Stackhouse Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1963

140 N.L.R.B. 1239 (N.L.R.B. 1963)

STACKHOUSE OLDSMOBILE, INC. 1239
(f) The allegations of the complaint , to the extent that they allege that Harry
Flowers was discriminatorily discharged in violation of Section 8(a)(3) and (1)
of the Act, be dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees with respect to their membership
in, sympathies for, or other concerted activities on behalf of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, General Teamsters, Chauffeurs, Warehousemen and Helpers Local 428, or
any other labor organization.
WE WILL NOT threaten our employees with the termination of, or terminate,
our trucking operations because our employees select International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General
Teamsters, Chauffeurs, Warehousemen and Helpers, Local 428, or any other
union as their bargaining agent.
WE WILL NOT discharge or otherwise discriminate against our employees be-
cause they give support or assistance to International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, General Teamsters,
Chauffeurs, Warehousemen and Helpers, Local 428, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees from exercising their right to form, join, or assist a union, to
bargain with us through a representative of their own choice, and to engage
in other concerted activities for their mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a union, as provided in
the National Labor Relations Act.
WE WILL offer to Alvin Ross immediate and full reinstatement to his former
or substantially equivalent job without prejudice to his seniority or other rights
and privileges.
WE WILL make whole Alvin Ross, Elmer T. McDonald, William Nicholson,
John Nelson, and Bob Risdon for any loss of pay suffered by them as a result
of their discharge or layoff by us.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any umon, except to the extent above referred to.
ZIMNOx COAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Stackhouse Oldsmobile , Inc. and International Association of
Machinists , Local Lodge 1519, AFL-CIO. Case No. 8-CA-2800.
February 13, 19G3
DECISION AND ORDER
On September 26, 1962, Trial Examiner Leo F. Lightner 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
140 NLRB No. 117.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Chairinan 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 brief, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following additions.
We agree with the Trial Examiner that the Respondent, by refusing
to execute an agreement which had been reached as a result of collective
bargaining with the certified bargaining representative of its em-
ployees, and by unilaterally changing the existing terms and condi-
tions of employment at a time when there was no impasse in negotia-
tions, violated Section 8 (a) (5) and (1) of the Act ; 2 and, by
threatening to discharge two employees for discussing union matters
during coffee breaks, further violated Section 8(a) (1) of the Act.'
With respect to the failure to execute the agreed-upon contract, it
is clear that the Respondent and the Union, on April 23, 1962, reached
agreement on contract terms, including the following union-security
clause :
As a condition of employment, all employees covered by this
agreement shall, on the 31st day following the signing of this
agreement, or in the case of new employees, on the 31st day follow-
ing the date of hire, become members in the Union and remain
members in good standing in the Union in accordance with the
Union's Constitution and By-Laws during the term of this agree-
ment. The Company shall discharge any employee within three
days following receipt of notice from the Union that an employee
is not a member as herein set forth.
On May 8, the Respondent refused to execute the contract drawn up
in accord with this agreement solely because some of its employees
had expressed opposition to the union-security clause. In its brief
filed with the Board, the Respondent for the first time contended that
1 The Respondent 's request for oral argument is hereby denied as, in our opinion, the
record, including the Respondent 's exceptions and brief , adequately presents the issues
and the positions of the parties.
2 The Respondent did not except to the Trial Examiner's findings that its unilateral con-
duct violated the Act.
3 The Great Atlantic 4 Pacific Tea Company, 123 NLRB 747, 756; J H Rutter-Rem
Manufacturing Company, Inc , 111 NLRB 1099 , 1105 . We do not rely on California
Lingerie, Inc . 129 NLRB 912, cited by the Trial Examiner, which involved a curtailment
of coffee-break privileges.
STACKHOUSE OLDSMOBILE, INC. 1241
the union-security clause was illegal because of the reference to "the
Union's Constitution and By-Laws." As the Respondent did not
advert to the alleged illegality of this clause during its negotiations
with the Union, or in fact at any time prior to the issuance of the In-
termediate Report herein, the issue of the legality of this clause was
not litigated, and the Union's constitution and bylaws do not appear
in the record. In any event, the contract language does not on its face
compel the conclusion that it is unlawful as such a clause may be inter-
preted lawfully to require no more than the tender of periodic dues
and initiation fees; there is no evidence in the record that the contract
here involved contemplated more than this; and we will not assume
that the parties intended to interpret it so as to violate the law.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
MEMBER LEEDOM, dissenting in part :
I do not agree with the conclusion of my colleagues that the Re-
spondent violated Section 8(a) (5) and (1) of the Act by refusing
to execute an agreed-upon contract. This contract contained a union-
security clause which required employees to "become members in the
Union and remain members in good standing in the Union in accord-
ance with the Union's Constitution and By-Laws ...." As reflected
in the dissenting opinion in Paragon Products Corporation,' I am
convinced that it would not contribute to the stability of collective-
bargaining relations to require the execution of a contract with a
union-security clause which does not on its face clearly comply with
the Act, because it can be interpreted only by an examination of the
Union's constitution and bylaws.6 Accordingly, I would modify the
order issued in this case by deleting the requirement that the Re-
spondent execute this contract.
4 See N L R B. v. News Syndicate Co., Inc, et al , 365 U.S 695 To the extent that
the Board's decision in Revere Metal Art Co , Inc , 123 XLRB 114, 123 (enforcement
deemed in this respect, 280 F 2d 96 (CA 2), could be deemed to support the Respond-
ent's contention that the provision in issue is unlawful, it would be inconsistent with this
cited Supreme Court decision and therefore no longer controlling
6134 NLRB 662, 668-670.
6 Cf. Zangerle Peterson Co, 123 NLRB 1027. There an agreement containing a refer-
ence to a union 's constitution and bylaws was held to constitute a bar on the ground that
other provisions in the contract specifically limited the union's right to seek a discharge,
and the employer' s obligation to effectuate a discharge, to situations in which employees
failed to tender or pay dues and initiation fees. There is no such limiting provision in
the subject contract.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Youngstown,
Ohio, on August 6, 1962, on the complaint of General Counsel , as amended, and
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the answer of Stackhouse Oldsmobile, Inc, herein referred to as the Respondent.'
The issue litigated is whether the Respondent engaged in unfair labor practices and
thereby violated Section 8(a)(5) and (1) of the Labor Management Relations Act,
1947, as amended, 61 Stat. 136, herein called the Act. The General Counsel and
Respondent presented oral argument; no briefs were filed.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with its principal office and place of business
located at Youngstown, Ohio, where it is engaged in the retail sale and service of
automobiles. Respondent annually sells automobiles and other products valued in
excess of $500,000, and annually purchases and receives automobiles and other
products valued in excess of $150,000 from points outside the State of Ohio. The
complaint alleges, the answer admits, and I find, that Respondent is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, Local Lodge 1519, AFL-CIO, herein
called the Union, is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the pleadings and litigated at the hearing are whether
Respondent, as more fully set forth in the complaint, engaged in activity in con-
travention of the provisions of Section 8(a)(5) and (1) of the Act, by: (a) refusing
to bargain collectively by refusing, on or about May 8, 1962, to sign a written
agreement embodying rates of pay, wages, hours of employment, and other condi-
tions, agreed upon by the Respondent and the Union; or (b) on or about April 26,
1962, unilaterally changing the existing terms and conditions of employment of the
employees in the unit with respect to rates of pay, use of automobile demonstrators,
and payment of automobile insurance, or (c) on or about May 3, 1962, by its
supervisors and agents, Frank Rogers and Emmett Taylor, threatening its employees
with discharge or other reprisals if they did not refrain from discussing union matters
and/or engaging in union activities during nonworking hours.
B. The appropriate unit; Union's exclusive representative status in said unit
On October 6, 1961, Respondent entered into a consent-election agreement with
the Union and the Regional Director in which the parties stipulated that all new
and used motor vehicle salesmen employed by the Company at its place of business
in Youngstown, Ohio, excluding all department managers, garage and service de-
partment employees, mechanics, body and fender men, office clerical employees,
professional employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act. On October 23, 1961, pursuant to this agreement, an
election was held under the supervision of the Regional Director The election
resulted in six votes being cast for the Union and no votes being cast against
the Union. No objections to the election were filed by any of the parties. The
Board, on October 30, 1961, certified the Union as the collective-bargaining rep-
resentative. Accordingly, I find that at all times material herein, the Union having
been duly designated by a majority of the employees in the aforesaid unit, and hav-
ing been certified by the Board as the exclusive representative of said unit, on
October 30, 1961, has been and is the exclusive representative of the employees
in said appropriate unit for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
C. Respondent's refusal to bargain
1. Background
There is no dispute of consequence as to the background evidentiary facts.
Representatives of the Union and Respondent met on December 11, 1961, for the
1 The charge was filed on May 9. 1962, and the complaint issued on June 20, 1962
STACKHOUSE OLDSMOBILE, INC. 1243
purpose of conducting collective-bargaining negotiations. Respondent was rep-
resented by Harvey B. Rector, labor relations consultant; Lloyd Stackhouse, presi-
dent; and Joseph L. Selak, secretary-treasurer. The Union was represented by Jesse
G. Young, grand lodge representative, Cecil Skidmore, a new-car salesman, and
James Scali, a used-car salesman, committee members. Young credibly testified that
the Union's proposals were submitted in written form. Among the items agreed
upon was a provision relative to "the union shop," with the understanding that the
precise language would be agreed upon later.2 Subsequently, on approximately
December 18, a further meeting was held, with the same individuals present, which
considered mainly the Company's counterproposals.
Thereafter, on an unspecified and unimportant date, Richard Noble, a special
representative of the Union, replaced Young as one of the union negotiators. Ray-
mond Pitzer, a new-car salesman, replaced Skidmore as a member of the committee.
The parties met in the latter part of March 1962. Noble's undisputed, and I find
credible, testimony was that Rector, Selak, and Stackhouse represented the Re-
spondent, although Stackhouse was not present throughout the entire meeting.
Noble, since it was his first meeting, went through the Union's initial proposal,
paragraph by paragraph, to verify the portions which had been agreed upon, those
which had been rejected, and those which required further negotiation. Noble
credibly testified that the union-shop provision, as contained in the Union's proposal,
was agreed upon at this meeting.
On approximately April 23, 1962, the same individuals, with a Federal mediator
present, met and arrived at a meeting of the minds on the terms and conditions of
the collective-bargaining agreement, subject only to the approval of the employees.
The undisputed, and credited, testimony of Noble relative to the events at the time
of the agreement was:
Q. Will you relate the conversation concerning writing up the agreement;
who said what?
A. Well, I first asked Mr. Rector if he would prepare the agreement, and he
said he didn't have time. So I then asked the Company if they would write it
up and get one of their stenographers to type it, and they wouldn't do it. In fact,
they told me, why don't you do it. So I then asked Mr. Rector if he would
stick around for about an hour and a half and I would go back to my hotel
room and prepare to write it up and then we would go over the agreement again.
He said he wouldn't be able to stay with the committee. I asked Mr. Stack-
house, if I would go and type it up and bring it back so that we would he able
to go over it and make a final proposal to the Company so that we could take
it back to the membership, so that we would know that this was it, and he
said I would have to see Mr. Rector for his approval, and since we couldn't get
together on it I typed it up and sent it to Mr Rector.
Thereafter, prior to May 3, 1962, Noble mailed the agreement to Rector, with
the request that he indicate his approval or disapproval, or make any necessary
corrections "and sign as Mr. Stackhouse informed me that you would have to ap-
prove." Noble further advised, "Should the employees accept this agreement we
will meet later and complete and sign an agreement." Rector returned the instru-
ment, without change, to Noble, prior to May 3, with the notation "Dick: This is OK.
H. B. Rector."
James J. Scali, an employee at the time he testified and a member of the nego-
tiating committee, whose testimony stands undisputed and I find credible, related
that on May 3, after the contract had been returned to Noble by Rector, he (Scali)
took a copy to the four other used-car salesmen,3 explained it to them, and it was
unanimously ratified by all. The fact of this ratification was reported by Scali to
Noble on May 3.
Raymond Pitzer was employed by Respondent as a new-car salesman from Jan-
uary 17 until July 30, 1962. His undisputed testimony, which I find credible, was
that at the time the agreement was submitted for ratification, he and Fred Silver
were new-car salesmen employed by Respondent and that both ratified the agreement,
after it had been returned by Mr Rector, inferentially May 3, 1962. Pitzer then
reported this fact to Noble.4
This finding is based upon the credited and undisputed testimony of Young and Seal!
' The used -car salesmen at that time were identified as Seal! , Tom Byrne , Jack Hanlon,
Harry Edmonson, and Robert Stockman
' Pitzer acknowledged that William Bratsch and a Mr Byers were also employed as
new-car salesmen at the time the agreement was ratified , but the record is silent as to
either of them being consulted relative to its ratification.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Refusal of Respondent to sign agreement
On May 8, 1962, the parties met for the purpose of signing the collective-bargaining
agreement previously agreed upon. Respondent was represented by Rector, Stack-
house, and Selak. The Union was represented by Noble, Donald Hoagland, Lodge
representative, Scali, and Pitzer.5 Noble related that Rector inquired why the Union
had advised employees that they had to join the Union, then Rector advised the Union
that the Company would not sign the agreement because they would not agree to the
inclusion of the "union shop" provision. Rector asserted there were "comments"
that the employees would have to pay a $100 initiation fee On May 8, Noble was
advised that the reason for the refusal of Respondent to sign was that one employee
told the employer that he did not want to join the Unions Rector advised Noble
that if the Union would sign up "I think he said there was two or three" employees
who did not wish to join the Union, the Respondent would sign the agreement.
Donald Hoagland corroborated the testimony of Noble that Respondent refused
to execute the contract Hoagland asserted that Rector stated Respondent had
heard that an exorbitant initiation fee was to be applied if employees did not sign
up right away. Hoagland responded by advising that the dues structure was $4 a
month, the initiation fee $7.50 for a new member, which is reduced to $5 when
a local unit is taken in at one time.
Joseph L. Selak asserted that the Company refused to sign the agreement because
it contained the union-shop provision.? Selak asserted that Respondent was willing
to sign the contract if the union-shop clause was deleted
Thereafter, in the third or fourth week in May, Noble, together with Scali and
Silvers, met with Stackhouse and requested that he execute the collective-bargaining
agreement. Stackhouse refused.
D. Unilateral change in conditions of employment
Events of April 23 to April 26
It is undisputed that at the meeting of April 23, 1962, Noble was advised by the
Federal mediator that Rector had requested the mediator to conduct a vote to de-
terminate if the employees would accept the Company's offer. Noble asserted that he
advised the mediator that he had no right to conduct a vote in the Union, that union
officials would perform these duties Rector was likewise so advised.
On April 25, 1962, Respondent, by letter signed by Lloyd Stackhouse, president,
advised the Union that since the Union did not consent to Respondent's request
that the mediator conduct an election among the employees to determine if they
would accept Respondent's "last offer" that they were putting certain wages and
working conditions into effect. It is undisputed that these terms and conditions
were placed into effect on April 26, 1962.
It is undisputed that the wages and working conditions placed into effect on
April 26 were identical with the wages and working conditions agreed upon by the
parties on April 23, provided for in the agreement submitted to Rector for approval
as part of the collective-bargaining agreement, and contained in the agreement
Respondent refused to sign on May 8.
E. Interference, restraint, and coercion
I have found supra, that on May 3, 1962, Scali and Pitzer, committee members,
discussed the proposed agreement of the parties with other members of the unit,
Scali with the used-car salesmen and Pitzer with another new-car salesman. Dur-
ing the same morning they met Noble and Hoagland at a small restaurant across
the street from the used-car lot and reported the ratification of the agreement by
the employees.
Scali's undisputed and credited testimony was that when he returned from his
coffee break he was advised by Emmitt Taylor that if he left Respondent's premises
again for the purpose of talking to any union representative or was seen talking to
a union representative on Respondent's premises he would be immediately dis-
6 I find of no consequence herein the assertion of Noble that the Union also intended
to undertake a limited clarification of the language of the agreement on May 8
O While Rector appeared as counsel of record for Respondent, he did not testify
Stackhouse, present throughout the hearing, was not called as a witness This testimony
of Noble is undisputed
7 The assertion of Selak that a "majority" of the salesmen asked Respondent not to
sign the agreement is not credited There is no evidence of such a claim having been
asserted on May 8.
STACKHOUSE OLDSMOBILE, INC. 1245
charged .8 It is admitted that Taylor is the used -car sales manager and is a super-
visor within the meaning of Section 2(11) of the Act.
Pitzer's undisputed and credited testimony was that after he met Noble and
Hoagland he returned to Respondent's premises and was met by Frank Rogers, the
new-car sales manager, who advised him that if he ever left the floor again to dis-
cuss union business he would be dismissed immediately.9 It is undisputed that
Rogers is a supervisor within the meaning of Section 2(11) of the Act.
Pitzer related that his scheduled hours to be on the sales floor alternated. Three
days a week he worked from 8:30 a.m. to 1 p in., the other 3 days he worked from
1 p.m. to 6 p.m When he was on the morning shift he was required to return and
work from 6 to 9 o'clock each evening Pitzer related that coffee breaks were
"relief time" and this was a general practice. Coffee breaks were taken as many
as three or four times each day when the employee might be absent from 10 to 20
minutes Pitzer asserted that Rogers was well aware of this practice Scali cor-
roborated Pitzer's undisputed testimony that it was customary for salesmen to take
two or three coffee breaks each day and that the restaurant where they met Noble
and Hoagland was the customary place for taking a coffee break.
F. Respondent's contentions and concluding findings
Respondent asserts, in its answer, "the employees described do not constitute an
appropriate bargaining unit under the Act because they are termed independent con-
tractors within the meaning of the Fair Labor Standards Act " In the prior pro-
ceeding, Case No. 8-RC-4472, a consent-election agreement contained a stipula-
tion of the appropriate collective-bargaining unit. No objections were filed to the
election and no question relative to the appropriateness of the unit was raised at any
time during the subsequent negotiations. In effect, Respondent seeks to attack the
certification collaterally. The Board long has followed the policy that issues de-
cided in a prior representation proceeding cannot be relitigated in a proceeding
based upon unfair labor practices. See Old King Cole, Inc., 119 NLRB 837, 842,
and J. W. Rex Company, 115 NLRB 775.
Respondent asserts that it was under no duty to continue bargaining, or to sign the
agreement, because the Union lost its majority. The assertion is not supported by
credible evidence I find no merit in this contention. The evidence herein estab-
lishes, without refutation, the existence of a majority on May 3, 1962. Absence of
a majority, even if assumed, is not a defense herein The Supreme Court has held:
If an employer has doubts about his duty to continue bargaining it is his
responsibility to petition the Board for relief, while continuing to bargain in
good faith at least until the Board has given some indication that his claim has
merit Although the Board may, if the facts warrant, revoke a certification or
agree not to pursue a charge of an unfair labor practice, these are matters for
the Board; they do not justify employer self-help or judicial intervention The
underlying purpose of this statute is industrial peace. To allow employers to
rely on employees' rights in refsuing to bargain with the formally designated
union is not conducive to that end, it is inimical to it [Ray Brooks v. N.L.R.B.,
348 U.S. 96, 103, see also Franks Bros Company v. N.L.R.B , 321 U S. 702.]
Respondent asserts, in its answer, that it never reached complete agreement with
the Union on working conditions; only rates of pay. "The Union reduced an agree-
ment to writing but the agreement was never ratified by the Respondent." I find
no merit in this contention. I have found that a complete agreement was reached,
that it was reduced to writing, that all the request of President Stackhouse it was sub-
mitted to Rector, that it was returned "approved" by Rector for submission to the
employees for their ratification, that it was thus ratified The absence of merit to
this contention is further demonstrated by Respondent's admitted willingness to
execute the agreement, provided only that the "union shop" clause was deleted.
Evidence that inclusion of the "union shop" provision was agreed upon is undis-
puted. Respondent's contention relative to its right to ratify is an afterthought
6 Taylor was not called as a witness and Respondent does not dispute the fact that the
statement was made.
9 Rogers was not called as a witness and Respondent does not dispute that the statement
quoted was made The complaint alleges that both these statements were made on May 3,
1962 It was on May 3 that the agreement was ratified by the employees in the unit
It was on May 3 that Scali and Pitzer reported the ratification to Noble and Hoagland
Accordingly, I find General Counsel's question to Pitzer as to whether this threat was
made on May 16, as distinguished from May 3, was an inadvertent error and that the
threat was made , as alleged in the complaint , on May 3
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without merit, absent even a scintilla of evidence of such a reservation having been
expressed.
General Counsel contends that the action of the Respondent in unilaterally chang-
ing the terms and conditions of employment on April 26, prior to the execution of
the agreement between the parties, constituted an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act. I have rejected supra, Respond-
ent's contention that a complete agreement was not reached on working conditions.
Respondent further contends that by reason of the Union's refusal to have the
mediator conduct an election, Respondent placed into effect rates of pay agreed
upon
The Supreme Court has held that where respondent bargains "in good faith with
respect to `wages, hours, and other terms and conditions of employment' . . . [ its]
good faith has met the requirements of the statute as to the subjects of mandatory
bargaining. But that good faith does not license the employer to refuse to enter
into agreements on the ground that they do not include some proposal which is
not a mandatory subject of bargaining [The Court held] that such conduct is, in
substance, a refusal to bargain about the subjects that are within the scope of man-
datory bargaining " While the Company may propose a vote, by secret, impartially
supervised, written ballot, it cannot lawfully insist upon such a clause, or such a
condition as a condition to any agreement. N.L.R B. v. Worcester Division of Borg-
Warner Corp., 356 U S. 342.
The evidence herein permits no finding of a genuine impasse during negotiations.
Quite the contrary is true. I have found, and the evidence appears undisputed,
that there was a meeting of the minds on April 23, 1962. At that time it was under-
stood that the Union would reduce the agreement to writing and submit it for
approval, which it did. Two days later, before the Union had an opportunity to
transmit the written agreement to Rector, solely as the result of the Union's refusal
to allow the mediator to conduct a secret ballot of the employees on the accept-
ability of the agreement, Respondent summarily advised the Union it was placing
some of the agreed-upon terms and conditions into effect, and did so without affording
the Union an opportunity to respond. In view of Respondent's other activities
enumerated herein, including its refusal to sign the agreement reached by the parties,
I find that its unilateral institution of these changes constitutes conduct in deroga-
tion of Section 8(a)(5) and (1) of the Act. I further find that Respondent's
entire course of conduct constitutes bad-faith bargaining on its part.io
The duty to execute a written contract "incorporating any agreement reached
if requested by either party" is included within the meaning of the duty to bargain
collectively Section 8(d) so provides, and numerous Board and court decisions
have so held 11 Respondent's refusal to sign the agreement is an unfair labor practice
within the meaning of Section 8 (a) (5) and (1) of the Act I so find
The evidence of the threats of economic retaliation, made by Taylor to Scali
and by Rogers to Pitzer on May 3, if they did not desist from union activities stands
undisputed. Respondent asserts , however, that these activities were during scheduled
worktime and therefore are not within the proscriptions of Section 8( a)(1).12
Coffee-break time, or relief time, like lunch time, is free time or the employees' own
time . These undisputed threats to the extent they are applicable to protected activities
of employees during such free time constitute interference, restraint, and coercion
and are within the proscriptions of Section 8(a)(1). Numerous Board and court
decisions have so held. See California Lingerie, Inc., 129 NLRB 912. I find
accordingly.
Substantially all of the crucial evidence herein is undisputed. Nevertheless, the
credibility determinations are based upon: the demeanor of the witnesses; the
plausibility or implausibility of the testimony of a particular witness in the light of
the record as a whole, including apparent discrepancies and evident exaggerations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section 111, above, occurring in con-
nection with Respondent's operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and such of them as have been found to constitute unfair labor
10 See Fitzgerald Mills Corporation, 133 NLRB 877; Alberto Culver Company, 136 NLRB
1432: Herman Sausage Co, Inc., 122 NLRB 168
11 See Winchester Electronics, Incorporated, 128 NLRB 1292; The Usadel Trophy Manu-
factairerers, Inc, 131 NLRB 1347.
12 The inconsistency of this asserted defense with Respondent's contention that these
employees were in fact independent contractors is noted
STACKHOUSE OLDSMOBILE, INC. 1247
practices tend to lead to labor disputes obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take affirmative action designed to effectuate the policies of the Act. It will
be recommended that Respondent, upon request, sign the agreement presented to
it by the Umon on May 8, 1962, if requested to do so by the Union; that the
"duration of agreement" provision be extended for a period equivalent to the period
initially contemplated, i.e., May 8 to August 31, 1962. I will further recommend
that if no such request is made by the Union, then Respondent be ordered to bargain
collectively, in good faith, upon request, with the Union as the exclusive representative
of the employees in the appropriate unit and, if an understanding is reached, embody
such understanding in a signed agreement.
Having found that Respondent has failed to bargain in good faith, and has
engaged in other acts constituting interference, restraint, and coercion of employees
in the exercise of the rights guaranteed them in Section 7 of the Act, I shall recom-
mend that Respondent be ordered to cease and desist from in any like or related
number infringing upon those rights.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Association of Machinists, Local Lodge 1519, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All new and used motor vehicle salesmen employed by the Company at its
place of business in Youngstown, Ohio, excluding all department managers, garage
and service department employees, mechanics, body and fender men, office clerical
employees, professional employees, guards, and 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.
4. International Association of Machinists, Local Lodge 1519, AFL-CIO, has
been, at all material times herein, the exclusive representative of all the employees
in the aforesaid appropriate unit for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing, on and after May 8, 1962, to bargain, upon request, with the
Union concerning wages, hours, and other working conditions for employees in
the unit; by repudiating and refusing to execute and sign the agreement reached
as a result of collective bargaining, on May 8, 1962; and by unilaterally changing
the existing terms and conditions of employment of the employees in the unit on
April 26, 1962, 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. By engaging in the conduct set forth in the section entitled "Interference,
Restraint, and Coercion," to the extent herein found, the 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 commerce
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 case, I recommend that the Respondent , Stackhouse
Oldsmobile , Inc., its officers , agents, successors , and assigns, shall:
I Cease and desist from:
(a) Refusing , if requested to do so by the above -named Union , to execute and
sign the written agreement reached.
(b) Refusing to bargain collectively concerning wages, hours , and other terms
and conditions of employment , with International Association of Machinists, Local
Lodge 1519 , AFL-CIO, as the exclusive representative of all the employees in the
following appropriate unit:
All new and used motor vehicle salesmen employed by the Company at its
place of business in Youngstown , Ohio, excluding all department managers,
garage and service department employees , mechanics, body and fender men,
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, professional employees, guards, and supervisors as
defined in the Act.
(c) Unilaterally changing conditions of employment without notice to the above-
named labor organization and, upon request, bargain collectively concerning such
changes before making them.
(d) Threatening employees with economic reprisals if they engage in union
activities during nonwork time.
(e) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) If requested to do so by the above-named Union, forthwith sign the agreement
reached as written, subject to the extension of the expiration date as indicated under
"The Remedy" herein, and deliver a signed copy thereof to the Union.
(b) Upon request, bargain collectively in good faith with the above-named Union
as the exclusive representative of the employees in the above-described unit and, if
an understanding is reached, embody such understanding in a signed agreement.
(c) Post at its plant in Youngstown, Ohio, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
the Eighth Region, shall, after being duly signed by the Respondent, be posted by it
immediately upon receipt thereof and maintained for 6 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 such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writing, within 20
days from the date of the receipt of this report, what steps the Respondent has taken
to comply with the foregoing recommendations.
It is further recommended that, unless within 20 days from the date of the receipt
of this Intermediate Report, the Respondent shall notify the aforesaid Regional
Director, in writing, that it will comply with the foregoing recommendations,14 the
National Labor Relations Board shall issue an order requiring Respondent to take
the aforesaid action.
18 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of 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."
14 In the event 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 the Respondent has taken to comply therewith."
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, if requested to do so by the International Association of Machinists,
Local Lodge 1519, AFL-CIO, sign and execute the agreement reached on May 8,
1962, and will deliver a copy thereof to the Union.
WE WILL bargain, upon request, with the above-named Union as the exclusive
representative of all employees in the bargaining unit described below in respect
to rates of pay, wages, hours of work, and other conditions of employment; and,
if an understanding is reached, embody it in a signed agreement. The bargain-
ing unit is:
All new and used motor vehicle salesmen employed by the Company at
its place of business in Youngstown, Ohio, excluding all department man-
agers, garage and service department employees, mechanics, body and
fender men, office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT make unilateral changes in wages and working conditions with-
out consulting and negotiating with the Union.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1249
WE WILL NOT threaten our employees with economic reprisals because they
engage in union activities during nonwork time.
WE WILL NOT, by refusing to bargain in good faith, or in any like or similar
manner, interfere with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist the above-named Union 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
and all such activities, except to the extent that such right 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, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
STACKHOUSE OLDSMOBILE, 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 at 720
Bulk ley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Los Angeles Building & Construction Trades Council [Cecil
Mays] and Interstate Employers, Inc., Golding and Jones,
Inc., Norman E. Jones
Building and Construction Trades Council of San Bernardino
and Riverside Counties and Interstate Employers , Inc., Gold-
ing and Jones , Inc., and Cecil Mays
Building and Construction Trades Council of San Bernardino
and Riverside Counties and Golding and Jones , Inc., and Inter-
state Employers , Inc., and its Members, Cecil and Joe Mays.
Cases Nos. t'1-CC-450, f1-CC-451, and 21-CC-4170. February 13,
1963
DECISION AND ORDER
On May 10, 1962, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, both Respondents, the General
Counsel, and the Charging Parties filed exceptions to the Inter-
mediate Report. The General Counsel and Respondent Los Angeles
Council also filed supporting briefs, and the Charging Parties request
oral argument.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
' Because in our opinion the record , exceptions , and briefs adequately set forth the
issues and positions of the parties , this request is hereby denied,
140 NLRB No. 124.