The Birdsall-Stockdale Motor Co.

National Labor Relations Board - Board Decisions

May 17, 1951

94 N.L.R.B. 580 (N.L.R.B. 1951)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as defined in the Act, constitute an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.1o
[Text of Direction of Election omitted from publication in this
volume.]
MEMBERS REYNOLDS and STYLES took no part in the consideration
of the above Decision and Direction of Election.
10 Kays -Newport contends that the part-time shoe salesman should be excluded from
the unit This employee works each Saturday and occasionally on other days during
the week , performing duties similar to those of the other shoe salesmen . We find that
he serves as a regular part -time employee , and that lie is entitled to participate in the
election directed herein H . E. Butt Grocery Company, 93 NLRB No. 88 , Harms Hosiery
Co , Inc., 91 NLRB 330.
THE BIRDSALL-STOCKDALE MOTOR COMPANY and INTERN ATiON AL AS-
SOCIATION OF MACHINISTS , LODGE No. 750. Case No. 30-CA-113.
May 1 7, 1951
Decision and Order
On February 21, 1951, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
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 [Chairman Herzog and Members Murdock and Styles].
The Board has considered the stipulation entered into by the parties,
the Intermediate Report, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions : 1
1. The Trial Examiner found that the Respondent is engaged in
commerce within the meaning of the Act.' The Respondent has
excepted to this finding and contends that it is not so engaged. The
record shows, and the Respondent admits, that it has dealer
agreements with General Motors Corporation, Pontiac Motor
'We find, contrary to the contention of the Respondent , that the complaint alleged
facts which support a finding that the Respondent is engaged in commerce within the
meaning of the Act Accordingly, we hereby affirm the Trial Examiner' s dismissal of
the Respondent 's motion to dismiss the complaint which was based on this ground.
'The Trial Examiner , in the Intermediate Report, sets forth in detail the pertinent
commerce facts relating to the Respondent 's business
94 NLRB No 117.
THE BIRDSALL-STOCKDALE MOTOR COMPANY 581
Division, and Packard Motor Car Company. Respondent contends
that these agreements are not "franchises" but are merely "simple
contracts'" between the Respondent and the manufacturers. Respond-
ent further contends that under these agreements it does not acquire
title to any automobile, shipped in commerce by other parties, until the
vehicle reaches Colorado Springs, and that the Respondent is there-
fore not engaged in commerce within the meaning of the Act. How-
ever, the Board has recently held specifically that what is controlling
in a case of this type is the fact that, by virtue of its dealer agreements,
the respondent is one of a limited number of dealers functioning as an
essential, integral part of a Nation-wide system (in this case two
systems) for the manufacture and distribution of automobiles.3 Upon
the entire record, we find that the Respondent is engaged in commerce
within the meaning of the Act, and also that it will effectuate the
policies of the Act to assert jurisdiction over the Respondent.
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, The Birdsall-
Stockdale Motor Company, Colorado Springs, Colorado, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Lodge No. 750, as the exclusive representative of
all its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
(b) In any manner interfering with the efforts of International
Association of Machinists, Lodge No. 750, to negotiate for or represent
the employees in the aforesaid unit as their exclusive bargaining
a gent.
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, Lodge No. 750, as the exclusive representative
of the employees in the aforesaid unit and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post in conspicuous places at its plant in Colorado Springs,
Colorado, including all places where notices to employees are custom-
arily posted, copies of the notice attached to the Intermediate Report
8 Conover Motor Company, 93 NLRB 867; see also Harbor Chevrolet Company, 93
NLRB 1326; Baxter Bros, 91 NLRB 1480.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an Appendix.' Copies of said notice, to be furnished by the
Regional Director for the Seventeenth Region, shall, after being duly
signed by the Respondent's representative, be posted by it immediately
upon receipt thereof and maintained by it for at least sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify'the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
Mrs. Margaret L. Fassig, for the General Counsel.
Mr. Thomas M. Burgess, of Colorado Springs, Colo, for the Respondent.
Mr. Ernest M. Gibson, of Kansas City, Mo., for the Union.
STATEMENT OF THE CASE
This complaint is based upon a charge duly filed on June 7, 1950, by Inter-
national Association of Machinists, Lodge No. 750, Ind., herein called the Union,
against The Birdsall-Stockdale Motor Company, of Colorado Springs, Colorado,
herein called the Respondent. The complaint, issued on July 13, 1950, by the
General Counsel of the National Labor Relations Board; by the Regional
Director of the-Seventeenth Region (Kansas City, Missouri), alleges that the
Respondent has engaged in and is engaging 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
by the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the
Act. Copy of the charge was duly served on the Respondent. By stipulation
entered November 7, 1950, all parties waived formal. hearing, reserving the right,
upon issuance of an Intermediate Report, to argue orally before the Board, if
permitted to do so, to file briefs, and to litigate the issue of jurisdiction in the
United States Court of Appeals. In lieu of presentation of oral testimony and
documentary evidence before a Trial Examiner, the parties further stipulated
that the record should consist of the formal pleadings, certain documents in
the representation proceeding previously held before the Board,' a stipulated
statement of facts, and certified copies of dealer's contracts between the Re-
spondent and Pontiac Motor Division, General Motors Corporation, and Packard
Motor Car Company.
Specifically, the complaint alleges that, since on or about May 23, 1950, the
Respondent has refused, and continues to refuse, to bargain collectively with
the Union as the statutory representative of the employees in the appropriate
4 This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words, "The Recommendations of a Trial Examiner" and substi-
tuting in lieu thereof the words, "A Decision and Order " In the event that this
Order is enforced by a decree of a United States Court of Appeals, there shall be inserted
before the words, "A Decision and Order" the words, "A Decree of the United States Court
of Appeals Enforcing."
I The General Counsel and his representative in this proceeding are referred to herein
as the General Counsel ; the National Labor Relations Board is called the Board. -
P The Birdsall-Stockdale Motor Company, Case No. 30-RC-262.
THE BIRDSALL-STOCKDALE MOTOR COMPANY 583
unit, and has thereby engaged in, and is engaging in unfair labor practices
within the meaning, of Section 8 (a) (5), and 8 (a) (1) of the Act.
In its answer, filed on July 24, 1950, the Respondent substantially admits the
allegations of the complaint regarding the nature and extent of its operations,
and the certification of the Union by the Board, but denies the validity of said
proceedings, the appropriateness of the unit, and the jurisdiction of the Board.
Further answering, the Respondent admits that it refused to bargain with the
Union on or about the date alleged in the complaint, and that it has since
refused to bargain with said Union, though denying that it has engaged in any
unfair labor practices.
On July 24, 1950, the Respondent also filed a motion to dismiss the complaint
on the ground that it is not engaged in, and that its operations do not affect,
commerce within the meaning of the Act. For reasons appearing hereinafter,
the motion is hereby denied
Hearing having been waived, pursuant to stipulation of the parties, the
entire record in the matter was referred to Irving Rogosin, the undersigned
Trial Examiner, duly designated by the Associate Chief Trial Examiner, for
the issuance of an Intermediate Report.
Upon the basis of said stipulation, and upon the entire record thus made, the
undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The ,Birdsall-Stockdale Motor Company, a Colorado corporation, with its
place of business at Colorado Springs, Colorado, is, and at all times material
herein has been, engaged in the operation of a retail automobile agency engaged
in the sale, servicing, and storaging of new and used automobiles. The Respond-
ent is an authorized dealer in the sale, under separate franchises, of Packard
and Pontiac automobiles, and the sale and installation of replacement parts and
accessories for such automobiles.
During the year 1949, the Respondent purchased from the Denver Zone
office for the Pontiac Motor -Division of General Motors Corporation, automo-
biles valued at $144,988, which were assembled in and ultimately shipped to the
Respondent's place of business from the Fairfax District adjoining Kansas
City, Kansas, although shipped and invoiced to General Motors Acceptance
Corporation, Colorado Springs, Colorado. During the same period, the Respond-
ent purchased from the Packard Motor Car Company, Detroit. Michigan, auto-
mobiles valued at $134,634, which were similarly shipped and invoiced to said
General Motors Acceptance Corporation at Colorado Springs 8 New automo-
bile parts and accessories purchased by the Respondent from said plants during
this period amounted to $44,004, of which $21,465 in amount consisted of Pontiac
parts and accessories, purchased and shipped to the Respondent from Denver,
Colorado; and the balance of $22,539 consisted of purchases of Packard parts
and accessories ordered and shipped to the Respondent from points outside the
State of Colorado.
During the same period, the Respondent's total sales and receipts amounted
to $685,547, all of which were made in the State of Colorado, specifically in
Colorado Springs.
3 That title to the automobiles may not have passed to the Respondent until after
necessary arrangements with the finance company is immaterial to the issue of the
Board's jurisdiction . Williams Motor Company V . N. L. R. B., 128 F. 2d 960 , 963, 964
(C. A. 8), and cases cited.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the operation of the Respondent's business, it employs a total of about
40 employees, of whom about 12 are in the bargaining unit represented by the
Union.'
On the basis of the foregoing, and the entire record, the undersigned finds,
contrary to the Respondent's contention, and for reasons stated in the Baxter
Brgs case,' that, at all times material herein, the operations of the Respondent
have affected commerce within the meaning of the Act, and that the assertion
of jurisdiction by the Board will effectuate the policies of the Act.
If. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge No. 750, Ind., is a labor organ-
ization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A The refusal to bargain
1. The appropriate unit
The complaint alleges, in accordance with the Board's finding in its Decision
and Direction of Election, dated March 23, 1950, that the following employees
of the Respondent constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All mechanics, bodymen, painters, trimmers, apprentices and helpers
at the Respondent's Colorado Springs, Colorado, plant, excluding all office
and clerical employees, salesmen, guards, professional employees, and all
supervisors as defined in the Act.
In its answer , the Respondent admits that such a unit is appropriate within
the meaning of Section 9 (b) of the Act, but denies that "any unit whatsoever is
appropriate for the purposes'of collective bargaining under the Act in relation
to any employees in the retail business of this Respondent."
The Board has already decided this issue , as well as the issue of jurisdiction,
adversely to the Respondent.' No new evidence has been adduced by the Re-
spondent in support of its contention, and the Board's decision is, therefore, deter-
minative of this issue.' The undersigned finds that the unit above described is
appropriate for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act, and that said unit will assure to the Respondent's
employees the full benefit of their right to self-organization and collective bar-
gaining and will otherwise effectuate the policies of the Act.
2. Majority representation by the Union
At an election held under the auspices of the Regional Director on April 11, 1950,
pursuant to the Board's Decision and Direction of Election, dated March 23,
1950, a majority of the valid votes were cast in favor of -the Union. No objec-
tions to the conduct of the election were thereafter filed by the Respondent,
and, on April 19, 1950, the Board, by its Regional Director, issued its Certification
4 The findings in this section are based on the stipulation of the parties , the admissions
in the Respondent 's answer to the pertinent allegations of the complaint , and the record
and exhibits in the representation proceeding.
5 Avedtis Baxter and Ben Baxter, doing business as Baxter Bros. , 91 NLRB 1480;
see also, M . L. Townsend, 81 NLRB 839, enfd. 185 F . 2d 378 ( C. A. 9), rehearing denied,
November 22, 1950 , 27 LRRM 2155.
s See footnote 2, supra.
7 Conlon Brothers Manufacturing Company, 88 NLRB 107.
THE BIRDSALL-STOCKDALE MOTOR COMPANY 585
of Representatives, attesting that the Union had been designated and selected
by a majority of the employees of the Respondent, in the unit theretofore found by
the Board, and now found by the undersigned, to be appropriate.
The undersigned accordingly finds that the Union was, on April 19, 1950, and
has been at all times material since, the duly designated collective bargaining
representative of the employees of the Respondent in the unit found appropriate,
and, as such, the exclusive representative of said employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment,-
and other conditions of employment, as provided in Section 9 (a) of the Act.
3. The refusal to bargain
It was stipulated between the parties, and the undersigned finds, that on May
23, 1950, M. A. Lovay, Grand Lodge Representative of the Union, called on
Thomas M. Burgess, counsel for the Respondent, and requested that the Respond-
ent negotiate a collective bargaining agreement with the Union as the statutory
representative of the Respondent's employees. In response to this request,
Burgess handed Lovay a memorandum in which the Respondent renewed its
denial of the Board's jurisdiction over the Respondent, contested the validity of
the election conducted, and the certification of the Union by the Board and
refused to bargain with the Union. It was further stipulated, and the under-
signed finds, that the Respondent has, since May 23, 1950, refused, and continues
to refuse, to bargain with the Union as the representative of any of the Respond-
ent's employees.
No new considerations have been presented by the Respondent in this proceed-
ing in defense or justification of its refusal to bargain. The contentions raised
herein were urged before the Board in the representation proceeding involving
the same parties, and dealing with the same basic issues, and were overruled.
The Respondent's admitted refusal to bargain with the Union after certification
by the Board, upon grounds advanced before and overruled by the Board, consti-
tutes a refusal to bargain within the meaning of the Act .8
The undersigned therefore finds, on the basis of the stipulation of the parties,
and the entire record, including the representation proceedings, that, since May
23, 1950, the Respondent has refused to bargain collectively with the Union as
the exclusive representative of the employees of the Respondent in the appropriate
unit, with respect to rates of pay, wages, hours of employment, and other condi-
tions of employment, in violation of Section 8 (a) (5) of the Act, and that, by
such refusal has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, thereby violating
Section 8 (a) (1) thereof.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
8 See Conlon Brothers Manufacturing Company, supra.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOA11D
It has been found that the Respondent has refused to bargain collectively With
the Union as the exclusive representative of the employees of the Respondent
in the appropriate unit. It will, therefore, be recommended that the Respondent
bargain collectively with the Union, upon request, as the statutory representative
of the employees in the unit found to be appropriate, and, if an nuderstandiug
is reached, embody such understanding in a signed agreement.
Since the record does not reveal any evidence that the Respondent has engaged
in any other unfair labor practices, and since it appears that the Respondent's
refusal to bargain is based on its desire to litigate the issue of the Board's juris-
diction over the operations of the Respondent, rather than a fundamental atti-
tude of opposition to the objectives of the Act, it will be recommended merely
that the Respondent cease and desist from refusing to bargain with the Union as
the exclusive representative of the employees in the unit, and from in any man-
ner interfering with the efforts of the Union to bargain collectively oil their
behalf.
Upon the basis of the foregoing findings of tact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Lodge No. 750, Ind., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All mechanics, bodymen, painters, trimmers, apprentices, and helpers at
the Respondent's Colorado Springs, Colorado, plant, excluding all office and
clerical employees, salesmen, guards, professional employees, and all super-
visors as defined in the Act, constitute, and at all times material herein have
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, Lodge No. 750, Lid., was, on April
19, 1950, and has been at all times material since, the exclusive representative
of all the employees in the unit above described for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By refusing, on May 23, 1950, and thereafter, to bargain collectively with
International Association of Machinists, Lodge No. 750, Ind., as the exclusive
representative of all the employees in the unit above described, the Respondent
has engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By said refusal to bargain, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act, thereby 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 com-
merce within the meaning of Section 2 (6) and (7) of the :Act.
[Recommended Order omitted from publication in this volume.]
SUPERIOR COMPANY , INC. and TEx'rILE WORKERS UNION OF A MERICA,
CIO. Case No. 8-Cpl.-4,05. May 17, 1915-1
Decision and Order
On January 29, 1951, Trial Examiner Isadore Greenberg issued
his Intermediate Report in the above-entitled proceeding, finding that
94 NLRB No. 90.