# Petition — Spitzer Akron, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0780%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1040 ## Text Supreme Court J. & FILED SEP 22 wWié IN THE MICHAEL RODAK, JR., CLERK ————— SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1976 CASE no. EG =560 4q SPITZER AKRON, INC., Petitioner, -vs- NATIONAL LABOR RELATIONS BOARD, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AND APPENDIX ROEMISCH AND WRIGHT M. ALFRED ROEMISCH, Of Counsel DONALD N. JAFFE, Of Counsel 800 National City Bank Building Cleveland, Ohio 44114 Tel: (216) 241-4755 Attorneys for Petitioner. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1976 CASE NO. SPITZER AKRON, INC., Petitioner, -vs- NATIONAL LABOR RELATIONS BOARD, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AND APPENDIX ROEMISCH AND WRIGHT M. ALFRED ROEMISCH, Of Counsel DONALD N. JAFFE, Of Counsel 800 National City Bank Building Cleveland, Ohio 44114 Tel: (216) 241-4755 Attorneys for Petitioner. TABLL OF CONTENTS Statement of Jurisdiction . .« .»« e« e« e Question Presented for Review. . + « -« Statement of the Casc. . . . ° . . . Argument in Support of Petition for Certierari. « © © © ec & In light of this Court's decision in N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972), does a successor emplover violate Section 8(a) (5) of tive National Labor Relations Act when it retains less than all of the pred- ecessor's employevs and unilaterally in- stitutes wage rates, hospitalization plan and other terms of employment at the in- ception of its acquiring the predecessor company aad the predecessor's bargaining agreement having expired. Appendix (separately numbered) Decision of the U. S. Court of Appeals, Sixth Circuit, enforcing Second Supple- mental Decision of N.L.R.B.e. « «© «© « « Second Supplemental Decision and Order of N.L.R.B. . . . . s . . s . . Decision of the U. S. Court of Appeals, Sixth Circuit, Keversing and Remanding Supplemental Decision of N.L.R.B. . . . Supplemental Decision and Order of N.L.R.B. a . . . . . oO . * . . ale Order of U. S. Supreme Court Granting a Writ of Certiorari, Vacating Judg- CASES (Cont'd.) mend and Remanding Case « .« « « « « e« 36 Spitzer Akron, Inc. v. N.L.R.B., 195 NLRB Decision of the U. S. Court of Appeals, No. 24, 79 LRRM 1286; affirmed, 479 F.2d Sixth Circuit, Enforcing Initial Decision 1000 (CA 6, 1972); cert. granted, judgment Of NeoLsR.Be s + 6 © © © © © © 0 6 vacated and remanded, 411 U.S. 979 (1973); reaffirmed, 20% NLRB No. 80, 35 LRRM 1138; Initial Decision of N.L.R.B. . . . ° . 39 reversed and remanded, 504 F.2d 28 (CA 6, 1974); reaffirmed, 219 NLRB No. 2, 89 LRRM Decision of Trial Examiner . . . ° . ° 48 1679; affirmed, __ F.2d __ (CA 6, 1976), 92 LRKM 3007. ° . . . . . . ° . . . 1,29,21 CASES _ TATUTES FIC v. Sperry & Hutchinson Co., 405 STA U.S. 233, 245-250 (1972). . o . . . . 24 25 B.8.6. Section 1254 ° - 2 o P e a l Golden State Zottling Company v. Section 10(e) and (f), ational Labor Re- ,* Hevard Jehncen Coy > Se ee Section 3(a)(5), National Labor %elations 3, 11,13 Board, 417 U.S. 249 CORD « 65 oe Act, as amended, 29 U.S.C. Sec. 15(a)(5) . 23,24 N.L.RK.B. v. Bac'irodt Chevrolet, 46% F. 2d at 969 (CA 7, 1972) « «© 6 © © =e N.L.ii.eb. v. Burns International 13,14,15, 16, Security Services, Inc., 406 U.S. 19,29, 21,22, 272 (1972) »« «© © © © © ow Railway v. REA Express, Inc., 523 F. 2d 164, 17) (CA 2). ° . ° . ° . . 21 SkC v. Chenery Corp., 318 U.S. 39, 37-385 (1943). . . . - ° « ° . o e 24 “4 -iii- STATEMENT OF JURISDICTION This matter is before the Court on a petition for writ of certiorari to review an order and de- cision of the U. S. Court of Appeals for the Sixth Circuit entered on June 22, 1976, which upheld and enforced a Second Supplemental Decision and Order of the National Labor Relations Board. The Court's opinion is not cited in the Federal Reporter System but is cited at 92 LRRM 3007 and reprinted at Appen- dix pages l-ll. The Board's decision: is cited at 219 NLRB No. 2, 89 LRR4 1679 and reprinted at Appen- dix pages 12-25. This Court has jurisdiction to review the instant case by certiorari pursuant to “24 U.S.C. Section 1254 and Section 10(e) and (f) of the National Labor Relations Act. (29 U.S.C. Sections léV(e) and (£)). This case was originally decided by tie Board at 195 NLRB No. 24, 79 LRR1 1286 (reprinted at Appendix pages 39-47.) enforcement grant:d, 470 F. 2d 1U0U (CA ©). A petition for a writ of cer- tiorari was granted by this Court, which vacated -le- the judgment and remanded the proceedings to the Board. 411 U.S. 979. The Board reaffirmed its original decision in a Supplemental Decision and Order, 208 NLRB No, 80, 85 LRRM 1138. (Appendix pages 28-35. On review the Sixth Circuit re- versed and remanded the proceeding again on the basis that petitioner had not been provided an opportunity to present its position on the remand. 504 F. 2d 28. (Appendix pages 26-27). The Board thereafter issued its Second Supplemental Decision which reaffirmed its two prior decisions. It is that last decision which is now before this Court. QUESTION PRESENTED FOR REVIEW In light of this Court's decision in N.L.R.B. vs. Burns International Security Services, Inc., 406 U.S. 272 (1972),-does a successor employer violate Section 8(a)(5) of the National Labor Relations Act when it retains less than all of.the predecessor's employees and unilaterally institutes wage rates, hospitalization plan and other terms of employment at the inception of its acquiring the predecessor company and the predecessor's bargaining agreement having expired. STATEMENT OF THE CASE In 1964 a Chrysler-Plymouth auto sales and ser- vice facility was operated at 457 East Market Street, Akron, Ohio, by Arnett, Incorporated. On January 15, 1963 a new agency by the name of East Town Chrysler- Plymouth, Inc. operated the agency at the same ad- dress. East Town was organized through the co-oper- ation of the Marketing Investments Division of the Chrysler Corporation under an arrangement with one John Wilson whereby Wilson owned 25% of the capital Steck and Chrysler Corporation owned 75% of the cap- ital stock. On August 27, 1968 East Town executed a collective bargaining agreement with Local 762 of The International Association of Machinists expiring on August 31, 1970. During this time, there was a collective bargaining agreement between the same union and a multi-employer association, but neither East Town nor Spitzer Akron was a member. In April of 1970 preliminary negotiations between Chrysler Corporation and certain Spitzer personnel were held with a view to acquiring the Chrysler=-Plymouth agency at 457 East Market Street, Akron, Uhio, The initial negotiations alien », with Chrysler terminated on May 31, 1970 because of differences over the sale price. On July 22, 1970 enpibiahiihdehemeiial and continued throughout August and were finally consummated at about 5:00 p.m. on September 4, 1970 at which time Spitzer Akron, Inc. paid East Town approximately Two Hundred Ninety Thou- sand Dollars ($290,000.00) for the inventory of 82 new cars and some demonstrator cars. Spitzer Akron, Inc. received its interim license to do business as an automobile dealer from the State of Ohio on August 31, 1970, and was formally organized on September 1, 1970 with Alan Spitzer, John Spitzer and Del Spitzer each owning one-third (1/3) of the capital stock. On August 13, 1970 East Town notified the Union by letter that it was terminating its contract as of August 21, 1970 and also advised that substantially all of its assets had been sold. East Town, however, did not identify the Purchaser nor was a copy of that letter mailed to Spitzer Akron. As an accommodation to East Town customers, it was agreed that Spitzer Akron, Inc. would complete any work in process and, for accounting purposes only, obligated itself for -5- payroll expenses effective as of September 1, 1970. East Town operated a paint and body shop in conjunction with the auto agency. Spitzer Akron did not purchase that operation nor retain any o* the employees working in that classification even though they were covered in the former union contract. Spitzer Akron leased the paint and body shop area to one John Irec, an independent operator who hired his own employees and performed work for petitioner and many other customers. Excluding the paint and body shop employees (4 in number), petitioner re- tained i0 of the 11 East Town employees in the mechanical classification. After the negotiations were concluded on Sep- tember 4, 1970 Del Spitzer, John Spitzer and Alan Spitzer immediately held a meeting with the employees to explain the nature of the new dealership and the benefits that would be provided employees. Unilater- ally the Company gave wage increases and indicated that it would pay one-half (1/2) of the hospital insurance premiums, which hospital plan was suggested to be better than the plan the employees previously abe carried; payment of one-half (1/2) of the uniform expense; pay for 6 holidays per year and a week of paid vacation after a year of service. At the con- clusion of the remarks, Del Spitzer asked if any of the employees had any questions and there were none. Witness Andy Parks, who was the shop steward, testi- fied that no derogatory statements about the union or any of its officials were made by any of the Spitzers at that meeting nor was the union even dis- cussed. Although there were no questions raised at tne meeting, Andy Parks subsequently reported the remarks to business representative Samuel RKamnytz. On September 9, 1970 Ramnytz had a meeting with Alan Spitzer wherein Ramnytz indicated that the Union represented the employees of the auto agency and that the Union wanted a contract. At that time Spitzer asked what was involved in the contract. Ramnytz indicated the wage scale and fringe increases that were being negotiated with the dealers association (Spitzer Akron was not a participant or member), and indicated that whatever resulted from the areawide contract was the same contract that the Union would ate insist Spitzer sign. At that meeting it was indi- cated that the company did not foresee any problems pertaining to the wage issue. Alan Spitzer indicated to Ramnytz that the company had just taken over the business, was in the process of taking miscellaneous inventories and organizing the parts department, and that petitioner was in a state of confusion and re- quested the Union to grant the company an additional two weeks in which to straighten out its organization and make a decision after which they would again meet to discuss the situation. It was indicated to the union representative that the company was not willing to rubber stamp any contract negotiated by the multi- employer group. At that same meeting Ramnytz indi- cated that Spitzer Akron could continue operating during an existing strike against the multi-employer bargaining group provided that Spitzer Akron would agree to accept the contract which would eventually be signed between the Union and the multi-employer group. Petitioner refused to accept that proposal and eubsequently the Union struck petitioner. During that discussion on September 9, 1970, a§a Alan Spitzer said that in light of the comments with the employees on September 4th, he doubted that the employees wanted to continue with the Union and sug- gested that the Union petition the N.L.R.B. for an election and that if the employees selected the Union as their bargaining agent, that he would negotiate a contract. Ramnytz indicated that he had new author- ization cards but never actually showed them to Spitzer either on September 9 or at any time thereafter. On or about September 21, 1970 Ramnytz returned to the auto agency and was then advised by Alan Spitzer that the company was not going to recognize the Union for the reasons stated earlier on September 9, and then again reiterated that the Board should conduct an election to determine representation. On September 22, the employees went on strike and it was still in progress at the time of the hearing before the trial examiner on May 17, 1971. On March 26, 1971, 10 striking employees formally offered by letter to return unconditionally to work. The company had sent each a letter requesting them to return. Ramnytz testified that 8 of the 10 strikers He went with him one evening for purposes of arranging a return to work but that at that meeting Alan Spitzer said that the men would have to return the next day when the service manager would be present and that he and the service manager would interview them. When Ramnytz and the men came back the next day Alan Spitzer requested each employee to sign a new employ- ment application, When Ramnytz inquired as to why the new application was necessary Alan Spitzer indi- cated that they were considered new employees and would have to fill out the company's form, However, shortly thereafter, the company's attorney advised the Union and the Union's attorney that the form was only to ascertain their availability for work, that the striking employees were not considered as new employees and that the form was not a prerequisite for returning to work. During the aforementioned interview, some of the employees made arrangements with Alan Spitzer to return to work but all unit employees remained on strike. The Trial Examiner and the Board, whose deter- minations were upheld by the Court of Appeals, held -l0 — with the Board prior to the issuance of the Board's decision reported in 195 NLRB No. 24, respondent's brief filed in the United States Court of Appeals (6th Circuit) in Case No. 72-1187, 470 F.2d 1000, respondent's petition for a writ of certiorari filed with the United States Supreme Court and reported at 411 U.S. 979 (1973), and respondent's brief filed before the United States Court of Appeals (6th Circuit) in Case No. 74-1151." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In its original Decision and Order in this case, the Board found that Respondent had violated Section 8(a)(5) and (1) of the Act by making uni- lateral changes of wages and working conditions of employees in the appropriate unit on September 4, 1970, and by thereafter failing and refusing, on request, to recognize, meet, and bargain with the Union with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment of emplovees in the unit. As noted above, on November 27, 1972, the Sixth Circuit Court of Appeals ordered that the decision of the Board be enforced, stating: We conclude that there is substantial evidence to support the conclusion of the Board that Spitzer Akron was a successor employer and was obligated to bargain with the Union as a representative of the pred- ecessor employer, all of whom were employed by Spitzer Akron. N.L.R.B. v. Burns Inter- national Security Services, Inc., 406 U.S. 272 (1972); N.L.R.B. v. Wayne Convalescent Center, Inc., 4l5 F.2d 1039 (6th Cir. 1972). We further conclude that all other parts of tice decision of the board are supported -l5) IMCe, supra. - = TXD-410-71 enother leaves intact the identity of the employing enterprise, the duty of the former to recognize and bargain with an incumbent union, even in the period between contracts, devolves on the latter as the successor employer. Overnite Transportation Co. 157 NLRB 1185, enforced 375 F. 2d ‘765, (C.A. Ly, cert. denied 398 U.S. 838; The William J. Burns International Detective Agency, Inc., supra. The same authorities hold that the obligation of the successor employer to bargain with the incum- bent union includes the negative injunction to refrein from unilateral changes of wages and other benefits established by the expired contract. Hence, I must hold that Respondent's admitted unilateral increase of wages and other benefits of unit employees the same day that it consummated the purchase of the busi- ness was a vidlation of its collective-bargaining duty under Section 8(a)(5) of the Act. Respondent tries to distinguish the William J. Burns case because on review of the Board's decision therein (182 NLRB No. 50), the U. S. Court of Appeals, Second Circuit, on April 26, 1971 (77 LRRM 2081) re- fused to enforce the Board's bargaining order against the successor employer insofar as it ordered that employer to honor a collective-bargaining contract negotiated by the predecessor employer with e union only shortly before the transfer of ownership, on the theory that such order compelled the successor to accept a contract not negotiated by it, in violation of Section 8(d) of the Act. However, the Court still agreed with the basic principle reiterated by the Board and the courts as found above, that requires the employer succeeding to control of a continuing business enterprise to recognize and bargain with the union representing the unit employees therein (77 LRRM at pe 2083). Hence, the Circuit Court did not limit, but rather recognized the basic principle. 2. The refusal to bargain I have already found on the basis of the auth- oriLies ‘te? that Respondent technically violated abi) «TXD-410~71 Secticn &(a)(5) of the Act on September 4 by its unilateral changes of existing wages and working con- ditions of unit employees, and this alone would suffice to support an order to bargain in the usual form. However, the pleadings raise the issue whether Respondent has continued in any other respect to recognize or bargain with the Union, and both sides have argued the point whether Respondent after Sep- tember 4 had a bona fide doubt of the Union's majority status. At the outset, it is significant that after union agent Ramnytz on September 9 first requested Respondent to make a contract, 10/ his only suggestion about bargaining procedure was t Respondent accept 10/ In his testimony Ramnytz tried to advance the date of the Union's demand to an unidentified date in August, at which time he says he told Alan Spitzer and Wolfe that the Union had a contract and wanted to renew it because of the Group contract which was in negotiation at the time. I do not credit this story for various reasons: (1) while Ramnytz re- calls the talk of September 9 with Spitzer, he can- not recall the earlier date, which would be essen- tial to support General Counsel's claim that Re- spondent (though not yet in existence) had been operating the agency since August 19 as a successor employer (2) the alleged request for renewal of the current contract was not a proper request for bargaining because it was apparently tied to the pending negotiations with the Akron Dealers’ Group as appears in his remrks on September 9), end 3) the facts clearly showing the Spitzer interests did not close the deal with East Town and take over the business until late on September 4 gives the lie to Ramnytz' statement that the Spitzers indi- cated as early as August 19 that they were "slready carrying on the business.” Hence, I find no credible proof that the Union made any demand for bargaining, much less a proper one, on August 19 or earlier. -6l- TXD=4.10-71 whatever contract terms cawe out of the pending negotiations with the Akron Dealers bargaining Group. While Respondent did not at first glance see any great problem sbout the Union's wage demands to the Group, it did refuse to accept Blindly any overv1l Group contract without negotiating contract terms for itself, and then asked for a short period to get its business straightened out before entering on serious negotiations. The Union agreed to this, and was also receptive to Respondent's offer that it would negotiate a contract if and when the employees chose the Union in a Board-conducted election. I see no conduct of Respondent in this discussion which would justify a bargaining order, because the Union was trying to force Respondent to accept an outside contract as and if worked out by others, without negotiation, in order to avoid a strike of its employees. On this point, Respondent relies on the statement of the Second Circuit Court of Appeals in the William J. Burns case that "Neither the applicable case law nor the national labor policy justifies the Board in imposing a collective agreement upon an unwilling party who kad no part in the negotiation of the agreement" (77 LRRM at page 2083). I agree with this view, and hold that Respondent did not on Septenber 9 engage in any violation of the Act, particularly since it did net at that time express any doubt about the Union's majority status and was willing to negotiate a contract with it after an election or a short moratorium while it got its new business operating. 11/ 11/ I do not accept Respondent's argument that the Union never made a clesr and unequivocal demand for bargaining on September 9, for although Spitzer and Ramnytz gave diffcrent versions of what Ramnytz said on this subject, the gist of the whole conversation as found above from testimony of both makes it clear that Ramnytz was then seeking recognition of the Union and consummation of a contract, and Respondent's reply, acking “what was involved," which elicited Ramnytz' stateuwcnt of wage demands and request for Signature of the Group contract when ccusuumated, leeves no doubt that it viewed the first (Continued) =62e TXD-410-71 However, when Ramnytz on September 21 came back to request bargeining in effect, Respondent for the first time flatly refused to recognize the Union, which precipitated the strike the next day.. Respon- dent gave no reason for its refusal, other than to state the employees did not need a union, and to refer to instances of strike violence end damage to its property. Respondent tries to justify this re- fusal on the ground of a good-faith doubt of majority status, which it claims arose from (1) the failure of the unit employees to raise any questions on September 4 about the new wages ond working conditions announced unilaterally that evening, (2) the Union's certification as bargaining agent was "several years old," so that the l-year presumption of majority status after such certification does not apply; and (3) the Union's latest contract had just expired. In my view, none of these factors support the claim of bona fide doubt. First, mere silence of unit employees about the Union or their adherence to it when hearing wage raises and other increased benefits announced for the first time is an equivocal circumstance which falls far short of any reasonable indication that the employees no longer desired union representation; even if that inference could be justified on any theory, any disaffection of the employees at that point could well be attributed to the coercive effects 11/ (Continued) remarks as a request for negotiations. A request for bargaining need not follow any specific or precise wording or formula, but will be sufficient so long as there is a clear commun- ication of meaning, and the employer understands that a bergaining demand is being made. N.L.R.B. v. Barney's Supercenter, Inc., 296 F. 2d 93 (C.A. 3); Beverages, Ince, 102 NLRB No. 136. -63- TXD-410-71 of a sudden, unilateral grant of increased wages and benefits which violated bota Section 8(a)(5) and (1) of the Act. 12/ Having used such coercion, the em- ployer should not be permitted to profit by his own unfair labor practices which might tend to undermine the Union's past mJjority status. 13/ Second, the record shows that Locol 762 was cer- tified by the Board in 1961 as bargaining agent for unit employees working then for Arnett, Inc. After East Town succeeded Arnett in running the business, and the Union in 1970 took over the duties of Local 762 by merger, including the 1964 contract, it is clear that the Union continued to represent unit employees as statutory bargaining representative at least up to August 31, 1970, without objection from Arnett, East Town or even the Spitzer family when they began to work out a purchase of the business. 1h/ Hence, all the circumstances support an inference of continuance of the Union's majority status, and Re- spondent offers no congent proof of unusual circun- stances to rebut any presumption of continuance of 12/ See cases cited in footnote 9 above. 13/ Harold W..Hinson, d/b/a Hen House Market No. 3, 175 NLRB No. 100. 14/ The normal presumption of majority status of a union continues ‘during the operation of a con- tract having a union shop and checkoff clause which requires all unit employees to be members of the union. Having thus chosen 4 bargaining agent, there is no reason to believe that the employees would change their attitudes merely because the identity of their employer had changed. N.L.R.B. v. Albert Armato, 199 F. 2d 800, 803 (C.A. 7)- abhe TXD-410-71 that status in Local 762 and later the Union, after May 12, 1962. 15/ Finally, even if a claim of good-faith doubt as late as September 21 were supported by record facts or some theory other than urged above, it would be substantially weakened by two sets of circumstances: (1) Uncontradicted testimony of steward Parks shows that about September 13 or 14 Sales Manager Guy announced to Parks that he was going to discharge two unit employees because they could not do their work. He asked Parks for his comment, and Parks replied he had a right to discharge anyone he wanted to at any time, but that Parks would have to report it to the business agent of the Union and "you can take it from there." Neither employee was discharged. While Guy as sales manager would appear to have auth- ority only over salesmen, who are excluded from the appropriate unit, he did not testify, hence I must 157 It is well settled that, absent unusual circum- stances, there is an irrebuttable presumption that the majority status of a certified union continues for 1 year after the date of its cer- tification. After the first year the certificate still continues that presumption, but it is nor- mally rebuttable by an effirmative showing that the union no longer commands a mjority. More- over, where the certificate is a year or more old an employer may withhold further bargaining without violating the Act, and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority status, The employer must, however, adduce cogent proof of objective facts to fur- nish a reasonable basis for such doubt, and cannot rely on a mere assertion of it or proof only of his subjective frame of mind. Laystrom Manufacturing Co., 151 NLRB 1462, 1484, enforce- nent denied onthe facts, 359 Fe 24 799 (CoA. 7)3 Coca-Cola Bottling Works, Inc., 186 NLRB No. lie. -65- TKD-4 10-71 infer that his remarks to Parks indicated to the latter that he had some discharge suthority over unit employees, and that he was sdvising Parks as union steward beforehand about discipline conten- plated agcinst unit employees. [I also find from uncontradicted testimony of Parks that: About a week be‘ore the strike started Service Manager . wolfe ca.iled all mechanics and body repair men together and asked them “what are you trying to do, sabotage me?", complaining that shop employees were taking off from work without reporting in as absent, which msde it hard for him to get work out on schedule ss promised to customers. He commented that if that was the way the Union conducted oper- ations, he wanted no part of it, and was glad he had never worked in a union shop before. The men told him that if they did not get a contract they would “hit the bricks.” He replied thet if a strike occurred, "I could care less." 16/ I find from these facts that Respondent after September 9 con- tinued to recognize the Union es bargaining agent of unit enployees, and had reason to believe most of them would continue to adhere to it by striking if Respondent did not reach an agreement with it. (2) 411 but one or two of the unit employees began a strike on September 22nd sanctioned by the Union, and such concerted action after Respond- ent flatly denied recognition to the Union wes clear notice to Respondent that a majority of unit lo/ I nuke no finding thet Wolfe's remarks to the group indicated significant antiunion snimus on the part of Respondent, becuuse the occasion and tenor of his remarks clearly show he was irritated, if not actually angered, by unusuel abseuteeism among the unit employees; Parks admitted Wolfe had a legitimate compleint about employees going absent without leave or notice. -66) In any like or related manner inter- fering with, restraining, or coercing its employees in the exercise of any of the rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be effected by an agreement requiring membership in a labor organization as a 23/ In the event no exceptions are filed as pro- vided by Section 102.46 of the Rules and Reg- ulations of the National Labor Relations Board, the findings, corclusions, recommendations, and recoumended Order herein shall, es provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, snd all objections there- to shall be deemed waived for all purposes. afi TXD-410-71 condition of employment, as authorized in the proviso to Section 8(a)(3) of tne Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize, meet and bar- gain collectively with the sbove-named Union au the exclusive bargaining representetive of.all its em- ployees in the appropriate unit found above, with respect to rates of pay, wages, hours Of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (>) Upon request, cancel any chenges of benefits or working conditions of its employees in said unit made on September 4, 1970, or later, which may have resulted in financial or other detriment to said employees, and reimburse them for auy finan- cial losses they may have suffered thereby. j (c) Make whole all of its ewployees who went on strike on September’ 22, 1970, for any loss of earnings they may have suffered from the time of their unconditional offer to return to work to the date when Respondent offered them reinstatement to their former or substantially equivalent employment. (d) Preserve end, upon request, mike available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to facilitate a determination of the amounts due to employees under the terms of this Order. (e) Post at its place of business in Akron, Ohio, copies of the notice attached hereto as “Appen- dix." 24/ Copies of said notice, on forms to be 24/ In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading (Continued) oF2e TXD-410-71 provided by the Regional Director for Region 8, after being duly signed by Respondent's represen- tative, shall te posted by it immediately on re- ceipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from date of receipt of this Decision, what steps Respondent has taken to comply herewith. 25/ Dated at Washington, D. C. [s{ Bugene F. Frey Eugene F. Frey Trial Examiner eal] (Continued) "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall be changed to read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 25/ In the event that this recommended Order is adopted by the Board efter exceptions have been filed, notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. » ks APPENDIX TXD-4.10-71 NOTICE TO EMPLOYEES POSTED BY ORDER OF ‘IH NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT make unilateral changes in wages, rates of pay, hours of employment, or other terms and con- ditions of employment of our employees in the approp- riate unit described below, or fail or refuse in auy other manner to recognize, meet or bargain collectively with AUTO MECHANICS LOCAL 1363, DISTRICT 54. OF INTERNATIONAL ASSOCIATION OF MACHINISTS AND AMROGPACE WORKERS, AFL-CEO, as the exclusive bar- gaining representative of our employees in said unit, which is described as follows: All auto mechanics, body repairmen, painters, their apprentices and helpers, and Lubrication men, employed in our place of business in Akron, Ohio, excluding all office clerical employees, salesmen, parts department employees, garage men, and all guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exer- cise of any of the rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in the proviso to Section 8(a)(3) of the Act. WE WILL, upon request, recognize, meet ond bargain collectively with the above-named Union as the exclusive bargaining representative of all our employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standins in a signed ygreement. elhe TXD-410-71 WE WILL, upon request, cancel any changes of bene- fits or working conditions of our cuployees which we made on September 4, 1970, or later, and which may have resulted in financiel or other detriment — to our employees, and reimburse them for any fi- nancial losses they may have suffered thereby. WE WILL make whole all of our employees who went on strike on Septeniber 22, 1970, for any loss of earnings they may have suffered from the time of their unconditional offer to return to work to the date of our offers of reinstatement to their former or substantially equivalent employment. SPITZER AKRON, INC. (Employer ) Dated By (Representative ) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE This Notice must remain posted for 60 con- secutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice or com- pliance with its provisions, may be directed to the Board's Office, 1695 Federal Office Building, 1240 E. 9th Street, Cleveland, Ohio +4199 (Tel. No~ 216- 522-3715) o}$= --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0780%3A1. Public record. Not legal advice.