Phelps Brothers Service

National Labor Relations Board - Board Decisions

Mar 16, 1951

93 N.L.R.B. 836 (N.L.R.B. 1951)

836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PHELPS BROTHERS SERVICE and LODGE No. 750, INTERNATIONAL As-
SOCIATION OF MACHINISTS. Case No. 30-CA -125. March 16, 1951
Decision and Order
On January 8, 1951, Trial Examiner Maurice M. Miller, upon a
stipulated record, issued his Intermediate Report in the above-entitled
proceeding, finding that the Respondent had engaged in and was en-
gaging. 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. There-
after, the Respondent filed exceptions to the Intermediate Report.
The Board 1 has considered the Intermediate Report, the excep-
tions, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following additions:
The Respondent operates its business under an exclusive franchise
to sell new Nash automobiles at retail in the city of Colorado Springs,
Colorado. During the year 1949, the Respondent purchased approxi-
mately $195,000 worth of new cars and accessories, shipped to it for
the most part from Kenosha, Wisconsin, and approximately $28,000
worth of Nash parts, manufactured in Milwaukee, Wisconsin. On
the basis of these facts, in addition to those relating to the Respond-
ent's business set forth in the Intermediate Report, we agree With the
Trial Examiner that the Respondent is engaged in commerce with-
in the meaning of the Act, and find that it will effectuate the policies
of the Act to assert jurisdiction over the Respondent.2
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 the Respondent, Phelps Brothers
Service, Colorado Springs, Colorado, their agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing, upon request, to bargain collectively with Lodge No.
750, International Association of Machinists, as the exclusive rep-
resentative of all mechanics at the Respondent's retail automobile
agency and garage at Colorado Springs, Colorado, including body
'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 Kelly A. Scott, 93•NLRB 654; Davis Motors, Inc , 93 NLRB 206.
93 NLRB No. 136.
PHELPS BROTHERS SERVICE 837,
and fender men, greasers , washers, parts men, painters , and the body
Shop handy man, but excluding office and clerical employees , super-
visors as defined in the Act, and all other employees;
(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 Lodge No. 750, In-
ternational Association of Machinists , as the exclusive representa-
tive of all employees in the above-described appropriate unit, and
if an understanding is reached , embody such understanding in a
signed agreement;
(b) Post at its establishment in Colorado Springs, Colorado, the,
notice attached hereto and marked Appendix . 3 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the Respondent , be posted by the
Respondent immediately upon receipt thereof and be maintained by
it for sixty ( 60) consecutive days thereafter in conspicuous places, in-
cluding-all places where notices to employees are customarily -posted.
Reasonable 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 Seventeenth Region,
Kansas City , Missouri , in writing, within ten ( 10) days from the date
of this Order, what steps the Respondent has taken to comply here-
with.
Appendix
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 wil.I, bargain collectively upon request with LODGE No. 750,
INTERNATIONAL ASSOCIATION OF MACHINISTS as the exclusive
representative of all the employees in the bargaining unit de-
scribed herein, with respect to their rates of pay, wages, hours
of work, and other terms or conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All the mechanics at our retail automobile agency and
garage at Colorado Springs, Colorado, including body and
3 In the event that this Order is enforced by 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."
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fender men, greasers, washers, parts men, painters, and the
body shop handy man, but excluding office and clerical em-
ployees, supervisors as defined in the Act, and all other
employees.
WE WILL NOT in any manner interfere with the efforts of the
above-named union to bargain collectively with us. All our em-
ployees are free to become or remain members of this union, or
any other labor organization.
PHELPS BROTHERS SERVICE,
Employer.
Dated------------------- By -------------------------------
(Representative ) ( Title)
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
STATEMENT OF THE CASE
After investigation of a charge duly filed by Lodge No. 750, International
Association of Machinists, designated herein as the Union, the General Counsel
of the National Labor Relations Board' in the name of the Board, caused the
Regional Director of its Seventeenth Region, at Kansas City, Missouri, to issue
a complaint dated October 16, 1950, against Phelps Brothers Service, a co-
partnership doing business in Colorado Springs, Colorado, herein called the
Respondent. The complaint alleged that the Respondent engaged and has
continued to engage in unfair labor practices affecting commerce, within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, as amended and reenacted in the Labor
Management Relations Act of 1947, 61 Stat. 136, designated herein as the Act-
With respect to the unfair labor practices, the complaint alleged, in sub-
stance, that the Respondent has refused, and continues to refuse, to bargain
collectively with the Union as the duly designated and' certified representative
of all of its employees in a unit appropriate for the purposes of collective bar-
gaining, and that its course of conduct in that connection involves unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act.
In due course, on October 30, 1950, the Respondent filed an answer, and a
motion to dismiss the complaint. Therein, it admitted certain jurisdictional
allegations of the complaint and admitted the status of the Union as a labor
organization, but denied the appropriateness of the unit alleged to be appropriate
for the purposes of collective bargaining-or any unit whatsoever-under the
Act, in relation to its employees, and specifically alleged that the Board had
no jurisdiction over it or the subject matter of the instant case, on the ground
that it is not engaged in interstate commerce or any business activity which
affects such commerce, as defined in the Act. It therefore denied the applica-
bility of the statute to its course of conduct, as alleged in the complaint, and
denied the commission of any unfair labor practice. Its motion to dismiss was
bottomed upon a similar contention.
I The General Counsel and his representative in this case are designated herein as the
General Counsel, and the National Labor Relations Board as the Board.
PHELPS BROTHERS SERVICE 839
Thereafter, in a stipulation, the Respondent by its attorney, Thomas M.
Burgess ; the Union by its representative, Earnest M. Gibson ; and Margaret L.
Fassig, attorney for the General Counsel, on behalf of the National Labor Rela-
tions Board, waived notice and hearing in the case. The parties agreed that
the entire record in this case was to be made up of certain documents, listed
and,. described in the stipulation or attached to it, in lieu of testimony taken and
documentary evidence received by a Trial Examiner of the Board, and that the
entire record-thus defined-would be filed with the Board's Division of Trial
Examiners for the issuance of an Intermediate Report. The parties reserved
their right, after the issuance of an Intermediate Report, to argue orally before
the Board upoii the record as defined, if the Board deemed oral argument de-
sirable, the right to file briefs with the Board, and the right to litigate-before
a proper United States Court of Appeals-any question as to the application of
the Act, as amended, to the Respondent's business.
Pursuant to the stipulation, the record in this case was submitted to me, a
Trial Examiner duly designated by the Chief Trial Examiner, for the prepara-
tion of an Intermediate Report and Recommended Order. No party reserved a
right, in the stipulation, to file a brief, with me, and no briefs.have been received.
FINDINGS OF FACT
In the light of the aforesaid stipulation, and upon the entire record in the case,
I make the following findings of fact :
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Phelps Brothers Service, is a partnership composed of J. F.
Phelps, Robert W. Phelps, and W. Field Phelps which has been doing business
under its firm name, in Colorado Springs, Colorado, since February 1939. At all
times material, the Respondent was, and it is now, engaged in business as an
automobile dealer, under a dealer franchise issued by the Nash-Kelvinator Cor-
poration ; as such it is engaged in automobile sales, service, and repair work at
its Colorado Springs, Colorado, place of business. In the course and conduct of
its business, during the 1949 calendar year, the Respondent's total sales amounted
to approximately $415,000; of this amount, $220,000 was derived from its sales
of new cars and accessories Sales of used cars and parts and accessories, during
the same period, amounted to $75,000 and $38,000, respectively. The new cars
sold by the Respondent were ordered by it through the Denver Zone Office of
the Nash-Kelvinator Corporation, and were, for the most part, shipped to the
Respondent by rail from Kenosha, Wisconsin? All of the Respondent's sales
2 The Respondent denies, in its answer, that new cars were shipped directly to it at
Colorado Springs, Colorado, and specifically alleges that such cars were shipped and
Invoiced to the Universal Credit Corporation by Nash-Kelvinator, their manufacturer.
And the record, as it stands, does warrant a finding, in the absence of contradictory evidence,
that the manufacturer bills the Universal Credit Corporation, a commercial credit organi-
zation , at its Kenosha, Wisconsin, office for automobiles ultimately scheduled for delivery
to the Respondent ; that the Kenosha office of the aforesaid "finance company" pays for
them and invoices them to its Denver office, and that its Denver office bills the Respond-
ent-receiving payment from it when the cars are sold. The materiality of the record In
this respect, however, would seem to be doubtful ; whatever arrangements with respect to
legal title the Respondent may be required to make in financing its purchases, it is clear
that Nash-Kelvinator as the manufacturer, ships its automobiles, or most of them, directly
to the Respondent, as its dealer. Under the circumstances, the fact that the Universal
Credit Corporation, the Respondent's immediate vendor, acquired legal title as an intervenor
between Nash-Kelvinator and the Respondent would seem to be without legal consequence-
Williams Motor Car Co v. N. L. R. B., 128 F. 2d 960, 963 (C. A 8).,
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are made within the State of Colorado, and specifically, within the county of
El Paso in that State.
The Respondent contends that the Act has no application to it, and that the
Board has no jurisdiction over it or the subject matter of this case, on the ground
that it is not engaged in interstate commerce, or in business activities which
affect such commerce within the meaning of those terms as statutorily defined.
I find no merit in this contention. In the light of the facts herein found, I con-
clude, in accordance with established Board decisional policy e that the Re-
spondent, as a franchised automobile dealer, is engaged in commerce and ac-
tivities which affect commerce, within the meaning of Section 2 (6) and (7)
of the Act.
IT. THE ORGANIZATION INVOLVED
Lodge No. 750, International Association of Machinists, hereinafter referred
to as the Union, is a labor organization within the meaning of Section 2 (5) of
the Act, which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and the Union's status as the representative
of a majority therein
Upon a petition for certification as the representative of certain employees
of the Respondent, filed by the Union on May 11, 1950, and a formal hearing
thereon, in the matter of Phelps Brothers Service, Case No. 30-RC-324, the
Board, on August 4, 1950, directed that an election be conducted to determine
the representative status of the Union, in a unit defined to consist of all me-
chanics,at the Respondent's retail automobile agency and garage at Colorado
Springs, Colorado, including body and fender men, greasers, washers, parts
men, painters, and the body shop handy man, but excluding office and clerical
employees, supervisors as defined in the Act, and all other employees, which
unit the Board found appropriate for the purposes of collective bargaining.
I find, on the basis of the Board's determination and contrary to the Respondent's
contention, that the unit, thus defined, is appropriate for the stated purpose.
Pursuant to the Board's order, an election was held on the employer's premises,
in Colorado Springs, Colorado, on August 28, 1950, at which time a majority of
the valid votes counted were cast in favor of union representation. The chal-,
lenged ballots were not sufficient in number to affect the results of the election.
On September 6, 1950, therefore, Regional Director Sperry, as the agent of the
Board, certified that the Union had been designated and selected by a majority
of the Respondent's employees, in the unit found appropriate by the Board for
the purpose of collective bargaining, as their representative for that purpose.
I find that on September 6, 1950, and at all times material thereafter, the Union
was the designated representative of a majority of the employees in the unit
herein found appropriate for the purposes of collective bargaining, and that,
pursuant to Section 9 (a) of the Act, as amended, it was entitled to act as the
exclusive representative of all of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
work, and other conditions of employment.
B. The refusal to bargain
On October 6, 1950, M. A. Lovay, the Grand Lodge representative of the
Union, met with Thomas M. Burgess, the Respondent's attorney, to begin nego-
8 N. L. R. B. V. M. L. Townsend, 185 F. 2d 378 (C. A. 9) ; Baxter Brothers, 91 NLRB
1480, 27 LRRM 1027 and the cases therein cited.
PHELPS BROTHERS SERVICE 841
tiations with the Respondent for a collective bargaining agreement. In re-
sponse to his request, on behalf of the Union, that the Respondent enter into
such negotiations, Burgess handed Lovay a memorandum in which the Re-
spondent declared its belief that the Board lacked jurisdiction over it and its
retail business ; that its timely motion to dismiss the representation case pre-
viously noted in this report should therefore have been granted; that the elec-
tion held thereafter pursuant to the Board's order was wholly invalid and
without effect ; and that the subsequent certification of the Union by the Board
as the bargaining agent of the Respondent's employees involved action beyond
the Board's jurisdiction and wholly void. The memorandum concluded with
a statement that, because of these beliefs, the Respondent would not recognize
the Union or its representatives as the bargaining agent of its employees for
any purpose whatsoever, and would refuse to enter into negotiations with that
organization. Continuously, since October 6, 1950, the Respondent has refused,
and now refuses, to bargain collectively with the Union as the exclusive
representative of any of its employees.
In the light of the admitted facts, as set forth above, I find that on October
6, 1950, and at all times thereafter, the Respondent refused, in violation of the
Act, to recognize and bargain with the Union, and that it interfered with,
restrained, and coerced its employees thereby in the exercise of rights statutorily
guaranteed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, which oc-
curred in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged and is now engaged in
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found, specifically, that the Respondent refused to bargain collec-
tively with the Union as the exclusive representative of its employees in a unit
appropriate for the purposes of collective bargaining. Accordingly, it will be
recommended that the Respondent, upon request, bargain with the Union as such
representative, and if an understanding is reached, embody such understanding
in a signed agreement.
Because the Respondent's refusal to bargain, as indicated in the record, was
based entirely upon its view that the Board was without jurisdiction to establish
the status of the Union as the representative of its employees in an appropriate
unit, and because the record, as stipulated, contains no evidence sufficient, in
my opinion, to warrant an inference that any danger with respect to the com-
mission of other unfair labor practices is to be anticipated from the Respondent's
conduct in the past, I will not recommend that the Respondent cease and desist
from the commission of any such other unfair labor practices However, in
order to effectuate the policies of the Act, I will recommend that the Respondent
cease and desist from the specific unfair labor practice found, as set forth above,
and that it cease and desist from any other acts which might tend to interfere,
in any manner, with the efforts of the Union to negotiate with it, as the exclu-
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive representative of the employees in the collective bargaining unit herein
found to be appropriate.'
CONCLUSIONS OF LAW
In the light of these findings of fact and upon the entire record in the case, I
make the following conclusions of law :
1. The Respondent, Phelps Brothers Service, is engaged in trade, traffic, and
commerce, and business activities which affect commerce, within the meaning
of Section 2 (6) and (7) of the Act. '
2. Lodge No. 750, International Association of Machinists, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3 All of the mechanics at the Respondent's -retail automobile agency and
garage at Colorado Springs, Coloiado, including body and fender men, greasers,
washers, parts men, painters, and the body shop handy man, but excluding
office and clerical employees, supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. The Union was on September 6, 1950, and at all times since has been, en-
titled to act as the exclusive representative of the employees in the aforesaid
unit, for the purposes of collective bargaining, within the meaning of Section
J (a) of the Act.
5. By its refusal, on October 6, 1950, and at all times thereafter, to bargain
collectively with the Union as the exclusive representative of its employees in
a unit appropriate for collective bargaining, the Respondent engaged and has
continued to engage in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
6. By its interference with the efforts of the Union to bargain collectively on
behalf of the employees in the aforesaid appropriate unit, the Respondent en-
gaged and has continued to engage 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 omitted from publication in this volume.]
4 May Dept . Stores v. N. L R B, 326 U. S 376 ; N. L R. B. v. Express Publishing
Company, 312 U. S. 426.
WEYERHAEUSER TIMBER COMPANY (KLAMATH FALLS BRANCH) and
HERBERT W. SHULTS, PETITIONER and INTERNATIONAL WOODWORKERS
OF AMERICA, LOCAL 6-12, CIO. Case No. 36-RD--30. March 16,1951
Decision and Direction of Election
Upon a petition for decertification duly filed, a hearing in this case
was held before Robert E. Tillman, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.'
1 The bearing officer referred to the Board for ruling thereupon the Union's motion to
dismiss the petition . For reasons hereinafter stated the motion is hereby denied.
93 NLRB No. 43.