AND ORDER
On February 17, 1965, Trial Examiner John P. von Rohr issued his
Decision 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 Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the Charging Party filed an answering brief.
152 NLRB No. 44.