Almaden Volkswagen

National Labor Relations Board - Board Decisions

Oct 13, 1971

193 N.L.R.B. 706 (N.L.R.B. 1971)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Almaden Volkswagen and Automobile Salesmen's
Union, Local 1095 , Retail Clerks International
Association, AFL-CIO. Case 20-CA-6350
October 13, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 20, 1971, Trial Examiner Maurice Alexan-
dre issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief and the General
Counsel filed cross-exceptions. Respondent also
requested oral argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 brief, the
cross-exceptions, and the entire record in the case,
and hereby adopts the findings,2 conclusions,3 and
recommendations of the Trial Examiner.
Contrary to Respondent's contention that a bar-
gaining order is inappropriate in this case, we find, in
agreement with the Trial Examiner, that Respon-
dent's conduct warrants such a remedy. The unlawful
acts, committed by two of Respondent's highest
management representatives, began immediately
after the Union's demand for recognition and reached
each employee in the bargaining unit. Those employ-
ees not specifically questioned regarding their union
sympathies were nonetheless present when Iglebak
solicited and encouraged the resignations. They were
all aware of Garbez' role in contacting the Union, and
his discharge apparently weighed heavily in their
deciding that "they had made a mistake." Further,
they were all affected by the increased commission
rates adopted as an inducement to prevent further
organizational efforts. Such a combined application
of both illegal stick and illegal carrot is not likely to be
forgotten by any employee in the unit.
In view of the entire course of conduct of Respon-
dent and the obvious widespread and continuing
effect that conduct had on the employees, we have no
doubt that the traditional remedies will neither erase
the effects nor insure that such conduct will not recur.
On balance, we find that the sentiments of the unit
employees are more accurately expressed by the
authorization cards than could be expressed by an
election. Therefore, we adopt the Trial Examiner's
conclusions in this regard.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent Almaden Volkswagen, San Jose, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
Respondent 's request for oral argument is hereby denied In our
opinion , the record , including Respondent 's exceptions and supporting
brief, adequately presents the issues and positions of the parties
2 For the reasons set forth in his separate opinion in United Packing
Company of Iowa, Inc, 187 NLRB No 132, Chairman Miller concurs in the
issuance of a bargaining order but only on the basis of Respondent's
numerous violations of Section 8(a)(l) and (3), referred to in the final
paragraph of this opinion
The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner' s resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in San Jose, California, on April 20 and 21, 1971, on a
complaint issued on January 5, 1971,1 alleging that
Respondent had violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. In its answer,
Respondent denied the commission of the unfair labor
practices alleged. The principal issues are (1) whether or not
Respondent unlawfully interfered with , restrained, and
coerced its employees; (2) whether or not it unlawfully
discharged Garbez; and (3) whether or not a bargaining
order is warranted.
Upon the entire record,2 my observation of the witnesses,
and the briefs filed by the parties , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent has admitted the following allegations in
paragraph II of the complaint:
(a) At all times material herein , Respondent, a
California corporation with a place of business in San
Based on a charge filed on September 22, 1970, by Automobile
Salesmen's Union, Local 1095, Retail Clerks International Association,
AFL-CIO (hereafter called the Union)
2 The General Counsel's unopposed motion to correct the transcript is
granted
193 NLRB No. 110
ALMADEN VOLKSWAGEN 707
Jose, California, has been engaged in the retail sales of
automobiles.
(b) During the past year, in the course and conduct of
its business operations, Respondent received gross
revenues in excess of $500,000.
(c) During the past year, in the course and conduct of
its business operations, Respondent purchased and
received at its San Jose, California, facilities, goods and
products valued in excess of $50,000 from suppliers,
which in turn purchased and received those goods and
products directly from sources located outside the State
of California.
I find the facts to be as admitted, and that Respondent is,
and at all times material herein has been, an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent has admitted, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
IIi. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent opened its business as a Volkswagen dealer
on September 13, 1969. In late August or early September
1970,3 Respondent's automobile salesmen began discussing
the possibility of unionizing. At a meeting with the Union
on September 9, seven of Respondent's nine salesmen
signed union membership application cards. On September
16, the Union requested recognition. During that day,
officials of Respondent spoke to the salesmen, to whom
they directed questions and made statements which, the
General Counsel contends, were unlawful. On September
17, Respondent informed one of the salesmen of his
discharge which, the General Counsel contends, was
discriminatory. At a sales meeting on September 19, the
salesmen who had executed Union application cards signed
resignation letters which, the General Counsel contends,
were unlawfully solicited and procured by Respondent by
its prior interrogation and threats, by tentatively promising
to increase employee sales commissions and by assisting in
the preparation and mailing of resignations to the Union,
and by conditioning the reinstatement of the discharged
employee upon the execution of the resignations. A week or
10 days later, Respondent announced an increase in
salesmen's commissions which, the General Counsel
contends, was unlawfully motivated. Respondent has
admittedly refused to comply with the Union's bargaining
request and informed the Union on December 22 that it
intended to avail itself of the Board's election procedures.
The General Counsel contends that the refusal to bargain
was unlawful and that a bargaining order is warranted.
B. Interference, Coercion, and Restraint
1. Interrogation and threats
On the morning of September 16, Union Secretary-
Treasurer Fulco and another Union representative went to
Respondent's premises and presented to Berglund, Respon-
dent's new car sales manager , a letter advising that the
Union represented a majority of Respondent' s salesmen,
requesting recognition, and requesting a bargaining
meeting on September 21. After a few minutes, they were
joined by Iglebak, Respondent's vice president and general
manager, to whom Berglund gave the letter. In response to
Fulco's request for a meeting, Iglebak stated that he had
just returned from a vacation in Europe and that he would
notify the Union when he would be available. Soon after
the Union representatives left, Iglebak announced over the
loudspeaker system that he wanted all salesmen on duty to
come to the conference room. Employees Owen, Johnstone,
and Davis reported as instructed, and found Iglebak,
Berglund, and possibly the used car manager, Pisenti, in the
room. It is undisputed that Igleback appeared agitated and
asked each of the three salesmen whether or not he had
joined the Union, that Johnstone and Owen answered in
the negative but Davis replied that he had joined, that
Iglebak asked Davis how many other salesmen had joined,
and that Davis responded that all but Johnstone and Owen
had joined. Johnstone and Davis testified credibly that
Iglebak asked whether they realized that if the men joined
the Union, they might work fewer hours with a resulting
decrease in earnings. Iglebak did not contradict their
testimony. He merely testified that he might have referred
to working hours, but that he could not recall what he said.4
At about 3 p.m. that day, Berglund asked Employee
Garbez whether he had joined the Union, and the latter
stated that he had. Shortly thereafter, Iglebak called
Employee Sitzes to his office and, in the presence of
Berglund, asked Sitzes whether he had signed a Union
membership application. Sitzes answered that he had.
Iglebak then asked him whether he knew who was
responsible for "calling the Union in." When Sitzes replied
that he did not, Iglebak asked whether he could find out.
About a half hour later, Iglebak again called Sitzes to his
office, and again Berglund was present . Sitzes had made
inquiries and reported to them that Garbez was the one
responsible for calling the Union. As discussed more fully
below, Respondent discharged Garbez the following day.
The General Counsel contends that Respondent unlaw-
fully interrogated and threatened its employees. Respon-
dent contends that it is lawful to question employees in a
proper manner to ascertain union strength, that its
interrogation was not coercive, and that in any event the
interrogation was minimal. It further argues that no threats
were made, that its representatives merely engaged in
"discussions" with employees regarding a reduction in
working time, that at most Iglebak "may" have made a
comment "to the effect that gross income could be less than
if nonunion", and that an employer has the right to remind
9 All dates referred to hereafter relate to 1970 unless otherwise stated merely testified that "it could very, very possibly be" that Iglebak
4 Contrary to the General Counsel's assertion , the record does not mentioned such Sunday closing . Davis testified that neither Iglebak nor
establish a statement by Iglebak that Respondent might abandon its Berglund said anything about Sunday work
practice and stay closed on Sundays if the men unionized Johnstone
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the economic benefits which they enjoy. I
agree with the General Counsel.
Respondent 's interrogation , which was hardly minimal,
was unlawful because i t was not accompanied by the
safeguards set forth in Struksnes Construction Co, 165
NLRB 1062, and because it was accompanied by Iglebak's
unlawful statement to employees that unionization might
result in a reduction in working time with a consequent
decrease in income . That statement was not merely a
reminder of the benefits they enjoyed, nor was it a
prediction of "demonstrably probable consequences be-
yond [Respondent 's] control ". N.L.R.B v. Gissel Packing
Co, 395 U.S. 575. There is nothing in the record to show
that a reduction in work time was an inevitable conse-
quence of unionization . Rather, the statement constituted a
warning that Respondent might exercise its power to
enforce economic reprisals against the employees if they
unionized . Iglebak 's statement thus constituted an unlawful
threat.
I find that said interrogation and threat violated Section
8(a)(1) of the Act.
2. The resignations from the Union
On September 17, Respondent discharged Garbez In the
late afternoon on September 18, several of Respondent's
salesmen, including Sitzes, Owens, and Kessler, went to a
showing of 1971 Volkswagen models in San Francisco.
During conversations after the showing , some of the
employees stated to each other that they were no longer
interested in the Union. Garbez, who had been at the
showing, went to Respondent ' s premises , told Berglund
that there had been talk by the salesmen about the regular
sales meeting to be held on the following day, Saturday,
September 19, asked whether he should be present , and was
told by Berglund to be there between 9 and 9:30 a in. Later
that night, Sitzes and Owens each telephoned Iglebak at his
home , told him that some, or most , of the new car salesmen
had changed their minds about the Union, and invited him
to be present at the sales meeting to be held the next
morning . Iglebak agreed to be there 5
The sales meeting on September 19 began about 8:30
a.m., the usual starting hour In addition to Iglebak, those
present included four new car salesmen, Davis, Sitzes,
Owen , Johnstone, Kessler, and possibly the used car
manager , Pisent ► . 6 Following the completion of the usual
business , there was a pause. Sitzes then brought up the
subject of commissions . Iglebak testified that he replied as
follows:
A lot of things were said . What I said was, "Well, you
got yourselves into this thing and you apparently
wanted to go that route, so it is voluntarily up to you
what you want to do. The one way I know to get out of
something is to resign from the club."
Then I said , "This is up to you. You didn' t need me
when I was gone to make your decision so I don't think
you need me to help you make this one."
He further testified that he left the room and that when he
returned the employees had decided to withdraw from the
Union. One of the supervisors then went for paper. When
he returned, the employees asked how the resignations
should be worded, and a supervisor made suggestions.
Davis, Kessler, and Sitzes wrote out and signed resigna-
tions . Kessler testified that he gave his resignation to
Iglebak . Sitzes testified that he gave his to either Iglebak or
Berglund. Davis testified that he left his on the conference
table . Iglebak first testified that he did not see the men sign
and did not receive their resignations during the meeting,
that Sitzes showed them to him later that day, but that the
latter did not leave them . Later, he admitted that he did see
them sign , and that one or two resignations were handed to
him during the meeting . Sitzes testified that none of the
employees had the resignations when the meeting ended.
The men then discussed certain commission increases
which they desired. When the discussion ended, Iglebak
stated that he "didn't see much wrong" with the proposed
commissions , but that he would let the men know whether
or not he would approve the increases . The discussion then
turned to Garbez. The employees expressed their desire
that Garbez be returned to work. Iglebak stated that he had
no objection , and Kessler left the room to fetch Garbez.7
On their way to the conference room , Kessler told Garbez
that the employees had resigned from the Union and that
Iglebak would take Garbez back if he resigned . When they
arrived , Iglebak told Garbez that the employees wanted
him to come back to work , that they had resigned from the
Union, that they had discussed a new commission schedule,
and that it would be necessary for Garbez to resign from
the Union before Iglebak could talk to him. Garbez
thereupon wrote out and signed a resignation and gave it to
Iglebak . The latter informed him that he intended to
consider certain changes in commiss ions proposed by the
employees and then told him to go back to work. The four
resignations were received in the mail by the Union in a
single envelope without an accompanying letter on or about
September 22. In response to a question during his direct
examination , Iglebak testified:
Q. Thereafter did you cause these particular, you,
yourself , or did you cause anyone else to mail these
particular documents to the union?
A. No, Mr. Sitzes brought them into my office and,
as far as I know , until they showed up here now in an
envelope, I looked at one or two of them and I did not
put them in an envelope.
The General Counsel contends that Respondent violated
Section 8 (a)(1) by giving assistance to the employees at the
September 19 meeting with respect to the preparation and
mailing of their resignations from the Union, and by
bartering its tentative promise of commission increases and
the reinstatement of Garbez for the resignations . Respon-
dent argues that its conduct at the meeting was not
unlawful because the employees had decided prior to the
meeting to resign from the Union, that it was the employees
5 Iglebak testified that he normally did not attend the meetings used car salesmen had not been invited that morning
6 The used car salesmen customarily attended the sales meetings In Garbez had arrived at Respondent 's premises about 9 a in
response to an inquiry by Kessler , Iglebak, or Berglund replied that the
ALMADEN VOLKSWAGEN
who sought to bargain directly with Iglebak regarding the
commission increases and the reinstatement of Garbez, and
that it was proper for Iglebak to inform them that he could
not talk to them so long as they were represented by the
Union.
The record establishes , and I find, that Iglebak did not
confine himself to a refusal to bargain with the employees
because they were represented by the Union, but that he
affirmatively suggested that they resign from the Union. I
further find that he made his suggestion before they
decided to resign . However , it is immaterial whether the
suggestion came before or after their decision . If before, it
constituted illegal solicitation of resignations . If after, it
constituted illegal solicitation to adhere to and implement
their decision. I also find that by furnishing the paper and
suggestions for wording the resignations , Respondent
unlawfully assisted in their preparation.8
Contrary to the General Counsel 's contention , I find that
the record fails to establish a tentative promise by Iglebak
to increase commissions According to the testimony, the
discussion relating to commissions occurred after the
resignations were signed , and Iglebak merely stated that he
would let the men know what his decision was. On the other
hand , I find that Respondent did unlawfully condition the
reinstatement of Garbez upon his execution of a resigna-
tion.
I find that by soliciting and assisting the employees to
resign from the Union , or to adhere to and implement a
decision to resign , Respondent violated Section 8 (a)(1) of
the Act. I further find that by conditioning the reinstate-
ment of Garbez upon his resignation from the Union,
Respondent violated Section 8(a)(1) and (3) of the Act.
3. The increase in commissions
Iglebak testified that about a week or 10 days after the
meeting on September 19, he issued a memorandum
relating to commissions payable to the salesmen. The
memorandum established increases in the commissions on
the sales of a number of car models. It also provided for
increases in the commissions payable upon financing and
insurance contracts sold to automobile purchasers. Such
increases were the same as those requested by the
employees on September 19.
The General Counsel contends that the increases were
unlawfully motivated by Respondent 's desire to induce the
employees to reject the Union, Respondent asserts that
commission changes are normally discussed and estab-
lished when new car models are introduced , that the
commission increases which it adopted for car sales applied
only to the 1971 models , that its new commissions were "in
accordance with the rate paid by other dealers" in the area,
and that their adoption was not related to Union activity. I
agree with the General Counsel.
The record contains testimony that the employees had
discussed commission increases on car sales with Respon-
dent prior to the Union activity, that the customary
occasion for a change in such commissions was the time
8 Although it seems likely that Respondent mailed the resignations to
the Union , it is superfluous and hence unnecessary to resolve that issue in
view of the above findings relating to assistance
v I have no confidence in Iglebak'~ testimony to that effect The other
709
when new models were introduced , and that other
Volkswagen dealers in the area raised the commissions
payable on the sale of new car models at about the same
time as Respondent . Assuming, without deciding, that
Respondent 's increases applied only to the 1971 models,9 I
nevertheless find that the increases were motivated , at least
in part , by unlawful reasons. As already found , Respondent
had succeeded, through unlawful means, in obtaining the
employees ' resignations from the Union . It was obvious
that the employees resigned in the belief and expectation
that Respondent would increase their commissions. If
Respondent had then refused to increase the commissions,
the execution of new Union applications would have been
almost inevitable . In the circumstances , it is reasonable to
conclude, and I find , that Respondent sought to prevent a
resurgence of the employees' desire to unionize by
satisfying their expectations regarding commission increas-
es. In addition , the record shows that the Union had filed a
petition for certification on September 18 (Case
30-RC-9581). I find that by satisfying such expectations,
Respondent also sought to insure that the employees would
vote against unionization if, despite the resignations from
the Union and the unfair labor practice charge filed on
September 22, a Board election should be held.
It may be that in increasing the commissions on car sales,
Respondent was motivated in part by similar increases
adopted by competitors . However , it is clear that Respon-
dent's increases in the commissions payable on sales of
financing contracts were in no way motivated by competi-
tors' increases . i° I find that, whatever other reason
Respondent may have had for increasing commissions, at
least one reason was its desire to prevent unionization. I
further find that the commission increases were
"reasonably calculated to have that effect." N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405. I accordingly find that
the commission increases violated Section 8(a)(1) of the
Act.
C. The Discharge of Garbez
As noted, Respondent 's salesmen began discussing
possible unionization in late August or early September.
They selected Garbez to pursue the matter, and he
telephoned the Union's secretary -treasurer , Fulco. On
September 9, Fulco and other Union representatives met
with seven of Respondent 's employees , and the employees
signed Union application cards. Following Respondent's
interrogation and threats on September 16, Employee Sitzes
informed Iglebak and Berglund that Garbez was responsi-
ble for the unionization of the employees. On September
17, Iglebak called Garbez to his office and, in the presence
of Berglund, informed Garbez that he was discharged.
Iglebak told Garbez that this work performance was good;
that according to information received from his automobile
distnbutor , there would be a decrease in the number of cars
delivered to Respondent during "the next month or so";
that Respondent would thus have insufficient merchandise
evidence relating to the models affected by the commission increases is
confusing and insufficient to permit resolution of the issue
10 Iglebak admitted that he did not know what commission his
competitors were paying on sales of financing contracts
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to warrant six new car salesmen; and that he had selected
Garbez for discharge because he had the least seniority.
The General Counsel contends that the discharge was
motivated by a desire to punish Garbez for his union
activities and constituted a tactic in Respondent's cam-
paign to undermine the Union's majority. Respondent's
position is that the discharge was dictated solely by
economic considerations. I agree with the General Counsel.
Iglebak testified that because of a decrease in sales volume
during August and the first half of September 1970, and
because of information that there would be a shortage in
the shipment of new cars "for the remainder of the year",
he decided on September 15 that fairness to his salesmen
required that the sales force be reduced from six to five
men; that it is company policy to select employees for
layoff based on seniority; that on the afternoon of
September 17 he asked Berglund which salesman had the
least seniority; and that when the latter advised that it was
Garbez, he informed the latter of his discharge. I am not
persuaded by this testimony for several reasons. In view of
his self-contradictions and evasiveness, as well as his
demeanor, I find that Iglebak was not a credible witness. In
addition, his testimony regarding business conditions
receive little support from the sales data in the record.
Although the gross sales for August and September were
lower than those for some months during 1969 and 1970,
they exceeded gross sales for other months.
Respondent's argument regarding the anticipated short-
age of cars is similarly unconvincing. Garbez testified that
there was no shortage of cars in October and that, in fact,
October was the best month in Respondent's sales history.
Nevertheless, Respondent furnished no figures showing
whether sales that month reduced its inventory. The only
corroboration of Iglebak consists of testimony by Keller.
But he stated that the shortage began in December, i.e.,
almost 3 months after the discharge of Garbez. The record
thus casts doubt upon the accuracy of Iglebak's assertions
concerning the predictions which he received. With regard
to the matter of seniority, it is true that Garbez had the least
seniority. However, Respondent's manual setting forth its
policy relative to employment makes no mention of
seniority. Although the manual states that during his first
90 days an employee is in a probationary period, it does not
provide that probationers shall be laid off before others. On
the contrary, the manual states that Respondent reserves
the right to terminate "any" employee based on its needs,
the employee's ability to perform and to get along with
others, and his integrity. The record also shows that
Respondent discharged Employee Denton as well as
Garbez on September 17.11 In view of Iglebak's testimony
that he decided that business conditions warranted the
discharge of one salesman, it would appear that the
discharge of Denton would have solved the problem.
Respondent has failed to explain why it was also necessary
to discharge Garbez, particularly since he admittedly had a
good sales record.
On the other hand, it is undisputed that Iglebak was
11 Union Secretary-Treasurer Fulco testified without contradiction that
Denton told him about the discharge, that Fulco complained thereof to
Assmar, Respondent's secretary-treasurer, and that the latter replied that
Denton had a bad driving record and could not be insured I regard
informed on September 16 that Garbez was responsible for
bringing in the Union, and that he discharged him the next
day. Moreover, the evidence shows that the other salesmen
wanted Respondent to take back Garbez. Nevertheless,
despite Iglebak's testimony that he discharged Garbez
primarily to protect the earnings of the other salesmen, he
permitted Garbez to go back to work only after the latter,
as well as the others, had resigned from the Union.
Considering Respondent's knowledge of the role of Garbez
in organizing the men, the timing of his discharge, his
return to work only after he and the other men had resigned
from the Union, the absence of a convincing explanation
for his discharge, and Respondent's other acts of interfer-
ence, restraint, and coercion, I find that the discharge was
unlawfully motivated and violated Section 8(a)(3) and (1)
of the Act.
D. The Refusal To Bargain
As noted above, on September 16, the Union requested
Respondent to bargain, Iglebak replied that he had just
returned from Europe and that he would notify the Union
when he would be available, and immediately thereafter he
called the salesmen to his office and interrogated and
threatened them. By letter dated September 17 to the
Union, Iglebak suggested a meeting at 10 a.m. on
September 28. Fulco went to Respondent's premises at the
appointed time, but Iglebak could not be located. On the
same day, Iglebak sent a letter to the Union stating that he
had assumed that the meeting was canceled inasmuch as
the Union had filed a petition for certification on
September 18, i.e., after his letter suggesting the meeting.
The letter went on to suggest that the Union call him if it
wanted a meeting despite its petition. Thereafter, Fulco
attempted to reach Iglebak by telephone a number of times
during October and November, but each time he was told
by Respondent's operator that Iglebak was not in.12
Although he left word with the operator that he had called,
Iglebak did not return his calls. Iglebak testified that he
received at least one message from the operator, but that he
did not talk to Union representatives after September 16.
On December 17, Fulco attempted to reach Iglebak two or
three times without success. During one call, the operator
informed him that Iglebak was talking on another line.
After he had waited about five minutes, the operator asked
his name. When Fulco identified himself, she stated that
Iglebak was not in the building. On December 21, the
Union's counsel wired Respondent that a Union represent-
ative would appear at Respondent's premises on December
23 to bargain for a contract. On December 22, Iglebak sent
the Union a wire stating that he was unable to meet at the
designated time, that the matter was before the Board, and
that Respondent intended to avail itself of the election
procedures.
At the hearing, the General Counsel stated without
contradiction that the Union withdrew its petition for
certification on January 18, 1971. Counsel for Respondent
stated that the latter had recently filed a petition for
Assmar's statement to Fulco as an admission by Respondent that Denton
had been discharged
12 Fulco had not identified himself before receiving such information
ALMADEN VOLKSWAGEN 711
certification. In his brief, the General Counsel stated that
Respondent's petition was filed after the hearing began on
April 20, 1971, and that the Regional Director subsequently
dismissed the petition on the ground that a question
concerning representation could not appropriately be
raised in view of the outstanding complaint.13
It is undisputed that the Union, on September 16,
requested Respondent to bargain. In its brief Respondent
expressly admits that it refused to bargain with the Union
but asserts that the Union did not represent a majority and
that the refusal to bargain is justified until the Union
establishes its majority in a secret election.
1. At the hearing, Respondent amended its answer so as
to admit, and I find, that the following constitutes a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All new and used car salesmen employed by Respon-
dent at its San Jose, California, facility, excluding
guards and supervisors as defined in the Act.
The parties stipulated that as of September 16 the unit
consisted of the following nine employees. (1) New Car
Salesmen , Tom Garbez, Herbert Davis, Fred Kessler, Kern
Gene Sitzes, Nevell Johnstone, and William Owen; and (2)
Used Car Salesmen, Hugh Curley, Joseph Polcynski, and
Tom Denton
2. It is undisputed that seven of the above employees,
i.e., all but Johnstone and Owen, signed union membership
application cards on September 9. However, Respondent
contends that the cards cannot be used to establish a
majority because the Union failed to follow its constitution-
al provisions governing approval of membership applica-
tions, because it failed to fulfill the requirements of contract
law by neither executing nor acting on the applications, and
because it failed to follow its constitutional provisions in
fixing the amount of the initiation fee payable by the card
signers
The evidence shows the following. The seven card signers
attended the Union meeting on September 9. At the
meeting , Union Secretary-Treasurer Fulco explained the
benefits of representation by the Union, distributed union
membership application cards together with information
sheets, and read the following portion of the application
cards:
I hereby make application for membership in the
RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION and affirm that the above statements are true,
and I agree that all moneys paid by me shall be forfeited
and my membership declared void if they are not true. I
authorize the RETAIL CLERKS INTERNATIONAL
ASSOCIATION to represent me for the purposes of
collective bargaining and handling of grievances either
directly or through such local union as it may duly
designate.
Fulco requested those present to fill out and sign the
information sheets but merely to sign the application cards,
stating that it was unnecessary to fill out the cards since the
information placed on the information sheets would be
13 Attached to the General Counsel's brief was a copy of the Regional
Director's letter of May 12, 1971, dismissing the petition, which bore Case
20-RM-1388
14 Union representative Silva testified that the usual initiation fee is
transferred to the cards. He further stated that by signing
the documents, the employees were asking the Union "to
represent them in negotiations and bargaining." At the
meeting, six of the employees filled out and signed
information sheets and signed application cards, and the
seventh filled out and signed both documents. In addition,
by September 14, each of the seven paid an initiation fee of
$25 and 1 month's dues of $10.14
Contrary to Respondent's contention, the applicable test
in determining the validity of the cards is not whether
membership was perfected or validly obtained. The test is
whether the card signers intended to designate the Union as
their collective-bargaining representative. Tower Enterpris-
es, Inc., 182 NLRB No. 56 (TXD fn. 7). Applying that test
here, I find that the seven card signers intended to and did
designate the Union as their representative. The cards on
their face were not only applications for membership but
also unambiguous authorizations to the Union to represent
the signers for purposes of collective bargaining. A Union
representative clearly explained to the signers that by
executing the cards and accompanying information sheets,
they authorized the Union to represent them, and there is
no evidence or claim of misrepresentation or other defect
which would invalidate the cards. I accordingly find that
the Union represented a majority of the unit employees
when it requested recognition on September 16.
3. As found above, Respondent violated Section 8(a)(1)
and (3) of the Act by interrogating and threatening
employees, by its solicitation and assistance in connection
with the resignations from the Union, by discharging
Garbez, by conditioning his reinstatement upon his
resignation from the Union, and by increasing commis-
sions. I find that by engaging in these violations and by
refusing to bargain with the Union, which represented a
majority of the unit employees, Respondent violated
Section 8(a)(5) and (1) of the Act.15
I further find that in view of the serious nature of
Respondent's unlawful conduct the possibility of erasing its
effects and of insuring a fair election is slight; and that on
balance, the rights of the unit employees and the purposes
of the Act would be better effectuated by reliance on the
employee sentiments expressed in authorization cards
rather than in the results of an election. Accordingly, I find
that a bargaining order against Respondent is warranted.16
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and
coercing its employees, as found herein, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By unlawfully discharging Garbez, and by condition-
ing his reinstatement upon his resignation from the Union,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. All new and used car salesmen employed by
Respondent at its San Jose, California, facility, excluding
guards and supervisors as defined in the Act, constitute a
$150, but that during organization drives, it reduced this to $25 or $50
15 The Dalf Corp , 188 Ni,RB No 57, Gibson Products Corp, 185 NLRB
No 74; Mink-Dayton, Inc, 181 NLRB No 40.
16 Ibid
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit appropriate for the purposes of collective bargaining
within the meaning of Section (9)(b) of the Act
4. At all times on and after September 16, 1970, the
Union has represented a majority and has been the
exclusive bargaining representative, of the employees in the
above unit.
5. By refusing to bargain with the Union on and after
September 16, 1970, as found herein, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it cease and desist
therefrom, and that it take certain affirmative action which
I find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
More specifically, I recommend that a bargaining order
be issued against Respondent for the reasons discussed
above. Since the record does not disclose whether or not
Garbez was fully reinstated, I also recommend that
Respondent offer Garbez immediate and full reinstatement
to the position which he held prior to his unlawful
discharge, or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges. I
further recommend that Respondent make Garbez whole
for any loss of earnings he may have suffered by reason of
the discrimination against him by paying to him a sum of
money, with interest, equal to that which he would have
been paid by Respondent absent such discrimination, less
net earnings during said period. The loss of earnings shall
be computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 17
ORDER
Respondent , Almaden Volkswagen , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating and threatening employees;
(b) Unlawfully soliciting and assisting employees to
resign from the Union or to implement a decision to
withdraw;
(c) Unlawfully discharging employees , conditioning their
reinstatement upon their resignation from membership in a
union , or otherwise discriminating in regard to any term or
condition of their employment;
(d) Unlawfully increasing commissions or otherwise
improving employee benefits;
(e) Unlawfully refusing to bargain collectively with
Automobile Salesmen's Union , Local 1095, Retail Clerks
International Association , AFL-CIO, as the exclusive
All new and used car salesmen employed by Respon-
dent at its San Jose, California, facility, excluding
guards and supervisors as defined in the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Thomas M. Garbez immediate and full
reinstatement to his former or a substantially equivalent
position and make him whole for any loss of earnings he
may have suffered by reason of Respondent's discrimina-
tion against him, in the manner set forth in the section
herein entitled "The Remedy";
(b) Preserve and make available to the Board or its agents
on request, for examination and copying, all payroll records
and reports and all other records necessary to analyze the
amount of backpay due and the right of reinstatement
under the terms of this Recommended Order;
(c) Upon request, bargain collectively with Automobile
Salesmen's Union, Local 1095, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of
the employees in the unit found herein to be appropriate
and embody in a signed contract any understanding
reached;
(d) Post at its facility in San Jose, California, copies of the
attached notice marked "Appendix." 18 Copies of said
notice on forms provided by the Regional Director for
Region 20, after being duly signed by a representative of
the Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith.19
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order , and all objections thereto
shall be deemed waived for all purposes
is 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 "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 "
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps have been taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees these
nghts:
representative of the employees in the following appropri- To engage in self-organization
ate unit : To form, join or help unions
ALMADEN VOLKSWAGEN 713
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection, and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully discharge employees or
otherwise discriminate against them because of their
union activities.
WE WILL NOT unlawfully question or threaten our
employees.
WE WILL NOT unlawfully solicit or help our
employees to resign from membership in a union.
WE WILL NOT unlawfully increase commissions or
otherwise improve employee benefits in order to induce
our employees not to unionize.
WE WILL OFFER to reinstate Thomas M. Garbez to his
old job and pay him for all the earnings he lost because
of his discharge.
WE WILL, upon request, bargain collectively with
Automobile Salesmen 's Union, Local 1095, Retail
Clerks International Association, AFL-CIO, as the
exclusive representative of all our employees in the
following unit with respect to rates of pay, wages, hours
of work, and other terms and conditions of employ-
ment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All new and used car salesmen employed by us at
our San Jose, California, facility, excluding guards
and supervisors as defined in the Act.
Dated By
ALMADEN VOLKSWAGEN
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 556-3197.