Conover Motor Co.

National Labor Relations Board - Board Decisions

Mar 20, 1951

93 N.L.R.B. 867 (N.L.R.B. 1951)

CONOVER MOTOR COMPANY 867
engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
4. The Respondent has not violated the provisions of Section 8 (a) (3) and
(5) of the Act.
[Recommended Order omitted from publication in this volume.]
CONOVER MOTOR COMPANY and LODGE No. 750, INTERNATIONAL ASSO-
CIATION OF MACHINISTS. Case No. 30-CA-126. March O, 1951
Decision and Order
On January 23, 1951, Trial Examiner A. Bruce Hunt 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 Inter-
mediate 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-mem-
ber panel [Members Houston, 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. The Trial Examiner found that the Respondent is engaged in
commerce within the meaning of the Act.' The Respondent has ex-
cepted to this finding and contends that it is not so engaged. The
record shows, and the Respondent admits, that it has a dealer agree-
ment with Chrysler Corporation. Under the terms of this agreement,
the Respondent is made a "Direct Dealer" for Chrysler and Plymouth
automobiles in Colorado Springs, Colorado.2 It purchases these auto-
mobiles from the manufacturer in Detroit.
The Respondent has also excepted to the Trial Examiner's charac-
terization of this dealer agreement as a "franchise." We do not
consider the characterization of the dealer agreement controlling.
What is controlling is the fact that by virtue of its dealer agreement,
'The Trial Examiner, in the Intermediate Report, sets forth in detail the pertinent
commerce facts relating to the Respondent ' s business.
2 The agreement gives the Respondent exclusive rights with respect to the sale of Chrysler
automobiles and nonexclusive rights with respect to the sale of Plymouth automobiles
within a limited geographical area.
93 NLRB No. 145.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent is one of a limited number of dealers functioning as,
an essential , integral part of a Nation-wide system for the manufac-
ture 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 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, Conover Motor
Company, Colorado Springs, Colorado, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge No. 750, Inter-
national Association of Machinists, 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 Lodge No. 750,.
International Association of Machinists, to negotiate for or represent
the employees in the aforesaid unit as their exclusive bargaining agent-
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, Inter-
national Association of Machinists, 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 cus-
tomarily posted, copies of the notice attached to the Intermediate
Report as an Appendix.4 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)
consecutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
3 Baxter Bros , 91 NLRB 1480; see also Pabllc Motors Co, 90 NLRB No. 273
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 substituting
In lieu thereof the words , "A Decision and Order ." In the event that this Order is en-
forced 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."
CONOVER MOTOR COMPANY 869
(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, of Kansas City, Mo., for the General Counsel.
Mr. Thomas M. Burgess and Mr. Kenneth W. Geddes, of Colorado Springs,
Colo., for the Respondent.
Mr. Ernest M. Crebson, of Kansas City, Mo., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Lodge No. 750, International Association of
Machinists , Ind., Kansas City, Missouri , herein called the Union , the General
Counsel of the National Labor Relations Board,' by the Regional Director for the
Seventeenth Region ( Kansas City, Missouri ), issued a complaint dated October
16, 1950, against Conover Motor Company, Colorado Springs , Colorado , herein
called the Respondent , alleging that the Respondent had engaged in and was
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, as amended , 61 Stat. 136, herein called the Act. A copy of the
charge was duly served upon the Respondent . The record does not establish
the date of service of the complaint , but it is apparent from the Respondent's
.answer and the stipulation of the parties, set out below , that service was effected.
With respect to the unfair labor practices , the complaint alleged in substance
that on October 6, 1950, the Respondent refused, and has since continued to
refuse, to bargain collectively with the Union as the exclusive representative of
its employees in an appropriate unit, although a majority of said employees had
designated the Union as their representative for such purposes On October 30,
1950, the Respondent filed its answer, admitting certain allegations of the com-
plaint concerning its corporate structure and business activities , that the Union
bad been certified by the Board as the exclusive representative of the Re-
spondent 's employees in an appropriate unit, and that it had refused to bargain
collectively with the Union, but denying that the Board has jurisdiction in this
proceeding . On the same day, the Respondent filed a notion to dismiss on juris-
4ictional grounds.
By agreement of the parties , no hearing was held in this proceeding . During
November 1950 , the parties executed a stipulation, waiving notice and hearing,
providing that the record herein shall consist of , inter alga , the charge , the plead-
ings, and the record in the representation case in which the Union achieved
certification by the Board . By the stipulation , the issues were submitted to a
'Trial Examiner , but the parties reserved the right to litigate before the Board
-and appropriate courts the question of the application of the Act to the Re-
spondent . Thereafter, the undersigned Trial Examiner was duly designated by
the Chief Trial Examiner to prepare and issue an Intermediate Report pursuant
to the stipulation of the parties . For the reasons set forth below, the Re-
spondent's motion to dismiss is hereby denied.
Upon the entire record in the case, I make the following :
1 The General Counsel and the attorney representing him are referred to as the General
Counsel. The National Labor Relations Board is referred to as the Board.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Colorado corporation, has its office and place of business.
at Colorado Springs, Colorado, where it is engaged as a franchised dealer for-
the sale of Chrysler and Plymouth automobiles, and sells, services, and repairs
automobiles. During the year 1949, the Respondent purchased Chrysler and
Plymouth automobiles at a value of approximately $249,800, all of which were
shipped to the Respondent from points outside the State of Colorado. During
the same year, the Respondent purchased Chrysler and Plymouth automobile
parts directly from outside the State of Colorado at a cost of $6,731, and also,
purchased parts within the State, but which had been manufactured outside-
thereof, at a cost of $40,225. The Respondent's sales during the year 1949, all
of which were made within the State, amounted to $615,369.
On August 8, 1950, in a Decision and Direction of Election in Conover Motor
Company, Case No. 30-RC-317, the Board asserted jurisdiction over the opera-
tions of the Respondent. Subsequently, in a number of cases decided after the
parties entered into their stipulation above mentioned, the Board asserted juris-
diction over franchised automobile dealers, such as the Respondent here. The
Board's policy is clear, as shown in the cases cited in the footnote? Accord-
ingly, I find that the Respondent is engaged in commerce within the meaning
of the Act.
Jr. THE ORGANIZATION INVOLVED
Lodge No. 750, International Association of Machinists, is a labor organization
admitting to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A. The appropriate unit and the Union's majority status
In Case No. 30-RC-317, supra, the Board determined, and I find, that all me-
chanics, body and fender men, trimmers, painters, parts men, greasers, washers,
and apprentices at the Respondent's plant, excluding all office and clerical
employees, salesmen, guards, professional employees, and all supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act. On September 6, 1950,
in the same proceeding, the Board certified the Union as the exclusive repre-
sentative of the employees in said unit for such purposes. Accordingly, I find
that on September 6, 1950, and at all times thereafter, the Union was the duly
designated representative of a majority of the employees in the appropriate unit
and, pursuant to Section 9 (a) of the Act, has been and is now the exclusive
representative of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
B The refusal to bargain
There is no dispute, and I find, that on October 6, 1950, M. A. Lovay, a
representative of the Union, met with Attorney Burgess, representing the Re-
spondent, and requested that bargaining negotiations be entered into, and that
2 The case principally cited by the Board appears to be Baxter Bros., 91 NLRB 1480:•
See also Herrall-Owens Co., 92 NLRB 160; Walker Motor Company, Inc, 92 NLRB
540; Anders Motor Company , Inc., 92 NLRB No. 124; Des Rochers Motor Company, 92
NLRB 709; Tuscaloosa Lincoln -Mercury Company, 92 NLRB No. 132.
CONOVER MOTOR COMPANY 871
Burgess refused the request with the statement, in substance, that the Re-
spondent was not subject to the jurisdiction of the Board. Accordingly, I find
that on October 6, 1950, and thereafter, the Respondent refused to bargain
collectively with the Union as the exclusive representative of its employees in
an appropriate unit, and that the Respondent has thereby interfered with, re-
strained, and coerced, and is interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE 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 burden-
ing 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, I will recommend that if cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. I have
found that the Union represented a majority of the employees in an appropriate
unit and that the Respondent refused to bargain collectively with it. Accord-
ingly, I will recommend that the Respondent, upon request, bargain collectively
with the Union as the exclusive representative of the employees in the appro-
priate unit.
Upon the basis of -the above findings of fact and the entire record in the case,
I make the following :
CONCLUSIONS OF LAW
P
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All mechanics, body and fender men, trimmers, painters, parts men, greasers,
washers, and apprentices at the Respondent's plant, excluding all office and cleri-
cal employees, salesmen, guards, professional employees, and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The Union, on September 6, 1950, was, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, 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 interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]