Anderson Chevrolet-Chrysler/Plymouth, 585 (2001)

Anderson Cupertino d/b/a Anderson Chevrolet-Chrysler/Plymouth and Teamsters Automotive Workers Local No. 665, International Brother-hood of Teamsters, AFL-CIO. Case 32-CA- 17034

March 13, 2001

DECISION AND ORDER

BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND WALSH

On August 3, 1999, Administrative Law Judge James

M. Kennedy issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed a brief in opposition to the Charging Party's exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions2 and to adopt the recommended Order.

ORDER

The recommended Order of the administrative law judge is adopted and the complaint is dismissed.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by all parties, I make the following

FINDINGS OF FACT

1. JURISDICTION

   Respondent admits it is a California corporation which operates an automobile dealership at the facility in question in Cupertino, California. It further admits that its annual gross volume of business exceeds $500,000 and that it annually purchases goods from outside the State valued in excess of $5000. It therefore admits, and I find it to be, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In addition, it admits that Teamsters Local No. 665 is a labor organization within the meaning of Section 2(5) of the Act, and I so find.

2. ALLEGED UNFAIR LABOR PRACTICES

   Introduction

   Judy Chang, Esq., for the General Counsel.

   Robert Hulteng, Esq. and Robert T. Landau, Esq. (Littler Mendelson), of San Francisco,

   California, for the Respondent.

   David A. Rosenfeld, Esq. and Manokharan Raju, Esq. (Van Bourg, Weinberg, Roger &

   Rosenfeld), of Oakland, California, for the Charging Party.

   DECISION

   STATEMENT OF THE CASE

   JAMES M. KENNEDY, Administrative Law Judge. This case was tried in Oakland, California, on June 9, 1999, pursuant to a complaint issued by the Regional Director for Region 32 of the National Labor Relations Board on January 29, 1999. The complaint is based upon unfair labor practice charges originally filed by Teamsters Union Local No. 665, AFL-CIO on October 13, 1998. The complaint alleges that Respondent, Anderson Cupertino d/b/a Anderson Chevrolet-Anderson Chrysler/Ply-mouth, has violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA), alleging an untimely withdrawal of recognition. Respondent,

   Anderson Cupertino, denies the commission of any unfair labor practices, asserting that it has never recognized the Teamsters in any unit, much less the unit alleged in the complaint.

   In significant measure, this case depends on credibility resolution. Specifically, there are two stories being told which are in opposition. The first is by Teamsters Organizer Daniel "Dan" Lynch, who is supported in part by Andy Mattos, an area director for the District Lodge 190 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Mattos represents IAM Local Lodge 1101 in its dealings with employers. Collectively, I shall refer to these entities as the IAM. In separate respects, however, Mattos does not corroborate Lynch, but tends to support Respondent.

   The other version is presented by Richard Doyle. Doyle is currently the fixed operations manager for the entire Anderson Dealership Group1 of which Respondent is a recent addition. During the period in question, late October 1997, through June 1998, Doyle was first the fixed operations manager for Respondent, later becoming its general manager in March 1998. The fixed operations manager is the executive responsible for the dealership's "behind the wall" operations, generally the service/repair facilities. That individual has no responsibility with respect to the automobile sales or parts departments. He does report to the dealerships' general manager.

   Doyle was hired by Anderson Group to be Respondent's fixed operations manager on October 14, 1997. He assumed his duties at that location 2 weeks later on October 27, when Anderson took the facility from the previous owner, Davidson Chevrolet/Century Cadillac. Its principal was a Jerry Davidson.

   Doyle and Mattos are longtime acquaintances. Moreover, Doyle, before he went into management, has been a member of both Teamsters and IAM local unions in the area.

   It is undisputed that Davidson's mechanics had been represented by IAM Local Lodge 1101. When John Anderson purchased the facility, he asked Davidson's employees to apply for the same job with him. All of the mechanics did so and all were hired by Respondent.

   As a result, Respondent early on recognized that it was, in labor relations terms, a successor employer obligated to recognize the IAM and Doyle appears to have been instructed to do so. The then general manager, Barry Rodenberg, gave Doyle some instructions and some guide-lines in that respect. Those instructions required him to seek a wall-to-wall collective-bargaining contract with the IAM identical to that which covered the Anderson Chevrolet dealership in nearby Los Gatos.

   In addition, it is undisputed that none of Davidson's lot people, if any, applied for work with Respondent. Respondent had to seek that type of employee from scratch. Doyle testified that the first such individual he hired was named Hess on November 5, 1987. Doyle also wanted to persuade a detailer at the Anderson Chevrolet store in Los Gatos to become the detail shop manager at Cupertino and had had several conversations with that individual prior to November 5.

   1 The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

   2 We agree with the judge that there is insufficient credible evidence to establish that the Respondent recognized the Charging Party as the representative of its lot employees. See Trevose Family Shoe Stores, 235 NLRB 1229 (1978). A fortiori, there is insufficient evidence of recognition under the test of Nantucket Fish, 309 NLRB 794 (1992) (requiring clear, express and unequivocal evidence of recognition). In addition, there is insufficient evidence of majority status. Finally, in light of the above, we need not pass on whether the allegedly recognized unit was an appropriate one.

   1 The Anderson Dealership Group is owned by John Anderson. It consists of five dealerships in the Santa Clara/San Mateo Counties area. Four, including Respondent, are unionized.

   There is some curious testimony about whether Davidson's lot people2 had been covered by any union contract. Lynch concedes that there was no Teamsters contract with Davidson; Mattos claims there was a Teamsters contract with Century.3 (Oddly, Lynch believes the lot people at Davidson were represented by the IAM. Tr. 59.) Respondent, perhaps indirectly confirmed by Mattos,4 asserts that if there was a Teamsters contract, it covered only one person, Mr. Davidson's personal chauffeur.5 Whatever the situation, there is no contention that Respondent had any successor obligations insofar as the lot people are concerned.

   Like Doyle, Mattos had instructions, too. He was to gain IAM representation of only the mechanics (technicians), body shop employees, and painters. In the past, prior to the return of the Teamsters to the AFL-CIO, there had not been much concern for the Teamsters "jurisdiction" over lot people. Indeed, that had led to IAM wall-to-wall representation at various dealerships in the San Francisco Bay area, if not throughout the country. It may be inferred that Anderson's Los Gatos Chevrolet's wall to wall IAM representation arose during the era when the IAM had no policy barring representation of lot people. It may also explain Lynch's belief that the Davidson lot people had been covered by the IAM contract. By 1997, however, the IAM's policy had changed to honor what was regarded as traditional Teamster jurisdiction, employees who were not performing repair work. Mattos was under instructions to follow that policy. Lot people were to be left to the Teamsters.

   Prelude to the Meeting of November 5, 1997

   Mattos, in late October 1997, had heard rumors that Davidson was going to sell the Cupertino operation to Anderson and decided to investigate. He somehow ended up talking to Doyle by telephone. Doyle says it was he who he called Mattos. In any event, in their first call, Doyle confirmed the sale and advised that he was in charge of the repair side of the business. This was good news to Mattos who has known Doyle for many years, had actually worked for him as a mechanic at one time, and had also performed union business with him at other locations where Doyle has worked. They had/have a good personal and professional relationship.

   According to Mattos, Doyle recognized that Respondent had an obligation to recognize the IAM. Mattos said, "I advised him that we wanted to represent our traditional jurisdiction in that dealership and I hoped we didn't have a problem, and he made some joking reference to he didn't expect that he would have a problem with me, and we agreed to meet November 5th." Mattos also said he was going to bring a Teamster representative to the meeting. He says he told Doyle, "I want[ ] the Teamsters to have their traditional jurisdiction in that bargaining unit, I [do] not want their jurisdiction."

   Mattos did not describe what the so-called "traditional"...