Gilbert Motor Sales, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1951

97 N.L.R.B. 98 (N.L.R.B. 1951)

98 DECISIONS OF NA'^IONAL LABOR RELATIONS BOARD
deliberate refusal on its part to participate in the arrangements be-
cause it wished primarily to postpone any election. In these
circumstances, it may not now complain that it was thereby prejudiced.
(5) The final objection rests on alleged improper conduct by the
Employer and by the Petitioner after the close of the balloting. We
reject this objection because later conduct could not have affected the
results of the election.
As the tally of ballots shows that the Petitioner has secured a ma-
jority of the valid votes cast, we shall certify it as the bargaining
representative in the unit heretofore found appropriate.
Certification of Representatives
It is hereby certified that International Union of Electrical, Radio
& Machine Workers, CIO, has been designated and selected by a
majority of the Employer's production and maintenance employees
at its New York City plant, including laboratory assistants, but ex-
cluding office employees, foremen, and all other supervisors as defined
in the Act, as their representative for purposes of collective bargaining,
and that pursuant to Section 9 (a) of the Act, the aforesaid organiza-
tion is the exclusive representative of all such employees for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
GILBERT MOTOR SALES , INC. and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMER-
ICA (UAW-CIO) AND ITS LOCAL No. 408 . Case No. '1-CA--581.
November 26,1951
Decision and Order
On August 14, 1951, Trial Examiner Eugene F. Frey issued his In-
termediate 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 Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Reynolds and Styles].
97 NLRB No. 21.
GILBERT MOTOR SALES, INC. 99
mediate Report, the exceptions, the brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner?
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Gilbert Motor
Sales, Inc., Detroit, Michigan, its officers, agents, successors, and as-
signs shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-CIO) and its Local No. 408 as the exclusive rep-
resentative of all its employees in the appropriate unit aforesaid with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
(b) In any manner interfering with the efforts of International
Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) and its Local No. 408
to bargain collectively with Respondent on behalf of the employees
in the aforesaid appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-CIO) and its Local No. 408, as the exclusive bar-
gaining representative of all employees in the aforesaid appropriate
unit with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its place of business in metropolitan Detroit, Michigan,
copies of the notice attached hereto and marked "Appendix A." 3
Copies of said notice, to be furnished by the Regional Director for
the Seventh Region, shall, after being duly signed by the authorized
representative of the Respondent, be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for a period of
sixty (60) consecutive days thereafter in conspicuous places, including
, In addition to the cases cited by the Trial Examiner with respect to jurisdiction, see
N. L. R. B. v. M. L. Townsend, 185 F. 2d 378 ( C. A. 9), enforcing 81 NLRB 739 , cert. denied
341 U. S. 909.
$ 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."
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) and
its LOCAL No. 408, as the exclusive representative of all employees
in the bargaining unit described below, with respect to wages,
rates of pay, hours of employment, or other terms or conditions
of employment, and, if an understanding is reached, embody
such understanding in a signed.agreement. The bargaining unit
is:
All our employees, excluding -office and clerical employees,
new and used car salesmen, administrative and professional
employees, watchmen, superintendents, service managers,
shop foremen, and all supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the
above-named union to bargain collectively with us, or refuse tb
bargain with said union, as the exclusive representative of all our
employees in the bargaining unit set forth above.
GILBERT MOTOR SALES, INC.,
Employer.
By ------`------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 consecutive days from the
date hereof and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
'STATEMENT OF THE CASE
Upon a charge duly filed by International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America (UAW-CIO) and its Local
GILBERT MOTOR SALES, INC. 101
No. 408 (herein collectively called the Union), the General Courfsel for the
National Labor Relations Board (herein called General Counsel and the Board),
by the Regional Director for the Seventh Region (Detroit, Michigan), issued a
complaint on June 21, 1951, against Gilbert Motor Sales, Inc. (herein called the
Respondent), alleging that Respondent is engaged in commerce within the
meaning of the Act, and that Respondent has refused at all times since October
18, 1950, to bargain collectively with the Union, a labor organization previously
certified by the Board as the exclusive bargaining representative of all em-
ployees of Respondent in an appropriate unit described below, in violation of
Section 8 (a) (5) and (1) of the Act. Copies of the charge, complaint, and
notice of hearing thereon, were duly served upon Respondent and the Union.
The answer of Respondent challenged the jurisdiction of the Board, denying
that it was engaged in commerce within the meaning of the Act; it admitted its
refusal to bargain with the Union, but denied the commission of any unfair
labor practices, claiming that the Board erred in previous representation pro-
ceedings in determining that Respondent was engaged in commerce. As a fur-
ther defense, Respondent alleged that in a prior election conducted by the Board
on July 20, 1949, a majority of its employees had voted against affiliation with
the Union, that within a year after said election the Union filed another petition
for representation (Case No. 7-RC-960), on which the Board held a hearing
July 14, 1950, and issued its Decision and Direction of Election on August 4,
1950, and that the latter proceeding was premature and the decision of the
Board therein was void. -
Pursuant to notice, a hearing was held at Detroit, Michigan, on July 23, 1951,
before the undersigned Trial Examiner. The General Counsel and Respondent
were represented by counsel,' participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce evidence bearing on the issues, and to present oral argument and file briefs
and proposed findings of fact and conclusions of law ; both parties presented oral
argument but waived the filing of briefs. Respondent's motions at the opening
and close of General Counsel's case to dismiss the complaint on jurisdictional
grounds were denied. Respondent offered no testimony at the hearing.
Upon the entire record in the case (all the proofs being documentary and no
oral testimony having been adduced), I make the following :
FINDINQ+s OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is a Ford dealer maintaining and
operating an authorized Ford automobile sales and service business at River
Rouge, in the Detroit, Michigan, metropolitan area. It operates its busi-
ness under the usual sales agreement with the Ford Motor Company of Detroit,
Michigan. During the 6-month period ending December 31, 1949, Re-
spondent made purchases amounting to $798,021.27, and total sales amounting
to $842,362.80. All of its purchases, except $85 worth, were made from
Ford Motor Company plants in Michigan, and all of its sales were made
within the State of Michigan. With the exception of variations in dollar
amounts, which are not stated in the record, Respondent's purchases and sales
during 1950, and up to the time of the hearing, were in substantially the same
proportion and of the same types as in the above period. The vehicles and parts
sold by Respondent are manufactured by Ford Motor Company, a large indus-
i The Union did not appear at the hearing.
986209-52-vol. 97-8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial organisation which is engaged extensively in interstate commerce. The
Ford operations in Michigan consist largely of the assembly of finished products
from many parts manufactured outside the State, and the sale of those products
by franchised dealers, including Respondent, is the final act or terminus in the
long route these products and their constituent parts have traveled in inter-
state commerce. The sale of Ford products by local dealers directly affects
Ford's operations ; a breakdown in any portion of its industrial complex would
have an inevitable effect on interstate commerce. A franchised automobile
dealer, such as Respondent, functions as an essential element in a Nation-wide
system devoted to the manufacture and distribution of automobiles, and is an
integral part of a multistate enterprise. These findings are based on the allega-
tions of the complaint, as admitted in part by Respondent's answer, and the
records and decisions of the Board in Case No. 7-RC-960 and Johns Brothers,
Inc., et al., 84 NLRB 294, in both of which Respondent was a party, and of which
I take judicial notice. In both cases, the Board found, and I now find on the
basis thereof and the above facts, contrary to Respondent's contention, that
Respondent was and is engaged in commerce within the meaning of the Act 2
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW-CIO) and its Local No. 408 is a labor organization
admitting to membership therein employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit , and the Union's majority status
This case arises out of the Union 's petition for certification as the statutory
collective bargaining representative of employees of Respondent, filed May 15,
1950, in Case No. 7-RC-960 . After the usual investigation under Section 9 (c) of
the Act, the Board, on August 4,1950 , issued its Decision and Direction of Election
(unpublished ) in which it found that all employees of Respondent at its River
Rouge, Michigan , establishment , excluding office and clerical employees, new
and used car salesmen , administrative and professional employees , watchmen,
superintendents , service managers , shop foremen, and all other supervisors as
defined in the Act, constituted a unit appropriate for purpose of collective
bargaining within the meaning of Section 9 (b) of the Act . The Board had
previously found the same unit to be appropriate as to each employer , including
Respondent , in Johns Brothers, Inc., supra . Respondent having offered no
evidence herein to controvert that finding, I therefore find on the basis of the
Board's previous decision that the unit described above is appropriate for
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
After an election held on September 1, 1950, the Board issued its Supplemental
Decision on October 31, 1950 , finding that a majority of the employees in the
above unit had voted for the Union , and certifying the Union as the exclusive
bargaining representative of all such employees , pursuant to Section 9 (a) of
the Act. There being a conclusive presumption that the Union's status con-
tinues for at least a year after its certifications I find that the Union has been
since October 31, 1950 , and now is the exclusive representative of all Respondent's
2 See also Baxter Bros ., 91 NLRB 1480 ; Jefferson Lincoln Mercury Inc., et al., 90 NLRB
1911 ; Conover Motor Company, 93 NLRB 867 ; The Strang Garage Company, 93 NLRB
900; Ken Rose Motors, Inc., 94 NLRB 868.
8 Tooicraft Corporation , 92 NLRB 655.
GILBERT MOTOR SALES, INC . 103
employees in the unit aforesaid for purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, or other conditions of
employment, within the meaning of Section 9 (a) of the Act.
B. The refusal to bargain
The record shows, Respondent admits, and I find, that on October 18 and
November 3, 1950, the Union requested Respondent to bargain with it as the
statutory representative of its employees in the unit aforesaid, and that
Respondent has at all times since October 18, 1950, refused to bargain with
the Union upon the ground that it is not legally obligated to bargain because
it is not engaged in commerce within the meaning of the Act.
The only issue raised by Respondent is that of interstate commerce. That
issue was fully litigated in the representation proceeding, Case No. 7-RC-960,
and resolved against Respondent. The record indicates that its present refusal
to bargain is solely for the purpose of securing a review of the Board's decision
of that issue in the prior proceeding.' In its answer and during the hearing,
Respondent attacked the jurisdiction of the Board upon the additional ground
that the proceedings and decision in Case No. 7-RC-960, upon which the com-
plaint is based, were defective, null, and void, in that they were initiated by
a petition prematurely filed by the Union on May 15, 1950, within a year after
the election of July 21, 1949, held in Cases Nos. 7-RC-143, etc. (involving
Johns Brothers, Inc. et al.) in violation of Section 9 (c) (3) of the Act. The
same contention was raised by Respondent in the representation proceeding
and rejected by the Board, upon the ground that the 12-month period fixed
by that section of the Act runs from the date of the first election, and in the
second case the election could not be held until more than 12 months after
the previous election (the Board's direction of election being dated August 4,
1950). See General Electric Company, 89 NLRB 726.6
Inasmuch as Respondent has offered no proofs herein, and its basic objections
on jurisdictional grounds have been rejected by the Board in the prior pro-
ceedings, I find that Respondent has failed and refused since October 18,
1950, to bargain collectively with the Union as the exclusive representative
of Respondent's employees in the appropriate unit aforesaid, and has thereby
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed to them by Section 7 of the Act, in violation of Section 8 (a) (5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring
in connection with the operations of 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.
A See Pittsburgh Plate Glass Company V. N. L. R. B., 313 U S. 146, 154.
6 Respondent also objected at the hearing to any consideration of the record and decision
in Johns Brothers, Inc., in this case, on the ground that a local union other than Local No.
408 had initiated the proceedings in that case. This objection is without merit, because
Respondent here was a party in the prior case, as well as in Case No. 7-RC-960 In both
cases, the Board found that Respondent was engaged in commerce. Since that was the
fundamental issue in those cases, as it is here, the Board's prior decisions are binding on
the Trial Examiner , in the absence of newly discovered evidence which might lead to a
different conclusion . It has long been the policy of the Board , sanctioned by the courts,
that in cases involving an alleged refusal to bargain the Board will not reconsider issues
disposed of in earlier representation proceedings unless there is evidence which was unavail-
able at the time of the earlier proceedings . Continental Oil Company, 95 NLRB 358.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor prac-
tices, I will recommend that Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having also found that Respondent has refused to bargain collectively with the
Union, I will recommend that Respondent bargain collectively with the Union,
upon request, as the exclusive representative of its employees in the appropri-
ate unit.
Upon the basis of the above findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) and its Local No. 408 is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. All employees of Respondent at its River Rouge, Michigan, establishment,
excluding office and clerical employees, new and used car salesmen, administrative
and professional employees, watchmen, superintendents, service managers, shop
foremen, and all supervisors as defined by the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
3. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) and Its Local No. 408 was on October
31, 1950, and has been at all times thereafter, the exclusive representative of
all employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on October 18, 1950, and at all times thereafter, to bargain
collectively with International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America (UAW-CIO) and its Local No. 408, as
the exclusive representative of all employees in the aforesaid appropriate unit,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. 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 omitted from publication in this volume.]
GAGNON PLATING AND MANUFACTURING COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE No. 750. Case No. 30-CA -84.
November 26,1951
Decision and Order
On April 27, 1951, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
97 NLRB No. 20.