Davis Motors, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1951

93 N.L.R.B. 206 (N.L.R.B. 1951)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of the intraunion split revealed by the record in this case,
the IUE and the UE challenge, with some show of right, each other's
claim to representative status. In these circumstances, as in other
cases arising out of the expulsion of the UE from the CIO, it is clear
that the normal bargaining relationship between the Employer and
the original contracting union has become a matter of confusion. The
relationship between them can no longer be said to promote stability
in labor relations. To treat the contract as a bar to a present deter-
mination of representatives would seriously impede, rather than
encourage , the practice of collective bargaining that the Act was
designed to foster and protect. We therefore believe that the con-
flicting claims to representation of the two labor organizations in-
volved can best be resolved by an election.
We find, therefore, that the existing contract is not a bar to a present
determination of representatives.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer at the RCA plants at
Camden and Gloucester, New Jersey, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act :
All hourly paid employees, excluding executives, administrators,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
s Radionie Products Division , Radionic Controls, Inc., 91 NLRB 595; Air Reduction
Sales Company of Air Reduction Company , Inc., 89 NLRB 1486 ; White Sewing Machine
Company , 89 NLRB 1284 ; Airtemp Division , Chrysler Corporation , 89 NLRB 448.
DAVIS MOTORS, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE No. 86 . Case No. 30-CA-102. February 13, 1951
Decision and Order
On December 28, 1950, Trial Examiner James B. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Re-
93 NLRB No. 30.
DAVIS MOTORS, INC. 207
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
The Board 1 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, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Davis Motors, Inc., its officers, agents, succes
sors, and assigns, shall :
(a) Cease and desist from :
(1) Refusing to bargain collectively with the International Asso-
elatioli of Machinists, District Lodge No. 86, as the exclusive bargain-
ing representative of all mechanics, mechanic helpers, apprentices,
body mechanics, metal men, painters, trimmers, full-time polishers
and lubricators, excluding office employees, sales employees, parts,
employees, washers, porters, and supervisors.
(2) In any other manner interfering with the efforts of the above-
mentioned Union to bargain collectively with the Respondent.
(b) Take the following affirmative action, which the Board finds.
will effectuate the policies of the Act :
(1) Upon request, bargain collectively with International Asso-
ciation of Machinists, District Lodge No. 86, as exclusive represent-
ative of all the employees in the aforesaid unit, with respect to griev-
ances, labor disputes, rates of pay, wages, hours, and other terms and..
conditions of employment, and if an understanding is reached, em-
body such understanding in a signed agreement.
(2) Post at its Denver, Colorado, place of business copies of the
notice attached to the Intermediate Report and marked Appendix
A thereof.2 Copies of said notice, to be furnished by the Regional
Director for the Seventeenth Region, shall, after having been duly
signed by the Respondent's representative, be posted by the Respond-
' 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 [Members Houston , Reynolds,
and Styles].
2 This notice, however , shall be , and it hereby is, amended by striking from line 3
thereof the words "The recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order." In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be inserted before the words "A
Decision and Order" the words "A decree of the United States Court of Appeals Enforcing.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent immediately upon receipt thereof and be maintained by it for a
period of at least sixty (60) consecutive days thereafter, in conspicu-
ous places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Employer
to insure that said notices are not altered, defaced, or covered by any
other material.
(3) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Employer has taken to comply herewith.
Intermediate Report
Mr. William J. Scott, of Kansas City, Mo., for the General Counsel.
Mr. Emory L. O'Connell, of Denver, Colo., for the Respondent.
Mr. Ernest Al. Gibson, of Kansas City, Mo., and Mr. W. B. Jordan, of Denver,
Colo., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on August 30, 1950, by International Association of
Machinists, District Lodge No. 86, hereinafter referred to as the Union, against
Davis Motors, Inc., hereinafter referred to as the Respondent, the General
Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director for the Seventeenth
Region, issued his complaint, dated November 16, 1950, alleging that the Re-
spondent had engaged in, and was engaging in, unfair labor practices within
the meaning of Section 8 (a) (1) and (5) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act, affecting commerce, within
the meaning of Section 2 (6) and (7) of the Act. Copies of the charge, the
complaint, and notice of hearing were duly served on the Respondent and on the
Union.
With respect to the unfair labor practices, the complaint alleges in substance
that since about August 8, 1950, the Employer has refused to bargain collectively
with the Union as the representative of its employees in an appropriate unit.
The answer of the Respondent, dated November 24, 1940, and filed on Novem-
ber 27, 1950, admits the appropriateness of the unit, the Union's majority, and
the refusal to bargain, but denies that it is engaged in commerce within the
meaning of the Act.
Pursuant to notice, a hearing was held in Denver, Colorado, on December 5,
1950, before me, the duly designated Trial Examiner. The General Counsel and
the Respondent were represented by counsel, and the Union was represented by
representatives. All were afforded opportunity to examine and cross-examine
witnesses and to introduce evidence pertinent to the issues. With the answer,
the Respondent had filed with the Regional Director a motion to dismiss the
complaint on the grounds (1) that the complaint does not state facts entitling
the complainant to any relief under the Act, (2) that the Respondent is not an
employer as defined in the Act, (3) that the Respondent is not an employer
engaged in commerce within the meaning of the Act, (4) that the Respondent is
not an employer engaged in a business affecting commerce within the terms
and provisions of the Act, (5) that the Respondent is not engaged in commerce
and is not by any act complained of burdening or obstructing commerce, and
(6) that the Respondent is not by any act complained of leading or tending to
DAVIS MOTORS, INC. 209
lead to a labor dispute burdening or obstructing commerce or the free flow of
commerce. As this motion was apparently not ruled on by the Regional Director,
I treated it as referred to the Trial Examiner for ruling, and, after having
heard evidence on the jurisdictional facts, I denied the motion.
At the conclusion of all the evidence, counsel for the General Counsel moved
for judgment on the pleadings and on the admitted facts. Ruling was reserved
thereon to give the Respondent, at its request, time to file a brief and proposed
findings of fact and conclusions of law.
At the close of the hearing, the Respondent repeated its motion to dismiss.
The motion was denied, with a statement that if the Respondent's brief con-
vinced me that the motion should have been granted, I would reverse my ruling.
Within the time fixed, the Respondent filed proposed findings of fact and
conclusions of law, but no briefs were received The Respondent's request for
findings of fact contains a few statements concerning which the record war-
rants neither an affirmative nor a negative finding. The entire request in
such instance has been denied Some of the findings requested are for imma-
terial facts and are denied for that reason. Where there is conflicting evidence
between the transcript of the representation hearing and the complaint case,
I have given mote weight to the evidence taken in this hearing The proposals
for findings of fact are accepted as to paragraphs 2, 5, 6, 7, 9. The rest are
rejected. Of the Respondent's proposed conclusions of law, 5 and 6 are accepted.
The remainder are rejected.
Upon the entire record in the case, and from my observation of the witness,
I make the following :
I.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Colorado corporation, having its principal office and
place of business in Denver, Colorado At Denver, Colorado, the Respondent
is engaged in the retail sale of new and used automobiles and the servicing and
storing of such vehicles As an automobile dealer, it holds a franchise for the
sale and distribution of automobiles from the Ford Motor Company.
In the conduct of the Respondent' s business , during the calendar year 1949,
it sold 451 new cars and trucks of the value of $929,25136. These cars and
trucks , purchased at a cost of $745,633, were shipped to the Respondent from
Missouri , Michigan, and occasionally from Illinois. During the same period, the
Respondent purchased used cars and trucks, all at Denver, Colorado, which
were resold at Denver, Colorado, with a gross dollar value of $231,963 23. It
purchased, during this period, parts, accessories, and tires at a cost of $101,243
from the Ford Motor Company's parts depot in Denver, Colorado, which had
acquired them from points outside the State of Colorado. Such parts were
resold by the Respondent in Denver, Colorado (with the exception of approxi-
mately 2 percent thereof, which were sold outside the State of Colorado) for
the sum of $167.232 76 During the year 1949, the Respondent in Denver, Colo-
rado, performed services and labor on automobiles and trucks for which it
received the sum of $90,484 10 On these facts I find, in accordance with estab-
lished Board rules and decisions, that the Respondent is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act'
1 Baxter Brothers, 91 NLRB 1480, N L R B v Townsend, 185 F 2d 378 (C A 9) ;
Rutledge Paper Products , Inc, 91 NLRB 625
943732-51-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 86 , is a labor
organization admitting to membership employees of the Respondent.
III. TIIE UNFAIR LABOR PRACTICES
A. The appropriate unit and the Union's majority therein
Following a petition for certification and a Board conducted hearing in Davis
Motors, Inc., 30-RC-301, the Board, on June 26, 1950, ordered an election to be
conducted in a unit consisting of all mechanics, mechanic helpers, apprentices,
body mechanics , metal men, painters , trimmers, full-time polishers and lubri-
cators, excluding office employees, sales employees, parts employees, washers,
porters, and supervisors, which unit the Board found to be appropriate and
which I likewise find to be appropriate. Pursuant to said order of the Board,
an election was held on July 14, 1950, in which a majority of the employees cast
ballots in favor of the Union On July 24, 1950, the Board certified the Union
as the majority representative of all the employees in the appropriate unit. I
find that on July 24, 1950, and at all times material thereafter, the Union was
the majority representative of all the employees in the appropriate unit.
B. The refusal to bargain
On August 8, 1950, the Union wrote to the Respondent requesting a meeting
for the purpose of collective bargaining The Respondent's attorney replied on
August 17, 1950, declining the request on the ground that the Respondent wished
to test the Board ' s decision on jurisdiction in a court. •
On the foregoing facts, I find that on August 17, 1950, and at all times there-
after, the Respondent refused to bargain with the Union in violation of Section
8 (a) (I) and (5) of the Act
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices violative
of Section 8 (a) (1) and (5) of the Act, the undersigned will recommend that
it cease and desist therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that the Respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit,
the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union as such representative, and if an understanding is
reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following
AUGUSTA BEDDING COMPANY 211
CONCLUSIONS OF LAW
1. The Respondent, Davis Motors , Inc., is engaged in trade, traffic ,
and com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists, District Lodge No. 86, is a labor
organization within the meaning of Section 2 (5) of the Act.
3 All mechanics, mechanic helpers, apprentices, body mechanics, metal men,
painters, trimmers, full-time polishers and lubricators, excluding office employees,
sales employees , parts employees, washers, porters , and supervisors , is a unit
appropriate for collective bargaining within the meaning of Section 9 (b) of
the Act.
4. The Union was on July 24, 1950. and at all times since has been, the exclusive
bargaining representative of the employees in the unit set forth in paragraph
3 above.
5 By refusing to bargain collectively with the Union on August 8, 1950, the
Employer has engaged in. and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (5) and (8) (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act
[Recommended Ordei omitted from publication in this volume.]
AUGUSTA BEDDING COMPANY and WILLIAM G. DENNEY. Case No.
10-CA-,876. February 13, 1951
Decision and Order
On October 30, 1950, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) of the Act and recom-
mending that it cease and desist therefrom, and take certain affirmative
action, as set forth in the copy of Intermediate Report attached hereto,
and finding that the Respondent had not engaged in unfair labor
practices in violation of Section 8 (a) (3) and 8 (a) (4) as alleged
in the complaint. The Section 8 (a) (4) allegations of the complaint
were dismissed by the Trial Examiner upon the Respondent's motion
at the conclusion of the hearing. In the Intermediate Report the
Trial Examiner recommended dismissal of the 8 (a) (3) allegations.
Subsequent to advice by the Respondent to the Board of the Respond-
ent's intention to comply with the recommended order contained in
the Intermediate Report, the General Counsel filed exceptions to the
Intermediate Report together with a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
i Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member panel
(Chairman Herzog and Members Reynolds and Murdock]
93 NLRB No. 33.