Harbor Chevrolet Co.

National Labor Relations Board - Board Decisions

Apr 11, 1951

93 N.L.R.B. 1326 (N.L.R.B. 1951)

1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HARBOR CHEVROLET COMPANY AND/OR HARBOR REALTY & FINANCE
COMPANY AND/OR HARBOR CHEVROLET CORPORATION and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #94, FOR ITS
LOCAL LODGE 1126. Case No. 31-CA-795. April 11, 1951
Decision and Order
On January 18, 1951, Trial Examiner Howard Myers issued his
Intermediate 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a brief in support
thereof.
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 Murdock].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Respondents' request for oral argument is hereby
denied, inasmuch as the record and brief, in our opinion, adequately
present the issues and positions of the parties. The Board has con-
sidered the Intermediate Report, the exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the additions and
modifications hereinafter set forth.
1. Like the Trial Examiner, we find that during all times material
herein the Respondents 1 were, and now are, engaged in commerce
within the meaning of the Act. The cases cited by the Trial Examiner
in support of his finding are apposite; especially is this so of the
Baxter Bros. case 2 where the commerce facts were substantially the
same as those in this case. The, fact that here the "Direct Dealer
Seller Agreement" between the Company and Chevrolet Motors was
not in effect from February 1, 1950, to May 31, 1950, in no way alters
our finding. The record shows that during the lapse of the "Agree-
ment" both the Company under its name or that of Realty Company
continued as in the past to buy and sell Chevrolet automobiles and
parts until June 1, 1950, the date on which the Corporation obtained
'The Respondents are Harbor Chevrolet Company, herein called the Company, which
in May 1950 changed its name to Harbor Realty & Finance Company, herein called the
Realty Company ; and /or Harbor Chevrolet Corporation , herein called the Corporation.
2 91 NLRB 1480.
93 NLRB No. 231.
HARBOR CHEVROLET COMPANY 1327
its "Agreement" and purchased the assets of the automobile business
from the Realty Company. Accordingly, during that time the Com-
pany or the Realty Company remained an integral part of a multistate
enterprise.
The Trial Examiner termed the "Direct Dealer Seller Agreement"
a franchise and found that it was exclusive. The Respondents contest
this finding. However, whether the franchise is or is not exclusive is
not determinative. As stated in Kelly A. Scott, 93 NLRB 654, what
is controlling is the fact that, as here, the franchise in question asso-
ciates the Respondents with a Nation-wide producer and distributor
of automobiles.3
2. The Respondents contend that the Board certification of the
Union was invalid allegedly because it did not clearly state the unit
for which the Union was certified. A review of the representation
proceeding demonstrates the frivolousness of this contention. The
Union filed the petition in Case No. 21-RC-911; the Board found ap-
propriate the unit requested by the Union, specified the unit's com-
position, and directed an election therein; the election was held with
the Union the sole labor organization appearing on the ballot; the
Company filed objections to the election held in this unit and then filed
exceptions to the Regional Director's report on the objections; and,
specifically referring to Case No. 21-RC-911, the Board issued its
"Supplemental Decision and Certification of Representatives," a
document which is part of the record in this proceeding, in which it
certified the Union as the representative of the employees in the unit
already found appropriate. Under these circumstances, despite the
fact that Case No. 21-RC-911 was consolidated with another case for
purposes of conducting the hearing, it is evident that the Board cer-
tified the Union as the bargaining agent of the employees in the unit
sought by the Union and found appropriate by the Board in Case No.
21-RC-911.
3. While we agree with the Trial Examiner that the Company re-
fused to bargain with the Union in violation of the Act, we do not
find, as he did, that the violation first occurred on January 24, 1950.
It was not until April 19, 1950, that the Board passed upon the Com-
pany's exceptions to the Regional Director's report overruling ob-
jections to the conduct of the representation case election, and certified
the Union as the collective bargaining representative of the employees
in the appropriate unit. Before that date, more specifically on April
3 We do not agree with the Respondents ' contention that the decision in N. L. R. B v.
Shawnee Milling Company, d/b/a Paula Valley Milling Company, 184 F. 2d 57 (C. A. 10)
controls the disposition of the commerce aspect of this case. Even assuming the applica-
bility of that decision to this matter, the Board, with due respect to the opinion of the
Court of Appeals for the Tenth Circuit, is disposed to adhere to its original determination
in the Shawnee case until the Supreme Court of the United States decides against the
Board on such an issue.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14, 1950, the Company informed the Union that it was proper to
wait until the Board had ruled upon the Regional Director's report
and certified the Union before entering into negotiations. While the
Respondents' later conduct, detailed in full in the Intermediate Re-
port, casts some doubt upon the good faith of the Company's precer-
tification stand for postponement of bargaining, the fact remains
that the Union's majority status as well as the question concerning
representation were not resolved until the Board's certification issued.
The date of the Company's first postcertification refusal to meet
with the Union occurred on April 25, 1950. Accordingly, we date
the Company's refusal to bargain in violation of the Act from on
and after April 25, 1950.
4. For the reasons given in the Intermediate Report, we agree with
the Trial Examiner that the Corporation violated Section 8 (a) (5)
and (1) of the Act by refusing to bargain collectively with the Union
on June 25, 1950, and at all times thereafter.
The Remedy
As stated in the Intermediate Report, in the latter part of May
1950, the corporate name of the Company was officially and legally
changed to Harbor Realty & Finance Company. Under these circum-
stances, the Board's remedial order should be directed to the Realty
Company. The Realty Company, however, has ceased its automotive
sale and repair operations, having sold the assets of its automotive
business to the Corporation and leased its premises to the Corporation.
We shall therefore modify our usual remedial order to take into ac-
count these changes. We shall order the Realty Company forthwith
to cease and desist from refusing to bargain collectively with repre-
sentatives of its employees, subject to the provisions of Section 9 (a)
of the Act; 4 and because of the interrelationship between the Realty
Company and the Corporation, which is described in the Intermediate
Report and which in our opinion makes eminently possible the reac-
quisition by the Realty Company of its former automotive business,
we shall order the Realty Company, in the event that it has resumed
or hereafter resumes the Corporation's automotive sale or repair op-
erations, to cease and desist from refusing to bargain with the Union
and to bargain collectively with the Union upon request.5
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
South Carolina Granite Company, et al., 58 NLRB 1448, 1466, et seq.
Ibid.
HARBOR CHEVROLET COMPANY 1329
A. The Respondent Realty Company, the Harbor Realty & Finance
Company, Long Beach, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the representatives of its
employees, subject to the provisions of Section 9 (a) of the Act.
(b) In the event it is operating or hereafter operates its former
automotive sale and repair business at Lou, Beach, California, refus-
ing, upon request, to bargain collectively with International Associ-
ation of Machinists, District Lodge #94, for its Local Lodge 1126,
as the exclusive representative of its employees in the appropriate unit
with respect to rates of pay, wages, hours of work, and other con-
ditions of employment.
(c) In any other manner interfering with the efforts of its employee
representatives to bargain collectively with the Respondent.
2. Take the, following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with the representatives of
its employees, subject to the provisions of Section 9 (a) of the Act.
(b) In the event that Respondent is operating or hereafter operates
its former automotive sale and repair business, upon request bargain
collectively with International Association of Machinists, District
Lodge #94 for its Local Lodge 1126, as the exclusive representative
of all the employees with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, in the following ap-
propriate unit : All auto mechanics, fender and front-end men, radiator
repairmen, auto trimmers, tune-up mechanics, body and fender re-
pairmen, and all employees in the automotive repair department, ex-
cluding the auto painters, parts men, delivery men, janitors, lube men,
auto washers, polishers, office and clerical employees, watchmen,
guards, professional employees, and all supervisors as defined in the
Act.
(c) In the event that Respondent is operating or hereafter operates
its former automotive sale or repair business, post at its premises in
Long Beach, California, copies of the notice attached hereto as Ap-
pendix A.6 Copies of said notice, to be supplied by the Regional
Director for the Twenty-first Region (Los Angeles, California), shall,
after being duly signed by the Respondent's representative, be posted
by it and maintained for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , there shall be inserted before the words "A Decision and Order ," the words "A Decree
of,the United States Court of Appeals Enforcing "
943732-51-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director in writing within ten (10)
days from the date of this Order, and again within ten (10) days from
the future date (if any) when it shall have resumed operation of its
former automotive sale and repair business, what steps it has taken
to comply herewith.
B. The Respondent Corporation, Harbor Chevrolet Corporation,
Long Beach, California, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association
of Machinists, District Lodge #94, for its Local Lodge 1126, as the
exclusive representative of all the employees in the appropriate unit.
(b) In any other manner interfering with the efforts of the above-
named Union to bargain collectively with the Respondent.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Asso-
ciation of Machinists, District Lodge #94, for its Local Lodge 1126,
as the exclusive representative of all the employees with respect to
rates of pay, wages, hours of employment, and other conditions of
employment, in the following appropriate unit : All auto mechanics,
fender and front-end men, radiator repairmen, auto trimmers, tune-up
mechanics, body and fender repairmen, and all employees in the auto-
motive repair department, excluding the auto painters, parts nlen,
delivery men, janitors, lube men, auto washers, polishers, office and
clerical employees, watchmen, guards, professional employees, and all
supervisors as defined in the Act.
(b) Post in conspicuous places at its plant in Long Beach, Cali-
fornia, in all places where notices to employees are customarily posted,
copies of the notice attached hereto as Appendix B.7 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region (Los Angeles, California), shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by the Respondent
to insure that said notices shall not be altered, defaced, or covered
by any other material.
(c) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has taken
to comply herewith.
IIn 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."
HARBOR CHEVROLET COMPANY 1331
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 NOT in any manner interfere with the efforts of IN-
TERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #94,
FOR ITS LOCAL LODGE 1126, to bargain collectively, or refuse to
bargain with said Union as the exclusive representative of our
employees in the bargaining unit described herein.
WE WILL, upon request, bargain collectively with INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #94, FOR ITS
LOCAL LODGE 1126 as the exclusive representative of all our em-
ployees in the appropriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and if
an understanding is reached, embody such understanding in a,
signed agreement. The bargaining unit is:
All our auto mechanics, fender and front-end men, radiator
repairmen, auto trimmers, tune-up mechanics, body and f en-
der repairmen, and all employees in the automotive repair
department, excluding the auto painters, parts men, delivery
men, janitors, lube men, auto washers, polishers, office and
clerical employees, professional employees, watchmen,
guards, and all supervisors, as defined by the Act.
HARBOR FINANCE & REALTY COMPANY,
Employer.
By ------------------------------------------
(Representative) (Title)
Date--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relation&
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with the efforts of IN-
TERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LoDGE #94,
FOR ITS LOCAL LODGE 1126, to bargain collectively, or refuse to,
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with said Union as the exclusive representative of our em-
ployees in the bargaining unit described herein.
WE WILL, upon request, bargain collectively with INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE #94, FOR
ITS LOCAL LODGE 1126 as the exclusive representative of all our
employees in the appropriate unit with respect to rates of pay,
wages, hours of employment and other conditions of employ-
ment, and if an understanding is reached , embody such under-
standing in a signed agreement . The bargaining unit is :
All our auto mechanics , fender and front-end men, radia-
tor repairmen , auto trimmers , tune-up mechanics , body and
fender repairmen , and all employees in the automotive repair
department , excluding the auto painters , parts men , delivery
men, janitors , lube men, auto washers , polishers , office and
clerical employees , professional employees , watchmen,
guards , and all supervisors as defined by the Act.
HARBOR CHEVROLET CORPORATION,
Employer.
By -------------------------------------
(Representative ) ( Title)
Date--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Ralph H. Nutter, Esq, for the General Counsel.
James H. Nicoson, Esq., and Carter & Potruch, by Frederick A. Potruch, Esq.,
for the Respondent.
F. B Dunmire, Esq, for the Union.
STATEMENT OF THE CASE
Upon a charge , an amended charge, and a second amended charge 1 duly filed
on June 6 , July 14, and August 14 , 1950, respectively , by International Associa-
tion of Machinists , District Lodge #94, for its Local Lodge 1126 ,2 the General
Counsel of the National Labor Relations Board , herein called respectively the
General Counsel and the Board, issued his complaint against Harbor Chevrolet
Company and/or Harbor Realty & Finance Company and/or Harbor Realty Cor-
poration , herein jointly called the Respondents , alleging that the Respondents
had engaged in, and were engaging in, unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and ( 5) and Section 2 (6) and
I The original charge was filed against Harbor Chevrolet Company, the amended charge
was filed against Harbor Chevrolet Company and/or Harbor Chevrolet Corporation, and
the second amended charge was filed against Harbor Chevrolet Company and/or Harbor
EEealty and Finance Company and/or Harbor Chevrolet Corporation.
2 The original charge was filed by District -lr94 The amended charges were filed by
District Lodge #94 on behalf of its Local 1126.
HARBOR CHEVROLET COMPANY 1333
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint and the charges, together with notice of hear-
ing thereon, were duly served upon each Respondent and upon the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that since on or about April 12, 1950, the Respondents have, and each of them
has, refused to bargain collectively with the Union although the Union had been
selected and designated the collective bargaining representative by the Respond-
ents' employees in a certain appropriate unit.
On October 9, 1950, Harbor Chevrolet Corporation and Harbor Realty &-
Finance' Company each duly filed an answer denying the commission of the
alleged unfair labor practices.
Pursuant to notice, a hearing was held on November 14, 1950, at Los Angeles,
California, before the undersigned, Howard Myers, the duly designated Trial
Examiner. Each of the Respondents and the General Counsel were represented
by counsel ; the Union by an official thereof. All parties participated in the
bearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence pertinent to the issues.
During the course of the General Counsel 's case-in-chief, the Respondents'
counsel moved to dismiss the complaint for lack of jurisdiction or, in the alter-
native, if the Board in fact did have jurisdiction, the Board should not assert
it because of the local character of the Respondents' business. Decision thereon
was reserved. The motion, for the reasons set forth below, is hereby denied.
At the conclusion of the General Counsel's case-in-chief, the Respondents'
counsel renewed the motion to dismiss the complaint for lack of jurisdiction.
Decision thereon was reserved . The motion is hereby denied. The Respondents'
counsel then moved to dismiss the complaint for lack of proof. The motion was
denied. At the conclusion of the taking of the evidence , the General Counsel's
motion to conform the pleadings to the proof with respect to minor variances,
but not to include any new unfair labor practice, was granted without objection.
Counsel for the Respondents then renewed the motions to dismiss for lack of
proof and for lack of jurisdiction . Decision thereon was reserved . The mo-
tions are hereby denied. The General Counsel then argued orally. Counsel for
the Respondents and the representative of the Union waived oral argument.
The parties were then informed that they might file briefs or proposed findings
of fact and conclusions of law, or both, with the undersigned on or before Novem-
her 29.a A brief has been received from counsel for the Respondents which has
been carefully considered by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The site of the alleged unfair labor practices is a Chevrolet new automobile
and truck agency, repair shop, and used car department located at 601 East
Anaheim Street, Long Beach, California.
For some years last past the agency, which has always operated under an
exclusive dealer's franchise with Chevrolet Motors Division, General Motors
Corporation, herein called Chevrolet Motors, was owned and operated by Har-
bor Chevrolet Company, herein called the Company. Until February 1949, the
Company's sole stockholder was Berna C. Martin. During that month, Martin
8 Subsequently the time was extended to December 11.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gave his son, Berna, Jr., 6.25 per cent of the capital stock of the Company and
simultaneously entered into an agreement with him whereby the said son was
given an option to purchase an additional 18.75 per cent of the capital stock for
$84,000; payment for the said additional stock was spread over a period of time.
At the time of the hearing herein, Berna, Jr., had paid only $15,000 toward the
$84,000 indebtedness.
On December 14, 1949, Martin died. At the time of his death, and for at least
a year prior thereto, Martin was president, general manager, and a director
of the Company ; Berna, Jr., was its executive vice-president ; and Chester F.
Ilenson was its new car sales manager.
By the terms of Martin's will, the bulk of his estate, including his interest
in the Company, was left in trust for the benefit of his widow and Berna, Jr.,
until the latter reaches-the age of 35, at which time the corpus of the trust is
to be divided equally between the beneficiaries thereof.
Upon Martin's death, or shortly thereafter, Henson was put in complete
charge of the Company's affairs and he remained its managerial head continu-
ously thereafter. In January 1950, Berna, Jr., was elected president and a
director of the Company. On or about March 1, Mrs. Geneva Church, an aunt
of Berna, Jr., and the executrix of Martin's estate, was elected an officer and a
director of the Company.
In the latter part of May 1950, the Company's corporate name was officially
and legally changed to Harbor Realty & Finance Company, herein called Realty
Company, with Berna, Jr., Henson, and Church retaining their respective
positions therein. At the same time, the Harbor Chevrolet Corporation came into
being with Berna, Jr. its president and director ; Henson its vice-president,
general manager, and director ; and Church a director. Fifty-five percent
of the Corporation's capital stock was issued to Berna, Jr., and the remain-
ing 45 percent was issued to Henson. The latter borrowed $30,000 from
the Realty Company to help defray the cost of the said stock. Besides owing
his father's estate $69,000, the balance due on the purchase price of the 18 75
percent of the Company's stock. Berna, Jr., borrowed some money from a bank
in order to finance the purchase of his interest in the Corporation.
With its corporate structure arranged, the Corporation was ready to take over
the Company's operations. The latter's entire establishment, facilities, stock
on hand, and equipment was purchased by the Corporation for about $160,000.
The Corporation then leased from its owner, the Realty Company, the building
which housed the agency, and immediately thereafter the Corporation obtained
from Chevrolet Motors an exclusive franchise for the same territory for which
the Company formerly had the franchise.
With the sale of its business to the Corporation, the Realty Company ceased
its automobile operations and since that time has confined itself solely to real
estate and finance business. The Corporation, however, retained substantially
all the Realty Company's automotive employees, and otherwise has operated
the automobile business without any outward evidence of change of personnel
or supervision, except the change of name of the employer of the employees
here involved ; Berna, Jr., remained president with Henson the managerial head
of the organization.
By letter dated February 2, 1950, Chevrolet Motors terminated the Company's
franchise. Nonetheless the latter continued to purchase and sell new Chevrolet
automobiles and trucks until the advent of the Corporation.
From January 1 through May 31, 1950, the Company purchased from Chevrolet
Motors new automobiles and trucks valued at $458,920.83, and parts and ac-
cessories valued at $55,450.19. In addition, the Company purchased, or allowed
on the purchase price of new automobiles or trucks, used cars valued at $131,500.88
HARBOR CHEVROLET COMPANY 1335
(including reconditioning costs). During the same period, the Company's sales
of new automobiles and trucks amounted to $697,241.68 and its sales of used
cars amounted to $142,822 50.
For the period from June 1 through September 30, 1950, the Corporation pur-
chased from Chevrolet Motors new automobiles and trucks valued at $575,727.12
and parts and accessories valued at $64,715.49. In addition, the Corporation
purchased, or allowed on the purchase price of new automobiles or trucks, used
cars valued at $169,236.22. During the same period, the Corporation's sales
of new automobiles and trucks amounted to $759,567.81 and its sales of used
cars amounted to $210,828.01.
Chevrolet Motors maintains, and during all time material herein maintained,
a new automobile and truck assembly plant at Van Nuys, California, from which
the Company obtained, and the Corporation now obtains, its new automobiles
and trucks. For the fiscal year ending September 30, 1950, motor vehicle produc-
tion parts necessary for the completion of new automobiles and trucks, other
parts, and accessories valued in excess of $5,000,000 were shipped to the said
Van Nuys plant of Chevrolet Motors, of which amount approximately 43 percent
was shipped from points located outside the State of California. During the
aforesaid fiscal period, the Company's and the Corporation's combined pur-
chases from Chrevolet Motors amounted to more than $500,000 but were less
than $1,000,000.
All the Company's sales were made, and the Corporation's sales are made,
either locally or within the State of California.
Counsel for the Respondents contended at the hearing, and in their brief, that
the complaint should be dismissed because, among reasons, the Respondents are
not engaged in commerce within the meaning of the Act, and even if they were so
engaged, the Board should not assert jurisdiction because of the local character
of the Respondents' business.
, Upon the admitted facts, the Act is plainly applicable to the Respondents,
and each of them, and the employees here involved. The test of the Act's ap-
plicability, as laid down by the Supreme Court in the Jones & Laughldn case,'
and repeatedly reaffirmed and applied by that Court in subsequent decisions,'
is whether a "stoppage of . . _ operations by industrial strife" would or may
result in interruption of, or interference with, the free flow of goods in inter-
state commerce and foreign commerce.
The Company's purchases were received, and the Corporation's purchases are
received, almost entirely from the Van Nuys, California, plant of Chevrolet
Motors where new Chevrolet automobiles and trucks are assembled. Forty-three
percent of the materials used in assembling said automobiles and trucks are
shipped to that plant from points located outside the State of California. It is
plain that a stoppage of the Respondents' operations would immediately and di-
rectly operate to stop or curtail the interstate movement of goods to the Respond-
ents' establishment and hence curtail the interstate movement of goods to Chev-
rolet Motors' Van Nuys plant. The jurisdictional test is thus completely satisfied
as the applicable decisions hold.
The fact that all the Respondents' sales are, and were, made locally or within
the State of California is, of itself, of no importance. The flow of commerce is
the same, from whichever end it is viewed, and the protective power of the
Act does not vary by reason of the point from which the flow is viewed.
N. L. R. B. v. Newport News Shipbwildtng & Drydock Co., 308.U. S. 241. °
* 301 U. S. 1.
5 Santa Cruz Fruit Packing v. N. L R. B., 303 U. S. 453; Consolidated Edison Co. v.
N. L R. B., 305 U. S. 197; N. L. R. B . v. Fa nblatt, 306 U. S. 601; N. L. R. B. v.
Rradtord Dyeing Ass'n, 310 U. S. 318.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents further argue that the Board, even if it found that the Re-
spondents were engaged in commerce within the meaning of the Act, should not
assert jurisdiction because to do so would not effectuate the policies of the Act,
because of the local character of the Respondents' business and for the further
reason that in several recent decisions the Board had declined to assert juris-
diction over employers operating under exclusive franchises or sales agreements
similar to the Respondents' agreements with Chevrolet Motors and whose inter-
state purchases and sales were below a certain dollar amount. Assuming that
the Board, in the cases cited by the Respondents 9 and in others, had declined to
assert jurisdiction, that fact alone would not preclude the Board from asserting
it here.'
On April 19, 1950, the Board did, in fact, assert jurisdiction over the Com-
pany and, as found hereinafter, on that date certified the Union as the exclusive
collective bargaining representative of the Company's employees in a certain ap-
propriate unit. Since the Board already has found the Company subject to the
Act, the Board's power to grant affirmative relief in the instant case is incon-
testable. Furthermore, in recognition of the fact that the sale and service of
new automobiles on a franchise basis is an integral segment of the distribution
of automobiles on a Nation-wide basis, the Board has held that such business is
subject to the Act" The Board's assertion of jurisdiction over this industry,
moreover, has been specifically approved by the courts.
Accordingly, the undersigned concludes and finds that during all times material
herein the Respondents were, and now are, engaged in commerce within the
meaning of the Act, and further finds that it will effectuate the policies of the
Act for the Board to assert jurisdiction.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, District Lodge No. 94, and Local
Lodge 1126 are labor organizations admitting to membership employees of each
of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively Mirth the Union
1. The appropriate unit and the Union's majority representation therein
On December 30, 1949, the Board issued its Decision and Direction in a repre-
sentation proceeding,' finding, cuter alia, all the Company's auto mechanics, fen-
der and front-end men, radiator repairmen, auto trimmers, tune-up mechanics,
body and fender repairmen, and all employees in the automotive repair depart-
ment, excluding the auto painters, parts men, delivery men, janitors, lube men,
auto washers, polishers, office and clerical employees, watchmen, guards, pro-
8 Among them, Dorn's House of Miracles, 91 NLRB 565; Federal Dairies Co, Inc,
91 NLRB 544; Stanislaus Implement Co', 91 NLRB 618; Hollow Tree Lumber Cos,
91 NLRB 894; Borden Company, 91 NLRB 628
4 See N L R B v Baltimore Transit Co , 140 F 2d 51 (C A 4)
8 Liddon White Truck Co , Inc, 76 NLRB 1181 ; Bell-Wyman Company, 79 NLRB 1424;
Puritan Chevrolet, Inc, 76 NLRB 1243; Adams Motors, Inc, 80 NLRB 1518; Lawrence
Holbrook, et al, 80 NLRB 1679; Valley Truck and Tractor Co , 80 NLRB 444; Harrys
Cadillac-Pontiac Company, et at, 81 NLRB 1; Earl McMillian Company, 81 NLRB 639;
Jack Taylor, et at, 85 NLRB 1336; Rome Lincoln-Mercury Corp , 86 NLRB 387; Rowan
Motor Go, 90 NLRB No 156, Massachusetts Motor Car Co , Inc, 90 NLRB No. 186;
Baxter Bros, 91 NLRB 1480; Tuscaloosa Lincoln-Mercury Company, 92 NLRB 132;
N L R B v M. L. Townsend, 185 F. 2d 378 (C. A 9) ; N L R B v Henry Levaur, Inc,
115 F. 2d 105 (C. A. 1) ; Williams Motor Co v. N. L R. B., 128 F. 2d 960 (C A 8) ;
N. L R B v J C. Lewis Motor Co, Inc, 180 F. 2d 254 (C. A. 5).
'Unpublished. Cases Nos. 21-RC-843 and 21-RC-911.
HARBOR CHEVROLET COMPANY 1337
fessional employees, and all supervisors constituted a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.-
The Union received a majority of the valid ballots cast in an election held on Jan-
uary 19, 1950, pursuant to the said Decision and Direction of Election. There-
after and on April 19, 1950, the Board certified the Union as the exclusive repre-
sentative of all the employees in the aforesaid appropriate unit.10 Accordingly,
the undersigned finds that all the Company's auto mechanics, fender and front
men, radiator repairmen, auto trimmers, tune-up mechanics, body and fender re-
pairmen, and all employees in the automotive repair department, excluding the
auto painters, parts men, delivery men, janitors, lobe men, auto washers, polishers,
office and clerical employees, watchmen, guards, professional employees, and all
supervisors as defined by the Act, constitute, and at all times material herein
constituted, a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act. The undersigned further finds that on
January 19, 1950, and at all times material thereafter, the Union was, and now
is, the duly designated bargaining representative of a majority of the employees
in the aforesaid appropriate unit and that, pursuant to the provisions of Sec-
tion 9 (a) of the Act, the Union was at all such times, and now is, the exclusive
representative of all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and that such unit insures
to the employees here involved the full benefit of their right to self-organization
and collective bargaining and otherwise effectuates the policies of the Act.
2. The refusal to bargain
Under date of January 23, 1950, F. B. Dunmire, senior business representative
of District Lodge #94, wrote the Company requesting an appointment for the
purpose of discussing a collective bargaining contract covering the employees
in the appropriate unit. The letter was received by the Company on January
24, but it made no reply.
On April 12, Dunmire again wrote the Company requesting an appointment.
The Company's attorney, Frederick A. Potruch, Esq., replied by letter dated
April 14, stating that since the Company had filed exceptions with the Board
to the Regional Director's report overruling the Company's objections to the
conduct of the January 19 election, he saw no reason to discuss a collective
bargaining agreement until the Board had passed upon the aforesaid exceptions.
On April 25, Potruch again wrote Dunmire as follows:
As you are aware, Harbor Chevrolet Company is no longer a Chevrolet
franchise . Since the death of Mr. Bernie Martin the business has been run
io The Respondents attack the validity of the certification on the ground that the
certification does not clearly state the unit for which the Union had been certified. In
the representation proceedings two petitions were consolidated , one petition ( Case No.
21-RC-911) was filed by the Union herein and the other by an affiliate of the Teamsters'
Union (Case No. 21-RC-843). The latter's petition requested a unit of all parts
department employees , lubrication men, washers, polishers , pickup and delivery employees,
janitors, and cleanup men The Board's records show that the Board ordered two
separate and distinct elections , one with the Teamsters on the ballot alone and the other
with only the Union on the ballot, that the Teamsters lost its election, whereas the Union
won its election , that on January 24, 1950, the Company filed "Objections to conduct
affecting results of election" in Case No 21-RC-911 , that on February 28, 1950, the
Regional Director in that case issued his report overruling the objections ; that on or
about March 14, 1950, the Company filed with the Board exceptions to the Regional
Director's report overruling the objections; and that on April 19, 1950, the Board (Case
No. 21-RC-911) certified the Union as the exclusive representative in the aforesaid
appropriate unit. Under the circumstances , the undersigned finds no merit in the
Respondents ' contention that the Board ' s certification does not clearly state for which
unit the Union had been certified.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the manager, Mr. Henson for and on behalf of the Estate for the purpose
of liquidating the company.
For this reason there is no one who could sit down at this time, or at any
time as I see it, and negotiate a contract with you, and under the circum-
stances I don't see that there is anything that can be done. Eventually
I assume that a new franchise will be issued to new individuals but I don't
know whether they will buy the assets of Harbor or not. In other words,
the situation at the present time is too speculative to even offer any facts.
On June 14, Potruch wrote the Board's Twenty-first Regional Office, in response
to a letter written by the Regional Director regarding this matter, wherein he
stated that Chevrolet Motors had issued a new franchise for the area covered
by the Company's former franchise and that the recipients thereof had formed
a new corporation and had purchased, or were about to purchase, the Company's
assets, and therefore the Company "is in no position to negotiate with the union
and also for the further reason that it has no employees in a bargaining unit."
On June 19, Potruch wrote to the said Regional Office stating that the Com-
pany was no longer in the automobile business, having sold its assets to the Cor-
poration, and that concern would thereafter operate the business formerly con-
ducted by the Company.
On June 22, Dunmire wrote the Corporation requesting an appointment to ne-
gotiate a collective bargaining agreement covering the employees in the unit
certified by the Board.
On, or about June 26, Lewis R. DeWolf, a business representative of District
Lodge #94, called upon Henson and requested the latter to fix a date for the
purpose of negotiating a collective bargaining contract. Henson refused to do
so stating that the Corporation had no "labor problems" and that DeWolf should
see "Potruch, the attorney for the old company."
On June 28, Potruch replied to Dunmire's letter of June 22, wherein he stated
he saw no reason for meeting with the Union for it did not represent the ma-
jority of the Corporation's employees.
Upon the foregoing facts, and upon the entire record as a whole, it is mani-
festly clear, and the undersigned finds, that on January 24, 1950; 1 and at all
times thereafter, the Company and the Realty Company violated their statutory
duty to bargain collectively with the Union as the exclusive representative of
all the employees in the unit heretofore found appropriate, in violation of Sec-
tion 8 (a) (5) and (1) of the Act thereby interfering with, restraining, and
coercing their employees in the exercise of the rights guaranteed in Section 7
thereof 12 It is likewise clear that the Corporation failed to perform its statu-
tory obligation to bargain collectively with the Union on June 26, 1950,13 and
all times thereafter. Accordingly, the undersigned finds that by such refusal
to bargain collectively with the statutory representative of the employees in the
heretofore found appropriate unit, the Corporation violated Section 8 (a) (5)
11 The date upon which the Company received the Union's demand to bargain
"The fact that the Company, or the Realty Company, is no longer engaged in the
automobile business does not prevent the Board from issuing an order directing the
Company and the Realty Company to cease and desist from engaging in unfair labor
practices and to take appropriate affirmative action. Cowell Portland Cement Company,
40 NLRB 652; Cleveland-Cliffs Iron Company, 30 NLRB 1093; South Carolina Granite
Company, 58 NLRB 1448. Moreover, unless the Company's and the Realty Company's
unfair labor practices are remedied they will have a discouraging effect on the organiza-
tional activities of the employees of the Corporation. N. L. R. B. V. Boswell Co , 136 F. 2d
585 (C. A. 9) ; South Carolina Granite Company, supra.
' The date upon which the Corporation received the Union's demand to bargain.
HARBOR CHEVROLET COMPANY 1339
and (1 ) of the Act thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 thereof.
It is the contention of the Corporation that it is not responsible for, and
therefore it cannot be held accountable for, the unfair labor practices com-
mitted by the Company or by the Realty Company, if, in fact, they, or either
of them, did commit any such acts,' for the reason that it is not the Company's
or the Realty Company's legal successor, but is merely a purchaser for value of
certain assets of the Company or of the Realty Company. The contention is
without merit.
The record clearly shows that since the Corporation's acquisition of the Com-
pany's or the Realty Company's automobile business it has occupied the premises
formerly held and occupied by the Company and the Realty Company under a
lease from the Realty Company, and has conducted the automobile business of
the Company and of the Realty Company without any change of personnel or
supervision. It is true that there is no evidence in the record that the Company
or the Realty Company sold the automobile business to the Corporation in order
to evade their obligations under the Act. However, the evidence clearly reveals
that the Corporation acquired the business with full knowledge of the existence
of the unfair labor practices here involved and that nonetheless the Corporation
continued to operate the business without any discernible change in labor policy.
Where, as here, "no essential attribute of the employment relationship has
been changed as a result of the transfer [of the assets and business], the
[Board's] certification continues with undiminished vitality to represent the
will of the employees with respect to their choice of a bargaining representa-
tive, and the consequent obligation to bargain subsists, nothwithstanding the
change of legal ownership of the business enterprise." w
In the Miller Lumber case, the Board also stated :
Nor is it determinative that the successor-owner did not participate in
the prior Board proceedings that resulted in certification of the bargaining
representative [citing the Blavr and Stonewall cases]. This is but an ap-
plication of the settled rule that the industrial strife that the Act seeks to
avoid or mitigate, and the validity instituted bargaining relationship it seeks
to foster, are "no less an object of legislative solicitude where contract,
death or operation of law brings about a change of ownership in the em-
ploying agency " [Emphasis added.] 1e
Moreover, the Board and the courts have uniformly and repeatedly held
that a Board's certification raises a presumption of continuing majority repre-
sentation by a statutory representative and that in the interest of stability of
administration of the Act, such a certification remains in force for a reasonable
period of time, normally 1 year, even in the face of an apparent intervening
change in the wishes of the employees" But there is no showing here, or even
a contention made, that there has been a change in the organizational preferences
"The Company and the Realty Company contended that they did not refuse to bargain
with the Union because they were not obliged to do so because the Board's certification
is faulty and hence not valid As found above, this contention is without merit.
15 Miller Lumber Company, 90 NLRB 1361. See also N. L. R. B. v. Blair Quarries, Inc.,
152 F. 2d 25 (C. A. 4) ; Stonewall Cotton Mills, 80 NLRB 325, and cases cited therein.
16N L. It. B. v. Adel Clay Products Co. 134 F. 2d 342, 346 (C. A. 8) ; N. L. it. B. v.
Baldwin Locomotive Works, 128 F. 2d 39, 43 (C. A. 3) ; Bethlehem Steel Co. v. N. L. R. B.,
120 F 2d 641, 650-51 (C. A. L C ) ; N. L. R B. v. Colton, 105 F. 2d 179, 183 (C. A. 6) ;
Allan W. Fleming, Inc, 91 NLRB 612.
17 N. L. It. B. v. Appalachian Electric Power Co., 140 F. 2d 217 (C A. 4) ; see also
N. L. R. B. v. Century Oxford Mfg. Co., 140 F. 2d 541 (C. A. 2) ; May Department Stores
Co. v. N. L. R. B, 326 U. S. 376, aff'g 146 F. 2d 66 (C. A. 8).
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees It therefore follows, relying upon the familiar doctrine that
a state of facts once shown to exist is presumed to continue unless the contrary
is demonstrated, that the employees still desire the Union to represent them for
the purposes of collective bargaining
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, and each of them, set forth in Section III,
above, occurring in connection with the operations of the Respondents described
in Section I, above, have a close. intimate, and substantial relation to trade, traf-
fic, 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 Respondents have, and each of them has, engaged in unfair
labor practices, it will be recommended that they cease and desist from such
conduct and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondents have, and each of them has, refused unlaw-
fully to bargain with the Union, it will be recommended that Respondents cease
and desist from such refusal and upon request bargain with the Union in re-
spect to wages, hours, and other terms and conditions of employment.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge #94, and Local
Lodge 1126 are labor organizations within the meaning of Section 2 (5) of the
Act.
2. All the Respondents' auto mechanics, fender and front-end men, radiator
repairmen, auto trimmers, tune-up mechanics, body and fender repairmen, and
all employees in the automotive repair department, excluding the auto paint-
ers, parts men, delivery men, janitors, lube men, auto washers, polishers, office
and clerical employees, watchmen, guards, professional employees, and all super-
visors as defined by the Act, constitute, and during al times material herein
constituted, a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
3. International Association of Machinists, District Lodge #94, for its Local
Lodge 1126, was on January 19, 1950, and at all times thereafter has been, the
exclusive representative of all the employees in such unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on January 24, 1950, and thereafter, to bargain collectively with
International Association of Machinists, District Lodge #94 for its Local Lodge
1126, the Respondent Company (Respondent Realty Company) has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By its said refusal, the Respondent Company (Respondent Realty Com-
pany) interfered with, restrained, 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.
SOUTHWEST TRUCK BODY COMPANY 1341
6. By refusing, on June 26, 1950, and thereafter, to bargain collectively with
International Association of Machinists, District Lodge #94 for its Local Lodge
1126, the Respondent Corporation has engaged in and is engaging in, unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
7. By the said refusing the Respondent Corporation 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.
8 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.]
SOUTHWEST TRUCK BODY COMPANY 1 and INTERNATIONAL ASSOCIATION
or MACHINISTS, DISTRICT No. 9, PETITIONER . Case No. 14-RC-1277.
April 11, 1951
Decision and Direction of Elections
Upon a, petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harry G. Carlson, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.2
4. The Petitioner seeks to combine into a single unit all the pro-
duction and maintenance employees employed at the Employer's two
plants, Plant 1 in St. Louis, Missouri, and Plant 2 in East St. Louis,
Illinois. The Intervenor, having served for at least 10 years as the
bargaining agent of the production and maintenance employees
assigned to the plant known as Plant 1, contends that these employ-
The name of the Employer appeals as amended at the hearing.
The Intervenor contends that its contract with the Employer covering the employees
employed at the Employer's plant on South 4th Street, St Louis, Dlissouri, is a bar to this
proceeding This contention is lacking in merit The contract dated July 7, 1950,
provides, inter alia, for maintenance of membership in the Intervenor However, because
the Intervenor has not been certified by the Board under Section 9 (e) (1) of the Act
as being authorized to execute such a union-security provision, we find that the contract
is not a bar to a present determination of representatives. C Hager & Sons Hinge
Manufacturing Company, 80 NLRB 163
93 NLRB No. 237.