Bill Pierre Ford, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1970

181 N.L.R.B. 929 (N.L.R.B. 1970)

BILL PIERRE FORD , INC. 929
Bill Pierre Ford , Inc. and Automobile Drivers &
Demonstrators Local Union No. 882 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America,
Independent . Case 19-CA-4361
April 3, 1970
1969, a hearing was held in the above-entitled matter in
Seattle, Washington, at which all parties appeared and
participated The complaint, issued by the Regional
Director for Region 19 of the National Labor Relations
Board on May 29, 1969, is based on a charge filed by the
Union on April 21, 1969, and alleges violations of
Sections 8(a)(1) and (5) of the National Labor Relations
Act. Upon the entire record in this case, including my
observation of the witnesses and after due consideration of
the post hearing briefs, I make the following:
DECISION AND ORDER
FINDINGS OF FACT
On September 25, 1969, Trial Examiner George
H. O'Brien issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions,
with supporting briefs, to the Trial Examiner's
Decision Respondent filed an answering brief.
The National Labor Relations Board has
reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and answer, the briefs, and the entire
record in this case, and hereby adopts the findings,'
conclusions,' and recommendations of the Trial
Examiner.
ORDER
1. THE BUSINESS OF THE RESPONDENT
Bill Pierre Ford, Inc , herein called Respondent, is a
Washington corporation which operates a showroom and
garage in Seattle, Washington, where it is engaged in the
sale and service of new and used automobiles During the
year preceding the issuance of the complaint, a
representative period, Respondent in the course and
conduct of its business sold and distributed products
valued in excess of $500,000 and purchased goods- and
materials valued in excess of $50,000, which were
transported and delivered to it in interstate commerce
directly from points outside the State of Washington.
Ii. THE LABOR ORGANIZATION INVOLVED
Automobile Drivers & Demonstrators Local Union No.
882, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
' In adopting the Trial Examiner 's findings concerning the interrogation
of Livingston on April 12, we do not agree that the interrogation was
unlawful solely because it was not accompanied by Struksnes safeguards
Our decision in Struksnes Construction Company . Inc , 165 NLRB 1062,
is concerned with an employer ' s poll of his employees to determine the
truth of a union's claim of majority status, and does not pertain to
interrogation of an individual as to his union activities or sympathies
We agree with the finding of the Trial Examiner that Pierre did not
recognize the Union and did not agree to bargain There is no proof, based
on objective evidence, that Respondent at the time of its refusal to bargain
had knowledge independently of the designation cards submitted to it that
the Union had a majority It further appears that Respondent filed a
petition for a representation election shortly after the demand for
recognition and did not at any relevant time commit any unfair labor
practices tending to undermine the Union ' s strength or to impede the
election process On the facts of this case , we do not believe a bargaining
order is warranted , and therefore agree with the Trial Examiner's
conclusion dismissing the 8 (a)(5) allegation of the complaint
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE H. 0 BRIEN, Trial Examiner On July 29,
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in material substance and
Respondent in its answer, denies:
1 Since April 10, 1969, the Union has represented a
majority of Respondent' s salesmen.
2 On April 10, Respondent's president, Bill Pierre,
examined signed authorization cards and satisfied himself
that the Union represented a majority of Respondent's
salesmen
3. On April 10, Respondent agreed to a meeting for
negotiations with the Union to be held April 17
4 On April 16, Respondent withdrew recognition of the
Union and refused to bargain.
5. On or about April 11, Sales Manager Hoefflin
interrogated salesman Livingston about his union
affiliation.
6. By the foregoing acts, in the circumstances therein
stated Respondent engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Act.
B Background
William H. Pierre, Respondent's owner, has been in the
same business in approximately the same location in
Seattle since 1947. During the past 15 years, he has had
181 NLRB No. 155
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts with unions representing his mechanics, his parts
department employees, his office employees and his
salesmen During all of this period, he has been
represented in his dealings with unions by the same
attorney, Wallace Aiken At the time of the hearing
herein, only his office workers and his salesmen were
unrepresented. Teamsters Local 882, the Union herein,
was decertified as the salesmen's representative as the
result of a Board conducted election in 1966, in which the
Union received only two votes. During the entire period of
22 years, three charges have been filed against
Respondent. On May 10, 1968, the Union charged that
salesman Richard Bower had been discharged in violation
of Section 8(a)(3) of the Act. On some date after
mid-April 1969, the Union filed a charge alleging that
Dave Livingston had been discharged in violation of
Section 8(a)(3) of the Act.' On April 21, 1969, the Union
filed the charge giving rise to the instant proceeding.
Respondent's business has been picketed only once. That
was in 1958 in connection with a strike against all the
Seattle automobile dealers
On March 26, 1969, the Board handed down its
decision in the matter of Bill Pierre Ford, Inc , 175
NLRB No. 14, in which it found that Richard Bower had
been discriminatorily discharged on April 10, 1968, and
ordered that he be offered reinstatement and be made
whole for any loss of pay Almost immediately upon
receipt of the Board's decision, Pierre telephoned Bower
and asked him to come back to work. Bower, who was
then employed as a salesman by another automobile
dealer, Robinson and Lyon Ford, asked for a few days to
think it over, and Pierre agreed. Bower told his supervisor
at Robinson and Lyon that he was obligated to return to
Bill Pierre, but it would be more or less of a temporary
nature and he would be back with Robinson and Lyon in
a short time. The supervisor, Ted Rogers, told Bower
"Fine, come back when you can." Bower reported to Bill
Pierre about April 2, 1969, was cordially received, and
worked without incident through April 15, when he
resigned voluntarily
C. The Appropriate Unit
The complaint alleges and the answer admits that an
appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act is:
All new and used car salesmen employed by the
Respondent at its Seattle, Washington dealership,
excluding office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
The parties stipulated that as of April 10, 1969, 13 named
salesmen were in the unit. Respondent would also include,
'The date of discharge does not appear in this record The only evidence
relative thereto is the following testimony of Livingston
Q How was your employment terminated"
A I was fired
Q Have you ever been fired before
A No
Q After you were terminated by Bill Pierre Motors, what happened"
A The union filed an unfair labor practice or something like that
against Bill Pierre , and about 30 or 35 days I received a letter saying
that I could be reinstated , or go back to work for Mr Pierre About
thirty or thirty- five days after that I received a check for lost wages
Q Did you go back to Bill Pierre Motors"
A No
Q You refused reinstatement"
A Right
and the General Counsel and the Union would exclude
Richard Shelton, a salesman in Respondent's fleet and
lease department. Respondent's fleet sales department was
established at a time when its salesmen were represented
by the Union under a union shop contract. A salesman,
Salstrom, was placed in charge and simultaneously
withdrew from the Union. After several years, when
Salstrom was asked to return to retail selling, he resigned
After the Union was decertified, Respondent hired Glen
Stregy to handle its fleet deals and lease deals, and Stregy
hired Shelton to assist him. As of April 10, 1969, Shelton
and his supervisor were stationed about a mile from the
agency where all retail salesmen were employed. Shelton
received the same base pay and the same commission as
retail salesmen. Respondent has sales meetings twice a
week which all retail salesmen are required to attend.
Shelton attends these meetings about once a week on an
irregular basis Shelton does not report to the sales
manager, Hoefflin. When, on occasion, a retail salesman
makes a fleet sale, it is consummated through the fleet
and lease department. I find that Shelton has a sufficient
community of interest with retail salesmen to require hiss
inclusion in the appropriate unit, and that the appropriatd
unit on April 10, 1969, comprised 14 employees.
D The Union's Majority
On April 9 and 10, 1969, 9 of Respondent's 14
salesmen signed applications for membership in the Union
which also designated the Union as bargaining
representative. Respondent's counsel, in his brief, argues
that at least three of these applications "are unacceptable
as indicative of the Union's representative status " The
challenged application cards bear the signatures of
Richard Bower, Ernest Walker and Kenneth Edeen.
Bower, when he left Robinson and Lyon Ford, told the
sales manager, Ted Rogers, that he had won a case with
the National Labor Relations Board against Bill Pierre,
that he had to return to employment there, and that it was
"just going to be for a short time." Bower did return to
Robinson and Lyon "immediately after the 15th of
April." Respondent concedes the general proposition that
majority is to be determined as of the date when the
union's demand is received, Rea Construction Company,
137 NLRB 1769, 1770, fn. 1, but contends on the basis of
the foregoing facts that Bower on April 10 was a
temporary employee without reasonable expectation of
permanent employment, whose designation of the Union
should be disregarded Personal Products Corporation,
116 NLRB 393. 1 find that on April 10, Bower was a
bona fide employee working in the bargaining unit, that
his prospects of future employment were then
indeterminate and that his employment was in no sense
casual or temporary. Bower's designation of the Union as
his bargaining agent is valid and must be counted, Lloyd
A. Fry Roofing Co, 121 NLRB 1433, cf Hollywood
Ranch Market, 93 NLRB 1147. Bower's statement to
Rogers did not evince an intent to return at any specific
time. It was a sensible precaution which any employed
person would take on leaving an assured position for an
uncertain future.
Walker received a card from Bower on April 9, took it
home with him and signed and returned it to Bower on
the morning of April 10 Walker testified: "we signed on
our own initiative to go back into the union, the union
would be our representative." Walker also testified that he
asked Mr. Clark' to hold a meeting "because the boys
'Union secretary - treasurer , E J (Jim) Clark
BILL PIERRE FORD , INC. 1 931
didn't quite understand it" and "I wanted to have a
meeting with Mr. Clark so Mr Clark could go over it
with us and explain it to us." Respondent argues from the
foregoing testimony that Walker and other employees did
not understand the card and that Walker's designation, at
least, should be rejected on that ground I find that
Walker fully understood the significance of his act and
that his designation of the Union is valid.
Kenneth Edeen testified that Bower told him that if he.
worked in a union shop for 24 hours he would qualify for
a pension, and that Bower's statement was one of the
inducements which caused him to sign. Edeen further
testified:
Q What were the other factors involved in your
decision to sign the authorization card?
A. When we belonged to the union we had
supervisions, there were certain rules and regulations,
there were hours, different hours that we, and it was
just^ the way I felt You either were a salesman and
belonged to the union or you were just somebody off
the street selling automobiles I felt, if I was going to
pursue my line of endeavor that I should feel that there
should be some supervision.
Q. Was the sole reason for your signing the card any
alleged statements concerning the pension benefits?
A. It helped make up my mind, but it was these
others, I thought I was doing the right thing
I find that the statement regarding pension was made
by Bower and that the statement was false. I further find
that Edeen was fully cognizant of the meaning of the
application which he signed, that Edeen had no reason to
rely upon Bower's misrepresentation, and that Edeen
signed the application because he desired the certainty of
a union contract. Edeen's authorization is valid and must
be counted.
In summary, on April 10, when the Union requested
recognition, the Union held valid authorizations from 9
employees in a unit of 14, and on April 16, when
Respondent refused to negotiate, the Union held valid
authorizations from 8 employees in a unit of 13.
E. The Refusal to Bargain
On the morning of April 10, Bower telephoned Clark
and reported that he had signed up a majority of the
salesmen. Clark asked a Teamster business agent, George
Dickman, to accompany him as a witness, drove to
Respondent's agency and received nine signed applications
for membership cards from Bower. Dickman and Clark
went to Pierre's office. Clark handed the nine cards to
Pierre, who examined each carefully and wrote down the
nine names on a sheet of yellow paper. Pierre agreed to
meet with Clark again on Thursday, April 17. Pierre
testified:
Q (By Mr Aiken) How long have you known Mr
Clark of the union?
A. Oh, a long time, eighteen years or so
Q. You and I have been in Mr. Clark's presence at
various times and talked about union matters?
A. Yes, you have been my attorney for eighteen or
twenty years.
* * * * *
Q. So could you narrate, subject to their objection
what your recollection is of the day that Jim Clark and
Mr Dickman came to the agency?
A Yes I was in my office, that is upstairs, I was on
the phone, and Jim stuck his head in the door, like
that, and he saw I was on the phone so he pulled back
into the hallway, and when the conversation was over
he and Mr Dickman came in And he looked around
the room and said, "Gee, I mean have you been fishing
lately?" We talked about fishing and hunting. I had
some pictures on the wall and they liked those and
everything else He introduced me to Mr Dickman I
don't know whether he said that he was a union
representative or not, I don't recall. But, anyway, after
these five or ten minutes of conversation, he laid down
these cards on my desk and said, "Bill, you see these
men want to go back into the union They have all
signed these cards." And really it was a great surprise
to me I hadn't the faintest inkling that we had any
problems like that at all, if they are a problem, and, it
came completely out of the blue. The reason why Jim
and his friend were allowed into my office was because
we had lost our former case, and the only thing that
was unsettled was the renumeration between the time
Mr. Bower left our service and the time he came back,
and according to law that he made less than he made at
our place. We had to fix that And that is the reason I
thought Jim came into our office. If it hadn't been that
and that is the only reason why, I wouldn't have
allowed him in, because I would have gone down to see
my attorney. Every time I open my mouth I always
seem to get into trouble, and that is his ruling. I had
orders from Mr. Aiken's office that, to settle with Mr.
Bower as soon as possible. To get the figures and ,make
a settlement, which we hadn't at that time
Q. What, if anything, did you say about a meeting
the following week or something"
A. Number one, when all these cards were thrown
down at me, in fact, I picked them up and looked at
these cards and really and truly I was shocked and
stunned at the signatures I saw on these, fellows that
had been with me a number of years that knew they
could come in and talk to me anytime they wanted.
And you can ask them that if you want to review the
stand on that one And come in and talk to me if they
had any problems, and there was nothing ever said to
me, so this came as a complete surprise. And I think
you agree with me Jim. [Clark was in the hearing
room ] So he said, "Let's start negotiating." I said,
"Gee, I don't want to negotiate, listen, make it next
Thursday I have to go out of town." The reason for
that remark was that I wanted to go right down and see
my attorney, see what rights I had, and that is the
reason for it, and I just got out of that car I mean
as soon as they left I got out of the agency and never
said a word. Because the last time I did it wasn't good
for me I didn't say a word, and I didn't come back for
a week, or four or five days anyway
Q. Why did you copy the names on the yellow sheet?
A. Because I wanted to be sure of this. I couldn't
believe it. I couldn't believe this was on there
Q. Did Mr. Clark say anything about whether he
asked for an election or not9
A He asked me, he wanted to start negotiating right
now. That was, to my knowledge the minute I looked
at these names and when you are completely surprised
you don't think too well, and that is the reason I picked
932 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up the cards. I didn't read what was on the cards, I just
looked at the signatures. I knew that I shouldn't do any
talking, because that is what I have attorneys for.
Much of the foregoing testimony was corroborated by
Clark and Dickman, and none, with one possible
exception was contradicted by either Clark testified on
direct examination that Pierre said: "Well, Jim, I am
going to be tied up the rest of this week, but I have to go
out of town I will be happy to meet in negotiations next
Thursday with you." On cross-examination Clark
testified:
Q. Is it your testimony that Pierre said "I will
negotiate with you next Thursday"?
A. Similar to that language. I don't recall just
exactly what the language was.
Q Did he use the word, "negotiate"?
A. I recall him using the term several times when we
were discussing it, and him agreeing to a meeting the
next week for the purpose of negotiations I don't recall
exactly the language that we used in the text that he
put it.
Dickman, on direct examination testified:
A. . Mr. Clark had the bargaining cards in his
hand and handed them to Mr. Pierre. Mr. Pierre went
through them very carefully, set them down upon his
desk, fingered them a little bit, and said, "I recognize I
have a problem here that I didn't know I had." He also
said, "Mr. Clark, What comes next?" and Mr. Clark
said, "Well, we'll go into, have a bargaining
agreement". Mr. Pierre asked what time or when, and
Jim said "Right away".. .
On cross-examination Dickman testified
Q. He said that he would see you, or meet the
following Thursday. Did he say "I will talk with you
then." or, "I am going to negotiate with you."
A. They talked of a bargaining when Mr. Pierre had
asked prior to this, what comes next, to Jim. He said
we would have a bargaining meeting. In the course of
this conversation Mr Pierre said when the time came
up, and it was to be Thursday morning at 9:00 a m.
On Wednesday, April 16, Respondent filed a petition
for an election which was docketed as Case 19-RM-776 in
which the appropriate unit was described as "All new and
used car vehicle salesmen." On the same date, Respondent
advised the Union by telephone that there would be no
meeting on Thursday, April 17
Meanwhile, about April 12, Sales Manager Hoefflin, in
a private conversation with salesman Livingston, asked,
"What do you think about the Union?" Livingston replied
that he had signed up for it and he wanted to get the
benefits of the Union. Hoefflin then showed Livingston his
own membership card and stated, "I don't care for it
because I can't manage my salesmen."
F. Summary of Arguments of Counsel
The General Counsel advances three arguments which
are, in substance:
1. On April 10, Pierre satisfied himself that a majority
of his salesmen in an appropriate unit had signed
authorization cards and agreed to meet with the Union's
representatives on April 17 for the purpose of negotiating
a contract. Respondent thereby accorded recognition to
the Union Respondent was obligated to continue this
bargaining relationship for a reasonable time to give it a
fair chance to succeed. Standard Auto Body Inc., 171
NLRB No. 91 Respondent's withdrawal of recognition on
April 16 was an unlawful refusal to bargain, even in the
absence of evidence of any other unfair labor practice.
San Clemente Publishing Corp , 167 NLRB No. 2.
2. If it be found that Pierre did not on April 10 accord
recognition to the Union, then his failure to do so
followed by Respondent's refusal on April 16 to negotiate
with the Union constituted an unlawful refusal to bargain,
even if there were no evidence to indicate active
impropriety on the part of Respondent. Retail Clerks
Union, Local 1179, Retail Clerks International
Association, AFL-CIO (John P Serpa, Inc ) v. N L R B,
376 F.2d 186 (C.A 9, 1967).
3. A bargaining order is required because Respondent
engaged in contemporaneous unfair labor practices likely
to destroy the Union's majority and seriously impede any
election. These were: (a) the interrogation of Livingston
by Service Manager Hoefflin, (b) the discharge of
Livingston and (c) the fact that the unfair labor practices
found by the Board in its decision of March 26, 1969, had
not been completely remedied as of April 10 or April 16.
This final argument rests on the presumption that the
effects of unfair labor practices are not completely
dissipated until the "Notice to Employees" appended to
the Board order has remained posted for 60 consecutive
days
Respondent argues in substance:
1. The Union at no time represented a majority because
the cards of Bower, Edeen and Walker did not constitute
valid designations
2. The Respondent entertained a good faith doubt that
the Union represented a majority based upon the
following objective criteria: (a) Less than four years prior,
in a Board conducted election the union was rejected by
an overwhelming majority of the salesmen. (b) Pierre had
no knowledge that any organizing campaign had taken
place, and (c) Pierre's conviction that salesmen Ernie
Walker, Ken Edeen, and Dave Swanson preferred to deal
directly with Pierre as individuals.
3 Respondent's good faith is further evidenced by the
fact that just four business days following the Union's
demand, Respondent petitioned for an election and by the
fact that Livingston was offered reinstatement and
backpay almost immediately after the propriety of his
discharge was challenged.
4. Respondent did not engage in any unlawful conduct
designed to dissipate the Union's alleged majority status
or to render a fair election impossible The only
questionable conduct engaged in by any representative of
Respondent was the interrogation of Livingston by
Hoefflin. This does not amount to the "independent and
substantial unfair labor practices disruptive of election
conditions" which are a prerequisite to the entry of a
bargaining order based on authorization cards.
5. Pierre did not recognize the Union and did not agree
to bargain
6. If it be found that Pierre did agree to negotiate, this
agreement was based on Clark's incorrect assertion that
Pierre was required to bargain, and is therefore not
binding on Respondent.
G. Concluding Findings
1. Respondent did not recognize the Union nor did it
agree to negotiate with the Union. I find that the words
used by Pierre in replying to Clark's request for
immediate negotiations were: "Gee, I don't want to
i
BILL PIERRE FORD , INC 933
negotiate, listen, make it next Thursday." Clark admitted
on cross-examination that he did not recall exactly what
the language was Dickman did not, either on direct or on
cross-examination supply any words of Pierre signifying
an agreement to negotiate Pierre, being uncertain as to
what his legal obligations were, responded with equivocal
language to Clark's request. Clark, in view of his long
acquaintance with Pierre, and his knowledge that Pierre in
all of his dealings with the Union had been and was
presently represented by counsel could not, reasonably,
have believed that recognition was accorded on April 10.
This finding renders inapposite the holding in San
Clemente Publishing Corp, 167 NLRB No. 2, where
recognition, formally accorded, was subsequently
withdrawn.
2. The interrogation of Livingston by Hoefflin was
noncoercive, was tempered by the disclosure that Hoefflin
was himself a member of the Union, was isolated, and
there is no evidence that it was known to or approved by
higher management. Under these circumstances, a
remedial order is neither required nor warranted.
3 Respondent has not committed independent and
substantial unfair labor practices disruptive of election
conditions In N L.R B v Gissel Packing Co , Inc, 395
U S. 595, the Supreme Court restated and approved the
Board's present practice which is, in the words of the
Court:
When confronted by a recognition demand based on
possession of cards allegedly signed by a majority of his
employees, an employer need not grant recognition
immediately, but may, unless he has knowledge
independently of the cards that the union has a
majority, decline the union's request and insist on an
election, either by requesting the union to file an
election petition or by filing a petition himself under
Sec. 9(c)(1)(B). If, however, the employer commits
independent and substantial unfair labor practices
disruptive of election conditions, the Board may
withhold the election or set it aside and issue instead a
bargaining order as a remedy for the various violations.
A bargaining order will not issue, of course, if the union
obtained the cards through misrepresentation or
coercion or if the employer's unfair labor practices are
unrelated generally to the representation campaign
Under the Board's current practice, an employer's good
faith doubt is largely irrelevant, and the key to the
issuance of a bargaining order is the commission of
serious unfair labor practices that interfere with the
election processes and tend to preclude the holding of a
fair election. Thus an employer can insist that a union
go to an election, regardless of his subjective
motivation, so long as he is not guilty of misconduct, he
need give no affirmative reasons for rejecting a
recognition request, and he can demand an election with
a simple "no comment" to the union
* x r
We emphasize that under the Board's remedial power
there is a third category of minor or less extensive
unfair labor practices, which, because of their minimal
impact on the election machinery, will not sustain a
bargaining order. There is, the Board says, no per se
rule that the commission of any unfair practice will
automatically result in a Sec. 8(a)(5) violation and the
issuance of an order to bargain See Aaron Brothers
Company of California, 158 NLRB 1077.
The interrogation of Livingston was unlawful solely
because not accompanied by the safeguards delineated in
Struckness Construction Company, 165 NLRB No 102,
is clearly minimal and will not sustain a bargaining order.
The cause of Livingston's discharge was not litigated
herein and no inference can or should be drawn either
from the fact of the discharge or the fact of proffered
reinstatement Unfair labor practices committed by
Respondent in April 1968, which had been completely
remedied except for the computation of backpay and the
expiration of the 60 day notice period are wholly
unrelated to the Union's representation campaign in April
1969 and should not and may not support a bargaining
order.
4 The General Counsel's reliance on Retail Clerks
Union, etc (John P Serpa, Inc.) v N. L R B, supra, is
wholly misplaced. There the Circuit Court, reversing John
P Serpa, Inc , 155 NLRB 99, stated:
However, when the employer makes his own
examination of the authorization cards and is convinced
of their identity and validity, as the Trial Examiner
found that Serpa had done, a subsequent refusal to
recognize the union is adequate affirmative evidence of
lack of good faith doubt as to majority status.
Not only is the foregoing proposition contrary to the law
as restated by the Supreme Court in Gissel, and quoted
supra, the Supreme Court in Gissel has apparently
approved the Board's decision in the Serpa case The
Supreme Court, summarizing Aaron Brothers, states:
The Board noted (1) that not every unfair labor practice
would automatically result in a finding of bad faith and
therefore a bargaining order, the Board implied that it
would find bad faith only if the unfair labor practice
was serious enough to have a tendency to dissipate the
union's majority The Board noted (2) that an employer
no longer needed to come forward with reasons for
rejecting a bargaining demand. The Board pointed out,
however, that a bargaining order would issue if it could
prove that an employer's "course of conduct" gave
indications as to the employer's bad faith. As examples
of such a "course of conduct" the Board cited Snow
and Sons 134 NLRB 709 and Kellogg Mills, 147
NLRB 342, thereby reaffirming John P Serpa, Inc,
155 NLRB 99 (1965) where the Board had limited
Snow and Sons to its facts
5 Respondent did on April 10, 1969, and through April
17, 1969, and at all times material herein entertain a good
faith doubt that the Union represented a majority of its
salesmen.
6. Respondent's failure to bargain on April 10, 1969,
and its refusal to bargain on April 16, 1969, and
thereafter is justified and excused by its good faith doubt,
and by the fact that it refrained from the commission of
serious unfair labor practices tending to preclude the
holding of a fair election
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in a
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business affecting commerce within the meaning of RECOMMENDED ORDER
Sections 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor practices Pursuant to Section 10(c) of the National Labor
affecting commerce within the meaning of Sections 8(a)(l) Relations Act, it is ordered that the complaint be and
and (5) and 2(6) and (7) of the Act . hereby is dismissed.