The Strang Garage Co.

National Labor Relations Board - Board Decisions

Mar 26, 1951

93 N.L.R.B. 900 (N.L.R.B. 1951)

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman scenic artists, head paint foreman, foreman painters, fore-
man advertising artists, and all other employees and supervisors,,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act 3
5. The Petitioner requests that persons "earning their living" at.
Jerry Fairbanks, Inc., be permitted to vote in the election. The Em-
ployer takes no position. The Intervenor urges that the Board fol-
low its usual practice and direct that persons employed during the
payroll period ending immediately next preceding the date of such
direction of election, be permitted to vote. The Employer's pay-
roll records disclose that out of approximately eight employees in the
categories here involved who were employed during the past year,
only one employee worked over 40 weeks and the remainder of the
employees worked from 1 day to 64 days. A majority of these em-
ployees, however, have worked for the Employer at some time dur-
ing the last 4 months. In view of the relatively brief periods of em-
ployment afforded the employees involved herein, and their frequent
interchange among other employers in the area, we shall depart from
our usual eligibility rule. We shall direct that a 120-day eligibility
period immediately preceding the date of the Direction of Election
be used to determine which of the employees in the appropriate unit
are eligible to vote in the election. Thus, employees who would other-
wise be eligible to vote will not be disfranchised if, immediately prior
to the election, they happen to be employed by another employer in
the area 4
[Text of Direction of Election omitted from publication in this
volume.]
8 The parties are in dispute with respect to the supervisory status of Joseph Kaplan. We
find that Joseph Kaplan is not a supervisor within the meaning of Section 2 (11) of the
Act. The record discloses that his duties with respect to employing additional help con-
sist primarily of calling additional employees to the plant for work as the occasion demands,
and are routine in nature . We shall, therefore , include him in the unit.
4 Norcal Packing Company, 76 NLRB 254 ; The Independent Motion Picture Producers
Association, 88 NLRB 1285.
THE STRANG GARAGE COMPANY and LODGE No. 750, INTERNATIONAL.
AssocIATION OF MACHINISTS . Case No. 30-CA-127. Mar'ch"26, 1951
Decision and Order
On January 15, 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
93 NLRB No. 158.
THE STRANG GARAGE COMPANY 901
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.
The Board 1 has considered the Intermediate Report, the Respond-
ent's exceptions thereto, and the entire record in this case, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Strang Garage Com-
pany, 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 mechanics at the Respondent's retail automobile agency and garage
in Colorado Springs, Colorado, including, body and fender men,
greasers, washers, and parts men, but excluding office and clerical
employees, supervisors as defined in the Act, and all other employees;
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
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 above-described bargaining unit, with respect
to rates of pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody such under-
standing in a signed agreement;
(b) Post at its place of business at Colorado Springs, Colorado,
copies of the notice attached hereto and marked Appendix A 3 Copies
of said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by the Respondent, be
' 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].
z The Respondent excepted to the characterization of its direct dealer agreements with
General Motors Corporation as a "franchise." We do not consider the characterization
of the dealer agreements controlling. What is controlling is the fact that by virtue of its
direct dealer agreements, the Respondent is one of a limited number of dealers functioning
as an essential, integral part of a Nation-wide system for the manufacture and distribution
of motor vehicles.
9 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." -
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted by the Respondent immediately upon receipt thereof and be
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent 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 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, as amended, we hereby notify our employees that :
WE, WILL bargain collectively, upon request, with LODGE No. 750,
INTERNATIONAL ASSOCIATION OF MACHINISTS as the exclusive rep-
resentative of all the employees in the bargaining unit described
below with respect to rates of pay, Wages, hours of employment,
or other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining unit is:
All mechanics at our retail automobile agency and garage in
Colorado Springs, Colorado, including body and fender men,
greasers, washers, and parts men, but excluding office and
clerical employees, 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 with us, or refuse to bargain col-
lectively with said union as the exclusive representative of the
employees in the bargaining unit set forth above.
THE STRANG GARAGE COMPANY,
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
Mrs. Margaret L. Fassig, for the General Counsel.
Mr. Thomas M. Burgess, of Colorado Springs, C-olo., for the Respondent.
Mr. Ernest M. Gibson, of Kansas City, Mo., for the Union.
THE STRANG GARAGE COMPANY
STATEMENT OF TIIE CASE
903
This complaint is based upon a charge duly filed on October 3, 1960, by Lodge
No. 750, International Association of Machinists, herein called the Union, against
The Strang Garage Company, of Colorado Springs, Coloiado, herein called the
Respondent. The complaint, issued on October 16, 1950, by the General Counsel
of the National Labor Relations Board,' by the Regional Director of the Seven-
teenth Region (Kansas City, Missouri), alleges that the Respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the mean-
ing 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 previ-
ously held before the Board,' a stipulated statement of facts, and certified copies
of dealer's contracts between the Respondent and General Motors Corporation.
Specifically, the complaint alleges that, since on or about October 6, 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
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 October 30, 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 October 30, 1950, the Respondent also filed a motion to dismiss the com-
plaint 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 here-
inafter, 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
1. THE BUSINESS OF THE RESPONDENT
The Strang Garage 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 and general garage and
automobile repair business, selling, distributing, and servicing Buick auto-
'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.
2 The Strang Garage Company , Case No 30-RC-328.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mobiles, and GMC trucks, under franchise from the General Motors Corporation.
During the year 1949, the Respondent purchased from the Denver Branch
Office of the Buick Motor Division of General Motors Corporation, new Buick
automobiles, valued at $3554,664 30, shipped directly to the Respondent's place of
business from Kansas City, Missouri , and Flint , Michigan , although billed to
'General Motors Acceptance Corporation. During the same period, the Respond-
ent purchased from the General Motors Corporation branch office.in Denver,
Colorado, GMC trucks, valued at $44,111.80, which were delivered to the Re-
spondent by transport from the General Motors Corporation factory at Pontiac,
Michigan, or from the assembly plant at St. Louis, Missouri, but which were
billed to Yellow Motor Acceptance Corporation, which handles the financing of
trucks for General Motors Corporation. The Respondent accepts title to said
trucks at Colorado Springs, Colorado.
During the same period, the Respondent sold, wholly within the State, au-
tomobiles, trucks, accessories, and parts valued in the aggregate at $1,063,893.13,
of which $509,135 11 in value represented sales of new automobiles, and $57,263 61
in value, sales of new trucks. Total sales of automobile parts and accessories for
the corresponding period amounted to $94,283.03 in value, a portion of which was
purchased from the Denver Zone warehouse. During the same period, accessories
attached to new automobiles purchased by the Respondent amounted to approxi-
mately $41,500; Buick parts purchased by the Respondent from points outside
the State of Colorado, to approximately $19,800. During this period, the total
value of shipments to the Respondent, from points outside the State, including
new Buick automobiles , new GMC trucks and accessories attached to said ve-
hicles, amounted to in excess of $460,000.
The Respondent also conducts a business at 208 Tejon Street, Colorado Springs,
Colorado, where it is engaged in the sale of Frigidaire refrigerators and other
home appliances. During the year 1949, the Respondent sold home appliances
valued at approximately $220,000, of which 65 percent represented the cost to the
Respondent. The Frigidaires, manufactured at Dayton, Ohio, were purchased by
the Respondent from the Frigidaire Branch Office and Warehouse of the Frigi-
daire Division of General Motors!
On the basis of the foregoing, and the entire record, the undersigned finds, con-
trary to the Respondent 's contention , and for reasons stated in the Baxter Bros.
case,4 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.
II. 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 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 August 16, 1950, that the following employees of
8 These findings are based on the admissions in the Respondent 's answer to the pertinent
allegations of the complaint , and the transcript of the proceedings in the representation
case.
4 Avedss Baxter and Ben Baxter , doing business as Baxter Bros, 91 NLRB 1480;
see also , M L Townsend , 81 NLRB 739 , 185 F. 2d 378 ( C. A. 9), rehearing denied, Novem-
ber 22, 1950 , 27 LRRM 2155.
THE STRANG GARAGE COMPANY 905
the Respondent constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act:
All mechanics at the Respondent's retail automobile agency and garage in
Colorado Springs, Colorado, including body and fender men, greasers,
washers, and parts men, but excluding office and clerical employees, super-
visors as defined in the Act, and all other employees.
In its answer, the Respondent admits that the Board has found such a unit
appropriate for the purposes of collective bargaining, but denies that such
unit "or any unit whatsoever is appropriate for the purposes of collective bar-
gaining 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
Respondent in support of its contention, and the Board's decision is, there-
fore, determinative 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 bargaining 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 August
28, 1950, pursuant to the Board's Decision and Direction of Election, dated
August 16, 1950, a substantial majority of the valid votes were cast in favor
of the Union. No objections to the conduct of the election were thereafter filed
by the Respondent, and, on September 6, 1950, the Board, by its Regional Di-
rector, issued its certificate 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 September 6,
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
October 6, 1950, M. A. Lovay, Grand Lodge Representative of the Union, called
on Thomas M. Burgess, counsel for the Respondent, and requested that the
Respondent 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 re-
newed 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
undersigned finds, that the Respondent has, since October 6, 1950 refused, and
continues to refuse, to bargain with the Union as the representative of any of
the Respondent's employees.
See footnote 1, supra.
" Conlon Brothers Manufacturing Company, 88 NLRB 107.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 certifica-
tion by the Board, upon grounds advanced before and overruled by the Board,
constitutes a refusal to bargain within the meaning of the Act. 7
The undersigned, therefore, finds, on the basis of the stipulation of the par-
ties, and the entire record, including the representation proceedings, that, since
October 6, 1950, the Respondent has refused to bargain collectively with the
Union as the exclusive repiesentative of the employees of the Respondent-in
the appiopriate unit, with respect to rates of pay, wages, hours of employment,
and other conditions 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. 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, 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 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 representa-
tive of the employees in the unit found to be appropriate, and, if an under-
standing is reached, embody such understanding in a signed agreement.
Since the record does not reveal any evidence that the Respondent has en-
gaged in any other unfair labor practices, and since it appears that the Re-
spondent's refusal to bargain is based on its desire to litigate the issue of the
Board's jurisdiction over the operations of the Respondent, rather than a funda-
mental attitude of opposition to the objectives of the Act, it will be recom-
mended 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 manner interfering with the efforts of the Union to bargain
collectively on their behalf
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS or LAw
1. Lodge No. 750, International Association of Machinists, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2 All mechanics at the Respondent's retail automobile agency and garage
in Colorado Springs, Colorado, including body and fender men, greasers, washers,
and parts men, but excluding office and clerical employees, supervisors as de-
See Conlon Brothers Manufacturing Company, supra.
INTERNATIONAL SHOE COMPANY 907
lined in the Act, and all other employees, constitute, and at all times material
herein have constituted, a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act
3. Lodge No. 750, International Association of Machinists, was, on September
'6, 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 October 6, 1950, and thereafter, to bargain collectively with
Lodge No. 750, International Association of Machinists, as the exclusive repre-
sentative 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 right 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
commerce within the meaning of Section 2 (6) and (7) -of the Act.
fRecommended Order omitted from publication in this volume.]
INTERNATIONAL SHOE COMPANY and LOCAL 198, UNITED RUBBER, CORK,
LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO . Case No.
14-CA-,326. March- ^06. 1951
Decision and Order
On July 10, 1950, Trial Examiner James J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (a) (1), (3), or (5) of the
Act, as alleged in the complaint, and recommending that the com-
plaint be dismissed in its entirety. Thereafter, the General Counsel
and the Union filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent filed a brief in support of the Inter-
mediate Report. The Union also requested oral argument. This re-
quest is denied as the record and brief in our opinion, adequately pre-
sent the issues and positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner set forth in the copy of his Intermediate Report,
attached hereto, with the following additions and modifications :
The Respondent manufactures rubber heels and soles at the plant
involved in this case. The operations of this plant are divided into
93 NLRB No. 159.