West Side Plymouth, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1968

170 N.L.R.B. 686 (N.L.R.B. 1968)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
West Side Plymouth , Inc. and Professional Automo-
bile Salesmen Association . Cases 8-CA-4561-1,
-2 and 8-CA-4658
March 22, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 8, 1967, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations. Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and sup-
porting briefs, and the entire record in the case,
and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
solidated cases were heard before me on September
26 and 27, 1967, at Akron, Ohio. The complaints
were issued on May 23 and July 10, 1967,, upon
charges filed on April 11 and June 22, 1967,
respectively, by Professional Automobile Salesmen
Association, herein called the Union, alleging that
the Respondent, West Side Plymouth, Inc., had vio-
lated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. Respondent filed
answers to the complaint, denying that it had en-
gaged in the unfair labor practices alleged. Sub-
sequent to the hearing, the General Counsel and
Respondent filed briefs, which have been carefully
considered.
Upon the entire record in these cases and from
my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation, having .its
principal office and place of business in Akron,
Ohio, where it is engaged in the operation of an au-
tomobile dealership. In the course and conduct of
its business at Akron, Respondent annually derives
in excess of $500,000 in gross receipts from the
retail sales of automobiles and receives directly
from points outside Ohio finished products valued
in excess of $50,000.
Respondent admitted at the hearing, and I find,
that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, West Side Plymouth,
Inc., Akron, Ohio, its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.2
' We are satisfied on the basis of the entire record that Respondent's
contention that the Trial Examiner was prejudiced is without merit
The Respondent excepts to the Trial Examiner 's credibility findings It is
the Board 's established policy , however, not to overrule a Trial Examiner's
resolution with respect to credibility unless, as is not the case here , the pre-
ponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188
F2d362(C.A 3)
2 The address for Region 8, appearing at the bottom of the notice at-
tached to the Trial Examiner 's Decision , is amended to read Federal Of-
fice Building, Room 1695, 1240 East Ninth Street, Cleveland, Ohio 44199,
Telephone 522-3738
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: These con-
170 NLRB No. 98
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted at the hearing, and I find,
that Professional Automobile Salesmen Association
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues Posed
It is alleged that after all of Respondent's
salesmen , who comprised the appropriate bargain-
ing unit, had joined the Union and the Union had
asked Respondent to recognize it as their bargain-
ing representative, Respondent embarked on a
course of-unfair labor practices, including the im-
position of stricter and more arduous working con-
ditions upon its salesmen, interrogation regarding
their union memberships and sympathies, and
threats of reprisal, which were designed to destroy
the Union's majority status. It is also alleged that
these unfair labor practices were a contributing
cause of a strike of Respondent's employees and
the employees of other automobile dealers in the
Akron, Ohio, area, and that following the termina-
tion of the strike Respondent, for a period of about
WEST SIDE PLYMOUTH, INC.
2 weeks after their applications for reinstatement,
discriminatorily denied reinstatement to the only
two of its employees who remained on strike
throughout its duration. It is further alleged that
Respondent has unlawfully refused to bargain with
the Union. Respondent denies that it engaged in
violations of Section 8(a)(1) and (3) of the Act
prior to the strike but contends that, even if
evidence regarding that be credited, the strike was
not caused by these unfair labor practices but
rather by desire of the Union to obtain recognition
from and bargain with all the Akron dealers as a
single unit; and that it was not an unfair labor prac-
tice strike and that Respondent was not therefore
required to reinstate its two striking salesmen upon
their applications. Respondent defends its refusal to
bargain with the Union chiefly on the ground that it
had reason to doubt the Union's representative
status.
B. Sequence of Events
1. The Union obtains authorization cards from all
of Respondent's salesmen and requests Respondent
to recognize it as their bargaining representative
On February 8 and 9, 1967, all six of Respon-
dent 's salesmen signed union cards authorizing the
Union to represent them for purposes of collective
bargaining . On February- 12 the Union, by tele-
gram , advised Respondent that it had been selected
by a majority of . Respondent's salesmen "to
represent them in all matters as they relate to their
employment" and requested Respondent to recog-
nize it as their sole bargaining representative. On
the following day the Union filed a representation
petition with the Board's Regional Office. Respon-
dent received both the Union's telegraphic request
for recognition and a copy of the representation
petition on February 13.' Respondent never replied
to the Union's telegraphic request for recognition.
Nor did it, insofar as the record shows, reply to a
later telegraphic request for recognition and for ar-
bitration of grievances sent by the Union on March
18, the second day of the strike, and received by
Respondent on March 20.
687
Koger replied that he had, Walker stated that the
Union had tried before and had fallen " on its face"
and predicted that the salesmen "stand very little
chance of getting it through." About a week later
Walker also asked employee John Sica whether he
had signed a union card.
Thereafter, in late February, while in a bar at the
Magic Inn near the plant, Walker was invited to
join salesmen Stiffey and Koger for a drink. The
subject of the Union and what it could do for the
men came up for discussion. Although Walker
spoke disparagingly of the Union, Stiffey insisted
that he was going to stay with it. Thereupon, ac-
cording to Stiffey's credited testimony, Walker
replied, "Well, you are done in the car business."
Koger, although testifying that he could not re-
member the exact words used by Walker, attributed
to him a statement that Siffey was "through in the
car business" and that he would see that Stiffey was
"blackballed." Although Walker may not have used
the term "blackballed," I consider that term a cor-
rect interpretation of what Walker said.'
Also in late February, according to the mutually
corroborative testimony of salesmen Stiffey, Koger,
and Forest, upon an occasion when most of the
salesmen were on the showroom floor discussing
the Union, they heard Respondent' s president,
Spikerman, say in an angry and vehement tone that
he would close his doors before he would permit his
store to be unionized or before he would let a union
dictate to him. Spikerman then went into his office
and slammed the door. His statement , according to
Stiffey, did not appear to be directed to any par-
ticular salesman . Spikerman's testimony in regard
to this incident is as follows:
Q. (By Respondent's Counsel) Mr. Spiker-
man, did you ever announce in the showroom
of West Side Plymouth that you would close
the doors of the agency before allowing a
union among your employees?
A. Repeat that.
Q. Did you ever announce to the sales force
at West Side Plymouth in the showroom, that
you would-
A. To a group of salesmen or a salesman,
no.
2. Alleged coercive interrogation and threats prior
to the strike
In February, shortly after the salesmen had
joined the Union, New Car Sales Manager Walker
called one of the salesmen , Koger, into his office,
closed the door, and, after stating that he un-
derstood the salesmen were trying to get the Union
started again , asked Koger if he had joined it. When
Q. [By Trial Examiner] Was there any con-
versation, anything like that, that you can re-
call?
THE WITNESS: Nothing that I talked to any
of the salesmen about directly. I have had-
nothing that I talked to them directly about or
made any statement to them or individually or
' Respondent thereafter entered into an agreement for a consent elec-
tion, but the election was never held , apparently due to unfair labor prac-
tice charges which the Union had filed
2 The findings in the two preceding paragraphs are based upon the
credited testimony of Stiffey, Sica, and Koger Walker testified that he
could not recall making the statements attributed to him at the Magic Inn
and denied asking any salesman if he had signed a union card. His
testimony impressed me as less frank and credible than that of Stiffey, Sica,
and Koger
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a group on that question. My personal feelings
is something else, but I made no statements to
any of the sales personnel.
Spikerman was not a completely frank witness. He
had a tendency throughout much of his testimony
to be vague and to avoid answering questions
directly.
I am convinced and find from all the testimony
that, although Spikerman was not talking "directly"
to any particular salesman or group of salesmen, he
did threaten in the presence and hearing of the
salesmen on the floor at the time that he would
close his doors before he would permit his store to
be unionized and that he intended that the
salesmen should hear him.
I find that Spikerman's threat to close his doors
before permitting his store to be unionized, Wal-
ker's threat to Stiffey, when the latter announced
his intention to stay with the Union, that Stiffey was
through in the car business, and Walker's interroga-
tion of salesmen Koger and John Sica regarding
their union membership in the hostile atmosphere
displayed by management constituted interference,
restraint, and coercion of the employees in the ex-
ercise of their organizational rights guaranteed in
Section 7 of the Act.
3. Alleged imposition of stricter and more arduous
working conditions in reprisal for the salesmen's
selection of the Union
The General Counsel contends that following the
selection by Respondent's salesmen of the Union to
represent them, Respondent engaged in acts of har-
rassment and reprisal against them by: (a) substan-
tially increasing their duties in the areas of mailing
out advertising circulars and of placing handbills on
parked cars in severe weather; and (b) more strictly
enforcing its 1-hour lunch rule and its rule against
tardiness. These contentions will now be con-
sidered.
a. The increased mailing and handbilling
requirements
In order to stimulate the sales of cars it has been
Respondent's practice to encourage its salesmen
from time to time to mail out advertising circulars,
signed by the salesmen sending them, to prospec-
tive customers and also have its salesmen place ad-
vertising handbills, signed by them, on parked au-
tomobiles. The latter practice was referred to as
"hooping" or "would-you-taking." The mailing of
these circulars and "hooping" was, by and large,
done on a voluntary basis but when business was in
a slump, management requested the salesmen to
' Kinser testified variously that the circular mailing requirements for
February were no different from any other month, that for a few days in
February 50 a day were required, that 25 a day were required in November
and December 1966 and in January 1967, though later admitting that he
was not even working for Respondent in November and December , that 25
a day were required in January, February, and March, 1967, that he could
stimulate business by increasing the amount of time
spent on these practices.
Prior to the time the union cards were signed, ac-
cording to John Sica, he had mailed out 10 or 15
circulars about once a month; Twigg, on the other
hand, estimated that he had voluntarily mailed out
10 or 15 once or twice a week; Koger testified that
he had mailed them only on a haphazard basis,
when requested to do so, about 5 or 10 circulars a
day for about 1 week out of 2 or 3 months; and
Forest testified that he rarely sent them out, and
when he did, only about 10 at a time.'
It is clear from the testimony of the salesmen and
Spikerman that about the time the men signed
union cards or within a week or two thereafter,
Respondent started requiring them to send out 25
such advertising circulars each day and that about
March 13 this requirement was stepped up to 50 a
day. The contents of the circulars were prepared by
management. The men were required only to sign
each circular , place it in an envelope , seal the en-
velope, address it, place a stamp on it, and turn it in
for mailing each morning at the regularly scheduled
sales meetings. Although the mailing of these circu-
lars tended to increase the volume of business for
the salesmen, who were paid on a salary-plus-com-
mission basis, they appeared to resent being
required to perform these clerical duties.
Similarly, within a short time after the men
signed union cards, Respondent required them to
increase the amount of "hooping" they had been
doing and to go out in cold and windy weather to
do so. According to John Sica, the men were
required to place handbills on parked cars about
three times as often as before and to do it even in
bad weather, whereas he had never before been
required to do this during the winter months or in
bad weather. Twigg testified that he had thereto-
fore "hooped" about once or twice a month on a
voluntary basis but shortly after union cards were
signed, he was required to do it more frequently
and even in bitterly cold and windy weather. On
one occasion he was required to place on cars 100
circulars having someone else's name on them. Ac-
cording to Koger, he had normally never "hooped"
except during the summer months but shortly after
signing a union card he was required to do it two of
three times a week and in bad weather, even when
he had a cold and asked to be excused. According
to Forest, he could not remember "hooping" even
once between October 1966 and February 1967,
but after signing his union card, he was sent out
everyday for a while and in bad weather. I am con-
vinced that Koger and Forest exaggerated the
frequency with which the men were required to
"hoop" in February and March and accept the
not remember whether in January employees were required to send out cir-
culars I or 3 days a week or how often, and that the requirements were
stepped up a little bit in February I do not place any reliance on any of his
testimony about the circular mailing requirements which is inconsistent
with that of the other salesmen , whom 1 credit in this respect , or with that
of President Spikerman
WEST SIDE PLYMOUTH, INC.
testimony of Sica and Twigg as more accurate in
that respect. However, the gravaman of the com-
plaint of all these men was that Respondent was
harrassing them by sending them out not only more
frequently but in severe weather, contrary to its
previous practice, and this complaint has ample
support in the record.
President Spikerman conceded that about
February 8 or 9, Respondent stepped up its at-
tempts to bring in more business by requiring each
salesman at first to send out 25 advertising circulars
a day and later 50 a day. He did not deny that
Respondent also increased the amount of
"hooping" required of the men in February and
March and that such activity was required in severe
weather. He testified that it was Respondent's pol-
icy to increase the mailing and "hooping" require-
ments when Respondent "thought the sales force
was lax, they weren't working, they were sort of
loafing on the job" or during business slumps and
that he followed the same basic policy after as be-
fore February 8. He further testified that during the
winter months or during January, February, and
March there was usually an increase in mailing and
"hooping." He produced no records to substantiate
the latter testimony. A preponderance of the credi-
ble testimony moreover, requires a finding that
business was not slow in February 1967.' Spiker-
man's attempted explanation of Respondent's
reasons for going "on a strong program," as he
described it, after February 8, was so general and
vague as to make it difficult to understand precisely
what his asserted motives were. I do not regard his
testimony in this respect as reliable. I am con-
vinced, under all the circumstances, that in putting
pressure on its salesmen, with respect to both mail-
ing and "hooping," after they had joined the Union,
Respondent was motivated primarily by a desire to
retaliate against them for having selected the Union
as their bargaining representative and to discourage
their union membership.
b. Stricter enforcement of attendance and lunch
hour rules
Respondent has always expected its employees to
be at work by 9 a.m. and to take not more than 1
hour for lunch. It has, however, permitted a con-
siderable amount of looseness in the enforcement
of these attendance rules, tightening up at times
when it was felt that the men were abusing the
privileges given them. At one time prior to
November 1964, when Respondent's predecessor,
Con-Mart, was operating the business, Spikerman,
who was then sales manager, fired Respondent's
New Car Sales Manager Walker who was then a
salesman for Con-Mart, "for extreme tardiness and
4 Sales Manager Walker testified that in February 1967 "walk-in traffic,"
on which most the sales were based, was "down considerably " He was
unable, however, to compare February with any other month and produced
no records to support his general assertion in regard to February Salesman
689
not showing up for work" and sent Respondent's
Used Car Manager Don Sica, who was then a
salesman, home twice for being late. Subsequently,
attempts had been made to encourage promptness
by having men contribute funds to a "kitty" for
being late, then using the proceeds to have a party.
It is undisputed that, beginning about February
11, 1967, Respondent "cracked down" on the en-
forcement of its attendance rules. On that day
Koger was sent home for being late, though in the
2-year period preceding that time he had been late
about 100 times without anything being done about
it. Koger was again sent home on a subsequent oc-
casion when he was 12 minutes late after being held
up by a train. In late February John Sica was sent
home for the day when he arrived 5 minutes late.-
On February 11 and again on February 13 Forest
was docked an 'hour's pay for being 15 and 10
minutes late, respectively, on those days.
There is also an abundance of evidence that
shortly after the men joined the Union, Respondent
began a more strict enforcement of its 1-hour lunch
rule. After that time the salesmen were usually
docked in their pay when they took more than an
hour for lunch.
Respondent explains its stricter enforcement of
attendance rules in part upon the fact that the
Federal Wage Hour Amendments went into effect
on February 1, 1967, requiring Respondent to pay
a minimum of $1 an hour to its salesmen and neces-
sitating the keeping of accurate records as a basis
for paying the men. Theretofore some of the
salesmen had been paid a guaranteed salary of $50
a week plus commission but at least one, Kinser,
was paid on a commission and bonus basis.
Insofar as Respondent's enforcement of its at-
tendance rules resulted merely in docking the men
for the- time when they were away from the store
and not working, it is understandable, for.Respon-
dent was required to keep a record of the hours
worked under the Wage Hour Amendment and to
pay them $1 an hour for their time spent in work-
ing. This might well account for stricter enforce-
ment of the lunch hour rule. It does not, however,
explain why Respondent would begin docking men
a whole hour's pay when they arrived between 5
and 15 minutes late in the mornings or sending
them home for a whole day when they were late
rather than merely docking them for the time when
they were not at the store. This severe disciplining
of the men, after a long period of laxity in the en-
forcement of attendance rules, and starting not
simultaneously with the effective date of the Wage
Hour Amendment but shortly after the men had
joined the Union, leads me to the conclusion, and I
find, that Respondent was principally motivated in
this action by a desire to retaliate against the men
Kinser, a witness called by Respondent, testified that February was "a
pretty good month all the way around", Twigg characterized it as "a pretty
good month" for him, and Sica called it a "decent month "
350-999 0 - 71 - 45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for having joined the Union and to discourage their
membership in it.
4. The strike and its cause
Simultaneously with organizing the automobile
salesmen at Respondent's agency, the Union was
engaged in organizing the salesmen at other agen-
cies in the Akron, Ohio, area. Union meetings were
attended not only by Respondent's salesmen but by
those of other Akron dealers as well.
On March 16, the salesmen of substantially all
the automobile dealers in Akron, including those of
Respondent, walked out on strike. The strike lasted
until April 5 when the Union called it off and the
men applied for reinstatement. The only two of
Respondent's salesmen who remained on strike
throughout its duration, Forest and Koger, were de-
nied reinstatement for about 2 weeks following
their applications for reinstatement. It is the con-
tention of the General Counsel that the strike was
caused at least in part by Respondent's unfair labor
practices and that Forest and Koger, as unfair labor
practice strikers, were entitled to reinstatement im-
mediately upon their applications. Respondent, on
the other hand, contends that the strike was an or-
ganizational strike intended to force all the Akron
dealers to recognize and bargain with the Union in
a single multiemployer unit. I turn now to a con-
sideration of the evidence relating to those conflict-
ing claims.
Kenneth Ciarcia, the Union's financial secretary
until August 1967 and thereafter its business
manager, testified that prior to Sunday, March 12,
when the strike vote was taken, the salesmen from
all the Akron dealers had complained at union
meetings or to him personally or over the telephone
that their employers were harassing them in various
ways since they had joined the Union. He remem-
bered Forest and Koger from Respondent's agency
as among the salesmen who had talked to him
about being harassed but could not remember any
specific complaint they or any other salesmen had
made. Twigg testified that before he left Respon-
dent's employment on March 1, he and other
salesmen had talked to union representatives about
how the pressure "was building up," like in "boot
camp." Forest testified that prior to the date of the
strike vote, he, Kinser, and John Sica had talked to
Howard Trumble, who was then the Union's pres-
ident. about the salesmen "going `hooping' in bad
weather, about the letters, and about checking in
and out, about getting docked if you are late, and
general harassment and the attitude of management
toward us."5 Koger testified that at the strike vote
meeting, he talked to some of the salesmen present
about Respondent's harassing its salesmen by
requiring them to send out the letters.
It is reasonably clear from a preponderance of
the evidence that the salesmen at the March 12
meeting voted on several motions: ( I ) whether
there should be a strike only of those dealers who
had fired union members; (2) whether to strike all
the Akron dealers; and (3) whether the strike
should be only for 1 day or for an indefinite dura-
tion. The result was a decision to strike on a city-
wide basis and for an indefinite duration.
The reasons for the citywide strike, however, are
not entirely clear. Ciarcia testified that Union Pre-
sident Trumble spoke at the meeting about the em-
ployer harassment in the Akron area against the
employees who had signed union cards and that the
employees voted to strike to "stop the harassment."
He further testified that recognition was not even
discussed at the meeting. John Sica testified at first
that he was striking to stop harassment by Sales
Manager Walker, such as belittling remarks about
the Union; then that the men were striking "to or-
ganize the Union and be recognized as a union";
that each dealer was "trying to break up the or-
ganization or organizing power" in each dealership;
and finally that "the purpose was mainly because"
in every agency where there were union members
the men were being "picked on" and some em-
ployees were even fired because of the Union. Ac-
cording to Koger, the principal issue in the strike
vote was dealer harassment of the men and the vote
was whether to strike the dealers who were firing
men and doing most of the harassing or to strike all
of them.
The evidence presented by Respondent regarding
the reason for the strike consists of an affidavit by
Respondent's counsel and an attached memoran-
dum. It was stipulated at the hearing that Respon-
dent's counsel, if called as a witness, would testify
in accordance with those documents. From this
evidence it would appear that in February Kamin-
ski, Respondent's counsel, was told by several of
the Akron automobile dealers that the Union had
begun organizing salesmen in Cleveland and that
"they thought perhaps the local dealers ought to be
thinking about protecting themselves against such
organization," and later that month they informed
him that 6 to 12 dealers had received telegrams
from the Union demanding recognition as the
representative of their salesmen. Kaminski advised
them not to do anything unless and until a
representation petition was filed with the Board and
then to seek legal counsel. Later, as representation
petitions were filed, Kaminski was employed by
substantially all the Akron dealers, including
Respondent, to represent them. At Kaminski's sug-
gestion, the dealers named an executive committee
to act as a liaison between Kaminski and the in-
dividual dealers. He, rather than individual dealers,
thereafter dealt with Union President Trumble in
' Trumble was no longer an officer of the Union at the time of the hear-
ing and he did not testify Union counsel stated at the hearing that his
whereabouts were unknown and that he was unavailable as a witness
WEST SIDE PLYMOUTH, INC. 691
regard to the representation matters. In conversa-
tions with Kaminski, Trumble expressed the view
that he "was going to organize the Akron Automo-
bile Dealers Association and that there was going to
be one uniform pay plan."
On the morning of March 16, when the strike
began, Kaminski met with the executive committee
of the automobile dealers to discuss the strike.
While at the meeting he telephoned Trumble and
asked him why he was striking the automobile
dealers. According to a memorandum dictated by
Kaminski, that afternoon the following conversa-
tion ensued:
The undersigned asked Mr. Trumble why he
was striking the automobile dealers. He said
that he had been on strike because of the un-
fair labor practices that the dealers had been
indulging in for the last several weeks. Then he
hestitated and said "which agencies did you
say? Universal?" And I explained to him, well,
let's use the example of Universal and City and
I told him that these particular owners would
like to know what particular unfair labor prac-
tices they had committed. Mr. Trumble said
that it may not have been an individual act on
the dealer's part but he said that we are one or-
ganization and if one guy has a grievance it is
the organization's grievance. He went on to say
that whereas he couldn't point out specific un-
fair labor practices at Universal and City he
said there wasn't a man in the organization that
couldn't legitimately file a legitimate charge
with the Board. I then asked him if he was
striking all the dealers for one unfair labor
practice. He did not answer the question. He
said that it is rather obviously wanted. He said
first he wanted recognition and then they
wanted the unfair, labor practices stopped. I
asked him that if he was striking for recogni-
tion that each 'dealership, for instance at City
Chevrolet, or is he striking all the dealers as a
group, He explicitly said with "we are striking
as a group." I restated the question and said
then it's your ^ position that all the dealers
should recognize you in one single bargaining
unit? He answered "This is what we want,
yes." I then stated that Mrs. Yontz and Mr.
Cahill and Mr. Greenwald were sitting opposite
me at that moment and that I could tell them
that the strike would be settled only if all the
dealers would agree to recognize the PASA as
the bargaining agent for the employees of all
those dealers as a single bargaining unit. He
answered "That is correct." I then said "Then
what you want is group recognition?" He an-
swered "That's correct."
The Union did not inform Respondent of the
reason it was striking. Between March 12 when the
strike vote was taken and March 16 when the strike
became effective, John Sica talked to Spikerman
about what he should do about participating in the
strike and Spikerman, although advising him that
he would have to make up his own mind, ap-
parently did not question him- as to the reason for
the strike. Spikerman did later question Forest on
the picket line as to the reason for the strike and
was told that "this was for the better [ment] of all.
sales personnel in Akron, that there were certain
dealers treating their sales personnel poorly."
A careful consideration of all the evidence con-
vinces me that the reasons assigned by Union Pre-
sident Trumble to Kaminski for the strike are not
necessarily inconsistent with those about which the
salesmen testified. The Union, although attempting
to organize all the automobile dealers in the Akron
area at the same time, was requesting recognition
and filing representation petitions on an individual
dealership unit basis. It was met, however, with
reaction on an employer organizationwide basis
and, despite having sought single employer bargain-
ing units , was apparently quite willing and even
desirous of dealing with the employers on the same,
basis on which they appeared to be organizing for
the purposes of dealing with the Union.6 From re-
ports made to the union representatives and aired
at union meetings that all or substantially all of the
Akron dealers were adopting harassing tactics to
discourage union membership, Trumble was war-
ranted in assuming , as he told Kaminski, that there
was not one dealer against whom an unfair labor,
practice charge could not legitimately be filed.'
In these circumstances, the fact that the salesmen
decided to call a citywide strike and that Trumble
thereafter adopted the view, suggested to him by
Kaminski 's question, that the strike could be settled
only if all the dealers agreed to recognize the Union
as bargaining agent of employees of all the dealers
on a single-unit basis, does not militate against a
finding that the strike was caused in substantial part
by what the union members believed to be a course,
of unfair labor practices engaged in by substantially
all the Akron dealers, including Respondent. Such
a finding is supported not only by testimony of
several of Respondent's salesmen and by Union
Representative Ciarcia, but also by the evidence
adduced by Kaminski. I am convinced and find on
the basis of the testimony of Respondent's salesmen
as to their complaints to the union representatives
and as to what was said at the strike vote meeting
that Respondent's unfair labor practices were an ef-
fective cause of the participation by Respondent's
salesmen in the strike. Regardless of what other
s As pointed out in N.L.R.B v Spun-Jee Corporation, 385 F 2d 379, 381 the employers and Union agree to bargain on such a basis.
(C A, 2), decided October 30, 1967, "Multi-employer bargaining associa- ' No evidence was adduced to show that employers other than Respon-
tions are established and disestablished by the mutual consent of the em- dent had in fact engaged in any unfair labor practices and no finding in that
ployers and the union "Accordingly, even though a single-employer unit is regard is made herein Nor is such a finding necessary for a determination
appropriate in this case, a multiemployer unit might become appropriate if of the issues before me
692- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers may have done, it is a reasonable in-
ference that Respondent's salesmen would not have
supported the strike if their own Employer had not
engaged in unfair labor practices in the manner
testified to by them.'
5. Respondent's delay of 2 weeks in reinstating
Forest and Koger
When the strike was called off on April 5, 1967,
William Forest and Porter H. Koger separately ap-
plied for reinstatement. New Car Sales Manager
Walker, who interviewed Forest, told the latter that
he had been replaced and was no longer needed.
Forest asked for a written statement giving the
reason for,his replacement. Walker stated that he
would have to consult Respondent's counsel. About
a half hour or more later Walker informed Forest
that he had not given Forest a statement when hir-
ing him and was not going to give him one "now."
Koger applied to President Spikerman for rein-
statement . Spikerman stated that he did not know
whether he could use Koger of not and would have
to consult with his managers. Shortly thereafter,
Used Car Sales Manager Don Sica came from a
conference with Spikerman , and announced to
Koger that Respondent could not use his services at
that time, that Respondent had four employees
while-the strike was in progress , and that it still had
four and did not need Koger and Forest.
Koger and Forest soon thereafter obtain employ-
ment with another Akron car dealer. On April 11,
the Union filed charges on their behalf against
Respondent. On April 20 Respondent's office
manager came to their new place of employment
with letters informing each that Respondent was
thinking about hiring new employees and that, as
required by law, it was offering each his old job
back and giving him 2 days in which to make up his
mind whether to accept the offer. Each accepted
the offer and returned to work.
Since, as has been found herein, at least one of
the operative causes of the strike was Respondent's
unfair, labor practices, Respondent was under an
obligation to reinstate the strikers upon their appli-
cations at the conclusion of the strike and its
refusal to do so was a violation. of Section 8(a)(3)
and (1) of the Act. Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. Wooster
Division of Borg-Warner Corp., 236 F.2d 898, 907
(C.A. 6); N.L.R.B. v. Wichita Television Corp., Inc.,
277 F.2d 579; 584 (C.A. 10), cert. denied 364 U.S.
871.
The legality of Respondent's conduct in refusing
to reinstate Forest and Koger upon their applica-
8 Two of Respondent 's six salesmen who signed union cards left Respon-
dent's employment before the strike The other four engaged in picketing
activities , albeit one of them, Kinser , participated for only about 20
minutes
' These four consisted of Kinser, who abandoned the strike, Parris and
McCloskey , each of whom started working on March 10 and did not join
tions needs not rest, however, upon my- conclusion-
that Respondent's unfair labor practices were an
operative cause of the strike. Even if I were per-
suaded that the unfair labor practices by Respon-
dent had nothing to do with the employees' deci-
sion to strike, I would nevertheless find that
Respondent's refusal between April 5 and 20 to
reinstate Forest and Koger was discriminatorily
motivated. Spikerman testified that since
November 1964, he has been, trying to build up a
sales force of 10 people and is still in the process of
trying to do so; that he did not have enough people
to handle the business which he anticipated during
the spring. sales which generally follow the, sale-
arama, a local promotion show held, in February or
early March each year; that in February and just
before the strike he had 6 salesmen in,his employ;
and that at the end of the strike he had only 4
salesmen working.'
Thus, Respondent was manifestly understaffed
when the strike terminated and needed six more
salesmen to build up the staff which it had been try-
ing to build since 1964. At least two of the four
salesmen then working, Parris and McCloskey,
were novices or trainees . Koger had- worked for
Respondent for about 2 years before the strike and
Forest,since October 1966. As the record made
clear, it takes time for a salesman to build up a
good clientele, and many of his sales are made to
repeat customers. Twigg testified, that ,about-15 of
the approximately 21 cars he sold in February were
to repeat customers. Moreover, the $1 an' hour
minimum wage which Respondent paid its salesmen
was only a small part of the earnings of a good
salesman . Most of their earnings are from commis-
sions made on the sale of cars, a type of income
which is shared by Respondent. As Spikerman re-
minded Koger in questioning him about what the
Union-could do for him, Koger had-earned over
$11,000 during the preceding year. In these cir-
cumstances, I do not credit Respondent's explana-
tions made to Koger and Forest for -not reinstating
them when they applied for reinstatement; at .the
conclusion of the strike. It is a more reasonable in-
ference, and I find, that Respondent was motivated
by an intent to punish them for having continued
on strike until it was terminated and a desire to
avoid reinstating these loyal union members, if
possible. It is noted that Respondent did not in fact
offer them reinstatement until after unfair labor
practice charges had been filed in their behalf. I
find that Respondent, in denying Koger and Forest
reinstatement at the time they applied, was dis-
criminatorily motivated and that it violated Section
8(a)(3) and (1) of the Act.
the strike, and another, Garrett, who did not start working until March 24
and likewise-did not join the strike Two, of Respondent's regular salesmen,
Stiffey and Twigg , quit Respondent 's employment about March I and
another, John Sica, did not apply for reinstatement after the strike and for-
mally resigned on April 12,
WEST SIDE PLYMOUTH, INC.
6. The refusal to bargain
It is undisputed that by February 13, 1967, when
Respondent received a telegram from the Union
notifying Respondent that a majority of its salesmen
had designated it to represent them and requesting
recognition as the collective-bargaining representa-
tive of these men, all six of the salesmen then em-
ployed by Respondent had, in fact, designated the
Union as their bargaining representative. It is also
undisputed that Respondent failed to answer this
telegram.
On March 18, during the strike, the Union sent
Respondent a telegram repeating its statement that
it was the authorized bargaining representative of
Respondent's salesmen, requested recognition as
such bargaining representative, and also requested
an arbitration of grievances.10 It was stipulated that
Respondent received this telegram on March 20,
but so far as the record shows, Respondent likewise
failed to reply to it.
In connection with processing the representation
petition which the Union had filed with the Board
on February 13, Respondent on February 22
mailed to^ the Regional Office of the Board a letter
dated February. 14, supplying a list of six salesmen
then employed by it. The names on this list are the
same as those who had signed union cards. The
complaint alleges, -Respondent's answer admits, and
I find that the appropriate bargaining unit consists
of the following employees of Respondent. "All
new and used car salesmen, licensed by the State of
Ohio, excluding office clerical employees, profes-
sional employees, irregular part-time salesmen,
guards and supervisors as defined in the Act."" By
its coercive and unlawful conduct following the
Union's request for recognition, Respondent made
the holding of a free election impossible and the
Union's majority status must be determined on the
basis of the union cards signed by the salesmen
prior to the occurrence of these unfair labor prac-
tices. I find on the basis of these cards that all of
the employees in the appropriate bargaining unit
had designated the Union as their bargaining agent
when the Union requested recognition.
Respondent has adduced no evidence as to its
reasons for refusing to recognize and bargain with
the Union. In its brief it contends that the Union's
demand for recognition, unaccompanied by any
offer of proof of its majority status, together with its
filing of the representation petition on the same day
Respondent received the request for recognition,
"was sufficient to raise a genuine doubt in the
minds of Respondent's agents" as to the Union's
majority status. But no agent of Respondent
testified that Respondent in fact had any such
doubt. I am convinced from all the evidence that
Respondent did not have and was not motivated by
" A similar telegram was sent to each of the other Akron dealers whose
salesmen were on strike
" This is the unit alleged by the Union in its representation petition as
693
any such doubt in refusing to recognize and bargain
with the Union. In the first place, it is a fair in-
ference and I find from Respondent's interrogation
of individual salesmen as to whether they had
signed union cards, and from the- open conversa-
tions of the salesmen about the Union in the
presence or hearing of management representa-
tives, that Respondent did know of the Union's
majority status soon after receiving the request for
recognition. In the second place, the threats of
reprisal by President Spikerman and Sales Manager
Walker and the imposition by them of more ardu-
ous working conditions (increased mailing and
"hooping." the latter even in severe weather, and
more strict enforcement of attendance rules) soon
after receipt of the Union's request for recognition
made it plain that "Respondent's failure to treat
with the Union was not because of its doubts of the
Union's authority to represent the employees, but
because of its unwillingness and opposition to the
Union in question." N.L.R.B. v. Armco Drainage &
Metal Products, Inc., 220 F.2d 573, 577 (C.A. 6),
cert. denied 350 U.S. 838. In these circumstances,
Respondent's refusal demonstrated a rejection of
the collective-bargaining principle and a desire to
gain time in which to dissipate the Union's majority
status. It was therefore in violation of Section
8(a)(5) and (1) of the Act.
Respondent suggests in its brief, as a further
defense to its refusal to bargain, that the Union's
request was for recognition and not for bargaining.
This belated defense is inconsistent with the posi-
tion taken by it at the hearing. On the first day of
the hearing Respondent's counsel stated that
Respondent "admits that the Union did request
bargaining, as alleged in paragraph 8 of the com-
plaint," thereby removing that allegation as an issue
in the case.
In any event, it is well settled that a request for
bargaining need not be in haec verba. Joy Silk Mills
v. N.L.R.B., 185 F.2d 732, 734 (C.A.D.C.), cert.
denied 341 U.S. 914. An employer's grant of recog-
nition to a union is, of course, the first step in the
process of collective bargaining and his statutory
duty to bargain "involves at the outset a duty to
recognize" the bargaining agent chosen by a
majority of his employees as the exclusive represen-
tative of all in the appropriate unit. N.L.R.B. v.
Clinton E. Hobbs Company, 132 F.2d 249, 251
(C.A. 1); N.L.R.B. v. Barney's Supercenter, Inc.,
296 F.2d 91, 93 (C.A. 3). The Union's request for
recognition in this case was clearly a request for
bargaining. Moreover, its request on March 18 for
an arbitration of grievance was a further request for
bargaining. -
Nor is there merit to Respondent's. suggestion
that the Union's filing of the representation petition
almost simultaneously with the request for recogni-
appropriate and it did not contend in this proceeding that any other unit is
appropriate
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion relieved it of its obligation to bargain. The
statute does not condition an employer's obligation
to bargain upon the Board's certification of a
union's representative status. Unions may seek
Board certification for reasons other than the
establishment of majority status. They may, for ex-
ample, desire to protect their representative status
for a period of at least a year, a protection normally
afforded a certified union (Ray Brooks v. N.L.R.B.,,
348 U.S. 96) but not extended to a noncertified
union. Unions may also wish to secure certain pro-
tection and advantages accorded to certified unions
under Section 8(b)(4)(i) and (ii) and (C) and
8(b)(7) of the Act. Unions, moreover, sometimes
file representations petitions simultaneously with
requesting recognition in order to save time where
they expect that the employer may question the
union's majority status when a bargaining con-
ference is finally obtained or at some stage during
the bargaining. The filing by a union of a represen-
tation petition is not inconsistent with and clearly
does not nullify a request for recognition. Arkansas
Grain Corp., 163 NLRB 625, and cases there cited
therein; Bilton Insulation, Inc. v. N.L.R.B., 297
F.2d 141, 144 (C.A. 4).
CONCLUSIONS OF LAW
1. By coercively interrogating employees regard-
ing their union memberships and sympathies and by
threatening store closure and loss of employment in
the car business because of the employees' selec-
tion of the Union to represent them, Respondent
has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed
under Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By imposing stricter and more arduous work-
ing conditions upon its employees because of their
selection of the Union to represent them, Respon-
dent has discriminated in regard to their terms and
conditions of employment in violation of Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices were an
effective cause of the participation by Respondent's
employees in the citywide dealership strike.
4. By refusing between April 5 and 20, 1967, to
reinstate employees William Forest and Porter H.
Koger, upon their applications, Respondent dis-
criminated against them in violation of Section
8(a)(3) and (1) of the Act.
5. All of Respondent's new- and used-car
salesmen , licensed by the State of Ohio, excluding
office-clerical employees, professional employees,
irregular part-time salesmen , guards and super-
visors as defined in the National Labor Relations
Act, constitute a unit appropriate for purposes of
12 Editorial " El Iniparcial" Inc v N L R B , 278 F 2d 184 (C A 1),
Piasecki Aircraft Corp v N L R B , 208 F 2d 575, 591-592 (C A 3), cert
denied 364 U S 933, D H Holmes Co, Ltd v N L R B, 179 F 2d 876,
879-880 (C A 5), N L R B v Delight Bakery , Inc , 353 F 2d 344 (C A 6),
collective bargaining within the meaning of Section
9(b) of the Act.
6. At all times since February 9, 1967, the Union
has been the exclusive bargaining representative of
the employees in the aforesaid bargaining unit.
7. By refusing on or about February 13, 1967,
and thereafter to recognize and bargain with the
Union, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(5) and
(1) of the Act.
THE REMEDY
It having been found that Respondent has en-
gaged in unfair labor practices, my recommended
order will require that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the policies of the Act.
In order to remedy its discrimination against em-
ployees William Forest and Porter H. Koger,
Respondent will be required to make them whole
for any loss of pay suffered by reason of the dis-
crimination against them by payment of a sum of
money to each equal to that which he would have
earned as wages between April 5, 1967, the date of
his application for reinstatement, and April 20,
1967, when Respondent offered him reinstatement,
less his interim net earnings.
To remedy Respondent's unlawful refusal to bar-
gain with the Union, my recommended order will
require that it bargain, upon request, with the
Union in the unit herein found appropriate. This
bargaining order would also be appropriate and
would be required herein even if, contrary to my
findings herein, Respondent had entertained and
been motivated by a good-faith doubt as to the
Union's representative status in refusing to bargain,
for such a bargaining order would be necessary in
order to remedy the other unfair labor practices
found herein.12
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby or-
dered that Respondent, West Side Plymouth, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees in re-
gard to their union membership or sympathies.
(b) Threatening store closure or other reprisals
because of the selection by its employees of Profes-
sional Automobile Salesmen Association, or any
other labor organization, as their bargaining
representative.
Wausau Steel Corp v NLR B , 377 F 2d 369 (C A 7 ), N L R B v Cal-
darera , d/bla Falstaff Distributing Company, 209 F 2d 265 (C A 8), J C
Penney Co, Inc v NL RB , 384 F 2d 479 (C.A 10) Cf NL RB v Flo-
inatic Corp , 347 F 2d 74 (C A 2)
WEST SIDE PLYMOUTH, INC.
(c) Imposing stricter or more arduous working Decision , what steps
conditions upon its employees because of their herewith. 14
selection of the Union as their bargaining represen-
tative.
(d) Refusing to reinstate or otherwise dis-
criminating in regard to the hire or tenure of em-
ployment or any term or condition of employment
of its employees because of their participation in a
lawful strike called by the Union.
(e) Refusing, upon request, to bargain collec-
tively with Professional Automobile Salesmen As-
sociation as the exclusive representative of its em-
ployees in the following appropriate unit: All of its
new- and used-car salesmen, licensed by the State
of Ohio, exclusive of office-clerical employees,
professional employees, irregular part-time
salesmen, guards and supervisors as defined in the
National Labor Relations Act.
(f) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them under Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make William Forest and Porter H. Koger
whole for any loss of pay they may have suffered
during the period between April 5 and 20, 1967,
when it refused to reinstate them upon their appli-
cations, in the manner set forth in the section
herein entitled "The Remedy."
(b) Upon request, make available to the Board
and its agents , for examination and copying, all
payroll records and other data helpful in analyzing
the amounts of backpay due under the preceding
provision of this Recommended Order.
(c) Upon request, bargain collectively with
Professional Automobile Salesmen Association, as
the exclusive representative of all the employees in
the unit described above concerning rates of pay,
wages, hours of employment, and other conditions
of employment and, if an understanding is reached,
embody such understsnding in a signed agreement.
(d) Post at its place of business in Akron, Ohio,
copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted, Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this
'3 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
695
have been taken to comply
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 8 , in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act,_ as amended, we hereby
notify our employees that:
WE WILL NOT coercively interrogate our em-
ployees in regard to their union membership or
sympathies.
WE WILL NOT threaten to close our place of
business or engage in other reprisals against
our employees because of their selection of
Professional Automobile Salesmen Associa-
tion, or any other union, as their bargaining
representative.
WE WILL NOT impose stricter or more ardu-
ous working conditions upon our employees
because of their selection of the Union to
represent them.
WE WILL NOT refuse to reinstate or otherwise
discriminate against any employee because of
his participation in a lawful strike called by the
Union.
WE WILL make William Forest and Porter H.
Koger whole for any loss of pay they may have
suffered by reason of our refusal to reinstate
them between April 5 and 20, 1967.
WE WILL, upon request, bargain collectively
with Professional Automobile Salesmen As-
sociation as the exclusive representative of our
employees in the following appropriate unit:
All of our new- and used-car salesmen,
licensed by the State of Ohio, exclusive of of-
fice-clerical employees, professional em-
ployees, irregular part-time salesmen, guards
and supervisors as defined in the National
Labor Relations Act.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of any labor organization of their choice, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as
amended.
WEST SIDE PLYMOUTH,
INC.
(Employer)
Dated By
(Representative) (Title)
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 522-3738.
SUPPLEMENTAL ORDER
June 11, 1969
On March 22, 1968, the National Labor Rela-
tions Board issued a Decision and Order' adopting
the findings, conclusions, and recommendations of
the Trial Examiner as contained in her Decision of
December 8, 1967, and ordered the Respondent,
West Side Plymouth, Inc., its officers, agents, suc-
cessors, and assigns, to take the action set forth in
the Trial Examiner's Recommended Order.
Thereafter, on January 29, 1969, the General
Counsel filed with the Board a motion seeking
amendment to the Decision and Order of the Board
and reopening of the record for limited purposes. In
his motion, the General Counsel moved the Board
to take official notice of the proceedings in Apcoa
Motors, Inc., et al., Cases 8-AC-55 through
8-AC-64;2 that the Board reopen the record and
receive in evidence (a) the Decision and Order
Amending Certifications of the Regional Director
for Region 8 issued on October 9, 1968, in Apcoa
Motors, Inc., et al., supra; (b) the Employer's
request for review of the Regional Director's Deci-
sion and Order Amending Certification in Apcoa
Motors, Inc., et al., supra; and (c) the Board's tele-
graphic denial of the Employer's request for review
in Apcoa Motors, Inc., et al., supra. He further
requested that, on the basis of the foregoing, the
Board amend its Order by substituting "Profes-
sional Automobile Salesmen Union, Local 436, af-
filiated with Office and Professional Employees In-
ternational Union, AFL-CIO," hereinafter referred
to as OPE, for "Professional Automobile Salesmen
Association," hereafter referred to as PASA, and
order the Respondent, upon request, to bargain col-
lectively with OPE, as the exclusive representative
of the employees in the appropriate bargaining unit.
On February 10, 1969, Respondent filed an ob-
jection to General Counsel's motion, alleging that
"said motion is unsupported by law or by
evidence." On March 20, 1969, the Board issued a
notice to show cause, requesting that "specific
cause" be shown why the Board should not grant
the General Counsel's motion seeking amendment
to Decision and Order of the Board and reopening
of record for limited purpose. On March 31, 1969,
Respondent stated that it would not formally
respond to the show cause order, but that its posi-
tion in this regard should "not be interpreted to
mean a waiver of any of the Respondent's rights
with respect to any subsequent proceedings or
further orders of the Board."
The facts of this case briefly are as follow. PASA
was formed in late 1966 and began organizing vari-
ous employees of automobile dealers in the Cleve-
land and Akron, Ohio, areas. In late 1967, PASA
officials considered the possibility of affiliating with
an International union. On January 9, 1968, PASA
officials were authorized by a membership vote to
take steps necessary to affiliate with OPE. After the
OPE charter was issued to PASA petitions were
filed seeking to substitute the name of the affiliated
union in the 10 cases in which PASA, through
Board-conducted elections, had been certified.
These petitions were dismissed by the Regional
Director for Region 8 because of deficiencies in the
affiliation vote. On July 30, 1968, pursuant to
notice to the membership, a second affiliation vote
was conducted, and on September 6, 1968, the AC
petitions were again filed. On October 9, 1968, the
Regional Director granted the petitions finding that
the affiliation was proper and changing the name of
the union in the certified units. The requests for
review in these cases were denied by the Board on
November 7, 1968.
Thus, in Apcoa Motors, Inc., et al., supra, the Re-
gional Director, and the Board, on review, had oc-
casion to consider the validity of PASA's affiliation
with the OPE. The Board in denying review in that
case was of the opinion that the facts adequately
supported the Regional Director's action in both
upholding the validity of the affiliation, and on the
basis thereof, amending the name of the certified
bargaining agent in 10 separate collective-bargain-
ing units. As the motion of the General Counsel in
the instant case is based )upon the Board's action in
Apcoa Motors, which, in turn, was based upon facts
that appear controlling herein, we shall grant the
General Counsel's motion. Accordingly, we shall
reopen the record to receive in evidence: (a) the
Regional Director's Decision and Order Amending
Certifications in Apcoa Motors Inc., et al., supra;
(b) the Employer's request for review of said Re-
gional Director's Decision and Order and the
Board's denial thereof.
Under all the circumstances, we find that the
Union, OPE, is a continuation of PASA, and it has,
as in Apcoa Motors, Inc., et al., supra, succeeded to
the representation rights among the employees in
the appropriate bargaining unit herein.
ORDER
IT IS HEREBY ORDERED that the Decision and
Order in Cases 8-CA-4651-1,-2, and 8-CA-4658
170 NLRB No 98
s Not printed in Board volumes
WEST SIDE PLYMOUTH, INC. - 697
be, and, it hereby is, amended by substituting "Professional Automobile Salesmen Association,"
"Professional Automobile Salesmen Union, Local in the Trial Examiner's Recommended Order, as
436, affiliated with Office and Professional Em- adopted by the Board and the notice marked "Ap-
ployees International Union. AFL-CIO" for pendix" attached to that Decision.