On petition for review of an order of the National Labor Relations Board modifying the decision and order of the administrative law judge and dismissing the complaint filed by petitioner for alleged violation of Section 8(b)(7)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(7)(A). Petition to review granted; order set aside; and case remanded for entry of appropriate order.
Before Friendly and Timbers, Circuit Judges, and Hoffman, Senior District Judge.*fn*
Petitioner, Don Davis Pontiac, Inc., seeks to review and set aside an order of the National Labor Relations Board (the Board), issued November 30, 1977, 233 NLRB No. 121, dismissing an unfair labor practice complaint filed against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local No. 55 (UAW). The complaint, filed June 21, 1976, charged that the UAW had picketed petitioner's place of business in order to achieve recognition as the bargaining agent in alleged violation of § 8(b)(7)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(7)(A).*fn1 The administrative law judge (ALJ) found that the UAW had violated the provisions of the Act and issued a cease and desist order. The Board, sitting as a panel of three members, reversed, thus dismissing the complaint. We find the record wholly fails to support the Board's decision and order. Accordingly, we grant the petition to review, set aside the Board's order dismissing the complaint, and remand to the Board for the entry of an appropriate order consistent with this opinion.
Petitioner was an automobile dealership located on Bailey Avenue, Buffalo, New York, until June 11, 1976 and, at this location, its service employees were represented by UAW. Petitioner's collective bargaining agreement with UAW expired on March 20, 1976, but was renewed on a day-to-day basis thereafter until May 19, 1976*fn2 when, because petitioner's final offer was rejected, the UAW commenced picketing the Bailey Avenue location with signs bearing the legends: "UAW ON STRIKE FOR JUSTICE" and "UAW ON STRIKE FOR EQUITY." Petitioner makes no complaint as to this picketing. A strike followed at midnight, May 19, 1976.
For some months,*fn3 at least since November 7, 1975, petitioner had contemplated the sale of the Bailey Avenue dealership and the acquisition of another which was acceptable to the Pontiac Motor Division of General Motors Corporation. In April, 1976 petitioner was advised by Pontiac that the Al Ives Pontiac dealership in Tonawanda, New York, would probably be available and that petitioner would be considered as a candidate for the purchase of that dealership. Subsequent negotiations between petitioner and Ives were substantially completed on May 20, 1976. On the day prior thereto, May 19, 1976, petitioner notified the UAW that it was "contemplating a decision to terminate our Bailey Avenue shop operations for economic reasons." As a part and parcel of the purchase agreement with Ives, and as a condition precedent imposed at the insistence of Ives, petitioner was required to retain all of the Ives employees, including the unit represented by District 76, International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), and to assume the IAM contract in its entirety.*fn4 Likewise, petitioner agreed to purchase the Ives inventory, its equipment, fixed assets and goodwill, along with assuming all of the Ives liabilities. The IAM had been certified as the exclusive bargaining representative of all service employees at the Ives place of business on October 14, 1975 and, at the time of petitioner's purchase, a collective bargaining agreement, effective February 4, 1976 continuing until February 4, 1979, was outstanding.
In response to petitioner's letter of May 19, the UAW advised that there was no purpose in meeting to discuss the situation as "the closing or termination of your shop operations is solely your decision to make," but the UAW nevertheless reserved the right to negotiate the effects of that decision.
On June 3, 1976, petitioner notified the UAW that it had decided to terminate the business effective June 11, 1976,*fn5 but invited the UAW "to meet and discuss with you the effects of our decision." On June 14, the purchase from Ives was consummated and, on the following day June 15, 1976 petitioner commenced its operations at the Tonawanda location.*fn6
The next day, June 16, 1976, pursuant to prior telephone conversations, petitioner's vice-president and its attorney went to the offices of the UAW and met with representatives of the Local and International. The UAW was notified that operations had been terminated at the Bailey Avenue location, that petitioner had acquired the Ives operations on Niagara Falls Boulevard in Tonawanda, and that an agreement had been signed with IAM pursuant to petitioner's obligation to assume under the buy-sell agreement with Ives. Additionally, general questions were answered regarding "the nature of the closing of Bailey Avenue operations" and whether the UAW was going to "picket the Niagara Falls Boulevard operation." Also, the UAW requested petitioner to hire its members on a preferential basis, in response to which petitioner advised that they would be considered on a non-discriminatory basis without preferential treatment as, in the opinion of petitioner, to do otherwise would constitute an unfair labor practice.
Picketing, with the same legends on the signs, continued at the Bailey Avenue location until June 26, although petitioner had closed its operations at the end of the day on June 11. On June 21, 1976, the UAW commenced picketing the Tonawanda site, again with the same legends on the signs. On June 28 the UAW made an offer to return to work at the Tonawanda facility.*fn7 No picketing took place on June 29, but it was resumed on June 30 with picket signs carrying the legend: LOCAL 55 UAW PROTESTS THE REFUSAL OF DAVIS PONTIAC, INC. TO REEMPLOY ITS MEMBERS.
Picketing continued until July 19 when a United States district court issued a preliminary injunction against UAW prohibiting the picketing at the Tonawanda premises.
Petitioner's original charge against the UAW was filed June 21, 1976.*fn8 The Regional Director, by letters bearing the same date, notified the UAW of the pendency of the charge. It is obvious that the UAW had notice of the pending charge filed by petitioner at the time the UAW suggested that the Bailey Avenue employees would return to work on June 29, and changed the legend on its signs on June 30, 1976. On June 25 the Regional Director filed his formal complaint and notice of hearing. The hearing was actually conducted on July 12, 1976.
On July 6, 1976, the UAW filed a petition for certification and an unfair labor practice charge against petitioner.*fn9 The charge against the petitioner was actually signed by the International Representative on June 28, 1976, but not filed until the date noted above. By separate letters to the UAW's counsel dated July 9, 1976, the Acting Regional Director dismissed the petition ...