Chandler Motors, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1978

236 N.L.R.B. 1565 (N.L.R.B. 1978)

Chandler Motors, Inc. and Amalgamated Local Union
355. Cases 22-CA-7250 and 22-CA-7300
July 17, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MUtRPHY. AND TRUESI)D\I.I
On October 5, 1977, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge, to
modify his remedy,2 and to adopt his recommended
Order, as modified herein.
We adopt the Administrative Law Judge's findings
that Respondent violated Section 8(a)(1) of the Act
by coercively interrogating three of its employees
about their union sympathies: by threatening these
employees that if the Union were successful the shop
would have to close; and by creating less favorable
working conditions in response to union activity by
denying previously granted telephone privileges and
the right to order automobile parts through Respon-
dent.3 We also adopt, for the reasons stated by the
Administrative Law Judge. his finding that employee
William Diamond was discharged for his support of
the Union.4
Respondent has excepted to certain credibility findings made bs the
Administrative Law Judge. It is the Board's estabhlished policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibilit)
unless the clear preponderance of all of the relevant evidence conxmince us
that the resolutions are incorrect. Standard Dri Wall Product is. Inc, 91
NLRB 544 (1950). enfd. 188 F.2d 362 (CA. 3. 1951). ive have carefulls
examined the record and find no basis for reversing his findings
2 See, generally, Isis Plumbing & Hearing Co. 138 NLRB 716 (1962) for
rationale on interest payments.
3 In adopting this finding that the refusal to order automobile parts N1im-
lated Sec, 8(a)1I), we note that the Administrative Law Judge failed to make
a finding with respect to whether Hildebrandt, the parts manager. was an
agent of Respondent when he told Rhodes that he could no longer sell parts
to mechanics. We find that Hildebrandt was an agent of Respondent. Thus.
the record shows that Hildebrandt routinely acted as a conduit between the
employees and Respondent for the dispersal of parts, and that the emplo!-
ees were justified in relying on him in matters dealing with allocation of
parts. See Samuel Liefer and Harry Ostreicher, a Copartnership d b a Riccr
Manor Health Related Facilint, 224 NLRB 227, 234-235 (1976)
' In adopting this finding of an 8(a(3) discharge, we do not rel) on the
part of the Administrative Law Judge's Decision where he stated that Re-
spondent's voluntary reinstatement of Diamond belied Respondent's
claimed reasons for the discharge. since Respondent may have had other
valid reasons for reinstatement, including a simple desire to limit potential
liability for backpay See Rules 408 and 409 of the Federal Rules of EFi-
dence.
CHANDLER MOT'ORS. INC
We do not. however. adopt two of the Administra-
tive Law Judge's findings of violations of Section
8(a)( ). First, the Administrative Law Judge found
an independent violation of Section 8(a)(1) based on
testimony that Supervisor Twaddle told emplovee
Rhodes that the employees should have come to him
(Twaddle) first, that he could have gotten them what
the) wanted, and that they went about it the wrong
way by going to the LUnion. As we found in (GlasFow
Industries. Ilc., 210 NI.RB 121 (1974), the mere pres-
ence of such a statement in the record does not suf-
fice to justify a finding of a violation. Thus. here, as
in Glasgow, the conduct found to be a violation was
not alleged as a violation in the complaint. w hich was
never amended and does not contain any catchall
provisions on violations alleged. Respondent was
never subsequently made aware that Twaddle's state-
ment was an issue in the case. Nor was the issue fully
litigated, for there is only one reference to Twaddle's
statement in Rhodes' testimony, and Respondent did
not cross-examine Rhodes on this issue or introduce
any evidence with respect to the statement. We there-
fore conclude that the record is insufficient to sup-
port a finding of a violation in this statement.
Secondly, we find the evidence insufficient to sup-
port the Administrative Law Judge's finding that Re-
spondent violated Section 8(a)(1) by withholding
cash advances to employees because of their union
activity. Thus, the record shows that on two occa-
sions after a representative of the Union visited Re-
spondent President Shumsky, the bookkeeper. Marie
Gale, refused cash advances to employees Rhodes
and Gray. Gale testified that she would advance up
to $25 to the employees when she had sufficient petty
cash, but that on days when petty cash was made up
mostly of checks she would not. On the occasions in
question, her petty cash was inadequate. As the em-
ployees testified, the next time they requested cash
advances, they were granted. We find this evidence
inadequate to support a finding that the withholding
of the cash advances was done to discourage adher-
ence to the Union. Rather, this evidence merely es-
tablishes that on two isolated occasions Respondent
did not have sufficient funds to make advances. Nor
do we find any support in the record for the Admin-
istrative Law Judge's conclusion that because the
sums were small (under $25) Respondent could have
advanced them either from petty cash "or some other
source without particular dislocation .... " This
finding is purely speculative, and we reject it.
Despite our disagreement with two of the findings
of the Administrative Law Judge, we are in agree-
ment with the balance of his findings of violations of
the Act and with his conclusion that a bargaining
236 NLRB No. 186
1565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order is warranted.5 Thus, the record shows that fol-
lowing hard on the heels of the Union's demand for
recognition Respondent embarked on a campaign
designed to destroy employee support for the Union.
Starting only 2 days after the demand for recogni-
tion, Respondent interrogated three employees con-
cerning their union allegiance; withdrew certain ben-
efits because of the employees' union activity;
threatened the employees with closure of the busi-
ness if the Union were successful; and unlawfully
discharged an employee because of his union sup-
port. Based on these violations, we find that Respon-
dent's conduct not only made unlikely the holding of
a fair election, but also undermined the Union's
preexisting majority. We further find that Respon-
dent's past coercive conduct renders uncertain the
possibility that traditional remedies can insure a fair
election. Accordingly, we conclude that the Union's
card majority of six employees out of a unit of sev-
en,6 obtained before the unfair labor practices oc-
curred, provides a more reliable test of employee rep-
resentation desires than would an election. We
therefore find that by refusing to recognize and bar-
gain with the Union and by engaging in the aforesaid
unfair labor practices Respondent violated Section
8(a)(5) and (I) of the Act, and that the policies of the
Act will be best effectuated by imposition of a bar-
gaining order to remedy such violations.'
As the Third Circuit has noted,8 the Supreme
Court stated in Gissel that unfair labor practices need
Member l'ruesdale would, however, date the bargaining obligation from
October 13, 1976, the date of the Union's demand for recognition with a
majority showing, which demand was then refused by Respondent. Con-
trary to his colleagues, therefore, he would not adopt that portion of the
Administrative Law Judge's recommended Order which dates the bargain-
ing obligation from October 15. the date on which the first unfair labor
practices occurred.
' The General Counsel introduced the six cards about which there was
uncontradicted testimony that the employees whose signatures are on the
cards signed them at a meeting on October 11 in the presence of each other
and the union business agent, Allan Settlow. The majority was therefore
properly authenticated and it was not necessary- where the authenticity of
the cards was unchallenged that the General Counsel call each emplioee
who signed a card to authenticate his signature. See. e.g. East Side Shopper,
hDa< ,ei /., d h a Daiwn (Detroit Area Weekly Newvspapers, Inc.) 204 NLiRB
841, 849 850. fn 52 (1973).
7 1. R B v. (;tssel Packing (o., Inc., 395 U.S. 575 (1969).
A'.L.R.B v. Armicor Industries, In(., 535 F.2d 239 (C.A. 3. 1976) AW e
have deemed it necessary in this case to set forth in detail the reasons why
we find it appropriate to grant a Gissel bargaining remedy rather than Ito
adopt and rely on the findings of the Administrative Law Judge. Iloeser,
we do not thereby accede to the position of the U.S. Court of Appeals for
the Third Circuit in such cases as N L.R B., v. Arntmor. iupru, and Kenwrorth
Trucks of Philadelphia, Inc s. N.L.R.B. , 98 LRRM 2263, 83 LC ¶10.548
(C.A. 3. 1978). With all deference to the court, we believe that the adminis-
tration of the Act, for which we are responsible, requires that we await ;
final disposition bh the Supreme Court of the issue in order to resolve the
conflict with other circuits on this important issue. We wish to make it clear
that our adherence is intended as nothing more than respectful dis
agreement with the slew of the Third Circuit on the matter and an attempt
to protect, until the conflict is resolved by the Supreme Court, what we
consider to be a substantial legal issue.
not be "outrageous" or "pervasive" before a bargain-
ing order can issue; it is sufficient if the extensiveness
of an employer's violations "have the tendency to
undermine majority strength and impede the election
process." We conclude that Respondent's violations
had that effect here.
In so finding, we note that, in a unit of seven em-
ployees, five were the object of, or exposed to, Re-
spondent's unfair labor practices. An employer's un-
lawful conduct is heightened when it is directed at
such a small employee complement. The unfair labor
practices themselves were severe. They included, in-
ter alia, a threat that the business would have to close
if the shop were unionized, a withdrawal of benefits,
and an unlawful discharge. The Board and the courts
have long ago determined that threats of closing a
facility because of union activity are among the most
serious forms of interference with protected employ-
ee rights,9 and the Supreme Court has noted they are
among the most effective unfair labor practices for
destroying election conditions for a longer period of
time than other unfair labor practices. °0 The with-
drawal of benefits is a blatant example of Respon-
dent's raw economic power over the employees
which it here wielded for antiunion purposes," and
the unlawful discharge was conduct the Board and
courts have long classified as misconduct going "to
the very heart of the Act." 12 All these unfair labor
practices made it demonstrably clear to the employ-
ees that the penalties for support of the Union were
severe. And these deeds gave weight to the threat
that the employees would lose their jobs because Re-
spondent could not afford a union. Also, these viola-
tions were particularly heightened here because of
the speed with which they occurred after the Union's
demand for recognition. Within I week, Respondent
had committed unfair labor practices affecting all
but two of the employees in the unit.
Respondent argues that it, itself, has remedied a
number of its unfair labor practices so that a bar-
gaining order is not warranted. We cannot agree. It is
problematic whether Diamond's discharge could
ever have been so effectively remedied that it would
not be considered in assessing whether a bargaining
order should issue.t Assuming, arguendo, however,
9 Textile Workers Union v. Darlington Mfg. Co. 380 U.S. 263 (1965); Irv-
ing N. Rotlhin d/b,'a Inrs Market, 179 NLRB 832 (1969), enfd. 434 F.2d
1051 (C.A. 6. 1970).
0 .V.L R.B. v. Gissel. 395 U.S. at 611, fn. 31.
Compare N.L.R.B. v. Exchange Paris Company. 375 U.S. 405 (1964).
' See. e.g., N.L.R.B . v. Entwistle Mfg. Co., 120 F.2d 532. 536 (C.A. 4,
1941).
| In Zim niertile Corp., 218 NLRB 269, 270 (1975), the Board noted that
"'lan employer's demonstrated willingness to employ extreme measures to
defeat a union cannot help but have a lasting and telling effect. Employees
will certainly understand and remember the harsh treatment visited on them
as a result of asserting their rights and may draw back from again asserting
those rights"
1566
CHANDLER MOTORS, INC.
that such a discharge could be sufficiently rectified
so that we would not weigh its occurrence in assess-
ing the suitability of a bargaining order, Respondent
did not adequately remedy its action here since
Diamond's reinstatement was without backpay and
without any admission to the employees of prior
wrongdoing. Similarly, while Respondent reinstated
the benefits withdrawn after the Union's visit, Re-
spondent did so without any statement to the em-
ployees that in the future it intended to abide by the
law in order to assure a free election.'4 Respondent's
silent change in behavior was not sufficient to erase
the effects of its unfair labor practices.
In concluding that a bargaining order is appropri-
ate here, we have followed the Supreme Court's ad-
monition to consider "the extensiveness of [Respon-
dent's] unfair labor practices in terms of their past
effect on election conditions and the likelihood of
their recurrence in the future." 15 The unfair labor
practices' effect has been detailed above. Obviously,
actual effect is difficult to ascertain precisely, and it
is not Board practice to take evidence on or consider
subjective reactions. But it has been the Board's ex-
perience that unfair labor practices of the type noted
above are likely to leave a significant and persistent
imprint on employees. Here, that imprint of the un-
fair labor practices is solidified because of the swift-
ness with which they occurred and the number of
employees directly affected. The likelihood of recur-
rence of the unfair labor practices is also difficult to
ascertain. However, given the swiftness and the
thoroughness with which Respondent responded to
the Union's recognition request, the likelihood of Re-
spondent again engaging in illegal conduct is clearly
present. Accordingly, a bargaining order is appropri-
ate here. In so concluding, we have noted the argu-
ment that other remedies may be available here as
alternatives to a bargaining order. Remedies such as
a cease-and-desist order or the mailing or reading of
the notice to employees have been suggested as
blunting the need for a bargaining order. We note.
however, that this same argument was rejected by the
Supreme Court in Gissel 16 and, for the reasons given
by the Supreme Court there, we see no reason to
adopt that argument here. We note that in issuing the
bargaining order we need not decide that Respon-
dent's unfair labor practices so undermined the elec-
toral process that a fair election is impossible. That is
not the standard set down for us in Gissel. Rather, in
describing the so-called second category of unfair la-
bor practices would warrant a bargaining order, the
Gissel court spoke as follows: 17
If the Board finds that the possibility of erasing
the effects of past practices and of ensuring a
fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is slight and
that employee sentiment once expressed through
cards would, on balance, be better protected by
a bargaining order, then such an order should
issue . . . . [Emphasis supplied.]
Applying that criteria, a bargaining order should is-
sue here.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Chandler Motors, Inc., Linden, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b) and
reletter the following paragraphs accordingly:
"Refusing to recognize and bargain with Amalga-
mated Local Union 355 as the exclusive representa-
tive of its employees in the appropriate collective-
bargaining unit."
2. Substitute the attached notice for that of the
Administrative Law Judge.
14 See also fn I 1. upra
X 'L R B (Gis l, supra at 614.
lid at 611 12
Il at 614 61hS
APPENDIX
NO ICE To EMPLOYEES
POSIEI) BY ORDER OF THE
N110NAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL.L Nor question you about your union
membership, activities, or desires.
WE Wil. NOI threaten you with closure of our
shop because of your union activity.
WE wl NOT refuse to recognize and bargain
with Amalgamated Local Union 355 as the ex-
clusive representative of our employees in the
unit described below.
WE wit.l NOT discontinue employee privileges
in the shop or otherwise create less favorable
working conditions to persuade you to cease
support for the above-named Union, or any
other labor organization.
WE wlnt NO1 discourage membership in
Amalgamated Local Union 355. or any other la-
1567
DECISIONS OF NATIONAL LABOR RELA'TIONS BOARD
bor organization, by discharging, laying off. or
in any other manner discriminating against en-l-
ployees because they have engaged in union ac-
tivity.
WIE wi.i. NO[ in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the Act.
WI vWll.I. make whole, with interest, William
Diamond for any loss of earnings, he may have
sustained by reason of our discrimination
against him.
Wt! wti.l upon request, recognize and bargain
collectively with Amnalgainated Local Union 355
as the exclusive statutory bargaining representa-
tive of our employees in the appropriate collec-
tive-bargaining unit set forth below, and em-
body any understanding reached in a signed
agreement. The appropriate collective-bargain-
ing unit is:
All service and parts employees employed by
Chandler Motors, Inc., at our Linden. New
Jersey, facility, including mechanics, get-
ready employees and porters, but excluding
salesmen, office clerical employees, profes-
sional employees, guards, and all supervisors
as defined in the Act.
CHAND)LER MOIORS. IN(.
DECISION
SIATFMFNI ()F IHIt CAS
RoBER-r M. SC IiWARZBAR1, Administrative Law Judge:
These consolidated cases were heard in Newark. New Jer-
sey, on March 9, 1977. on a consolidated complaint issued
December 13, 19 76 ,
I based upon charges filed on October
20 and November 10, respectively, by Amalgamated Local
Union 355, herein the Union. The consolidated complaint
alleges that Chandler Motors, Inc., herein Respondent, vio-
lated Section 8(a)(1) of the National Labor Relations Act,
as amended, herein the Act, by coercively interrogating
certain of its employees concerning their activities on be-
half of and sympathies for the Union, by threatening its
employees with shop closure if they joined or supported the
Union, and by depriving its employees of certain existing
privileges in order to discourage them from joining or sup-
porting the Union; violated Section 8(a)(3) and (1) by dis-
charging two employees, Samuel Thomas and William [)i-
amond, both of whom were subsequently reinstated: and
contravened Section 8(a)(5) and (I) by refusing to recog-
nize and bargain collectively with the Union.
Respondent, in its answer, denied that the Union at any
time enjoyed support among the majority of its employees
and that unfair labor practices had been committed. Coun-
' All dales hereinafler are in 1976 unless staled to be othel-uisc
sel for the General Counsel and for Respondent have filed
briefs which have been carefully considered.
Upon the entire record, including my observation of the
witnesses, I make the following:
FINDINGS OF FA( I
I TIE BUiSINESS OF RESPONI)ENT
Respondent. a New Jersey corporation, is engaged in the
retail sale and servicing of automobiles and related prod-
ucts. During the preceding 12 months, which period is rep-
resentative of its annual operations generally, Respondent
derived gross revenues in excess of $500,000 from its opera-
tions, and, during that same period of time, Respondent
caused to be purchased, transferred, and delivered to its
Linden, New Jersey, facility automobiles and other goods
and materials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transported
to said Linden facility in interstate commerce directly from
States of the United States other than the State of New
Jersev.
In accordance with the foregoing conceded facts, I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. IEt LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
1II HFIE UNFAIR LABOR PRA(TICES
A. The Union's Organizational Campaign
Respondent, a Dodge dealer, is engaged in the retail sale
and servicing of motor vehicles at its Linden, New Jersey,
facility. Seymour Shumsky 2 has been Respondent's presi-
dent since 1959 and, at all times material herein, John
Twaddle has been service manager and Marie Gale has
been the bookkeeper.
On October II1, Allan Settlow, business agent and trea-
surer of the Union, at the invitation of one of Respondent's
employees, met with a group of Respondent's mechanics
and service employees at a diner in Linden. Also present
were George Anest, Brian Rhodes, William Diamond,
John Stewart, Larry Gray, and Samuel Thomas, all of
whom were employed by Respondent. Settlow discussed
the procedures involved in organizing Respondent's shop
and in obtaining membership in his Union. He also distrib-
uted union authorization cards to those who were present
and read a card 3 aloud verbatim. Settlow explained that
2 The record of this proceeding ishereby corrected to reflect Shumsky's name
as it appears above and to accuragely specify the name of witness Bryan
Campbell, whose testimony will be considered below.
3 At the meeting, each employee was asked to complete the upper and lower
halves of membershipapplication forms. Theseconsisted of two identical union
authorization cardsjoined by a separable perforated edge. The cards were the
so-called single purpose cards, which, in addition to blanks for applicant's
name, address, shop, business address, date. and signature. contained the
following language:
1568
CHANDLER MOTORS. INC
the employer could voluntarily recognize the Union or seek
a representation election. At that meeting, all six emplo?-
ees completed. signed, and returned their cards in dupli-
cate.4
On October 13, at or about I p.m.. Settlow, accompanied
by Frank D'lse. another business agent, visited Respon-
dent's premises where they awaited the return of Respon-
dent's president, Seymour Shumsky. When Shumsky ar-
rived approximately 30 minutes later, the two union
representatives introduced themselves and accompanied
Shumsky to his office. There, Settlow told Shumsky that
his union represented his Company's service, parts, and
body shop 5 employees for purposes of collecting bargain-
ing. Settlow then put before Shumsky one of the sets of
union cards that had been completed in duplicate by Re-
spondent's employees on October 11. As Shumsky looked
through the cards, he stated that one signer is an addict.
another is a drunk, a third was too old to work, one person
was not a mechanic, another should not be working there,
while the remaining employee did not know what he was
doing. Shumsky then threw the cards into a waste basket.
At Settlow's suggestion. Shumsk) retrieved the cards but
told Settlow that he would not recognize the Union and
that Settlow should do what he had to do.
With Shumsky's permission. Settlow then went to Re-
spondent's shop area and told several of the employees
there at the time, including Larry Gray, Brian Rhodes.
George Anest, and Samuel Thomas, what had happened in
Shumsky's office. He also announced that he would have
to file for an election.6
When Settlow and D'lse left Shumsky's office on Octo-
ber 13, the set of union cards remained on Shumsks's desk.
Although Shumsky denied that he again looked at them, he
made no effort to return them to the Union. Instead, after
making relevant inquiries, he called and engaged the Phila-
delphia law firm that represented him in the present pro-
ceeding. On their advice, he mailed the cards to his new
attorneys within about half an hour of Settlow's departure.
I hereby apply for membership in Amalgamated Local I nion 355
and authorize and designate this Union to represent me for collecle
bargaining with my employer
I hereby authorize and direct ms emplover to deduct fromnt mn v ges
and to pay over to Amalgamated Local mnion 355. such amounts in-
cluding dues and initiation fees (as m) membership dues) In said t non
as may be estabhlished by the Union and become due to it from me
during the effective period of this authorization, This authorlzation
may be revoked bs me as of any anniversary date hereof or termination
date of collective bargaining agreement. whichever occurs sooner. h
written notice signed by me. This authorization shall automaticallI re-
new itself unless written notification is submitted
4 At the hearing. the parties stipulated that in October there were seveln
persons employed in the unit of sers ice and parts emplioees found aIppro-
priate herein, and, at the time of the hearing, nine individuals were iso cm-
ployed
5In actuality. Respondent did not employ bods shop emplosees at the
time.
6 A petition for a representation election was filed in C ase 22 R( 6h927
on October 15. but this petition wils dismissed by the Acting Regional Di-
rector for Region 22 on December 14 after issuance of and consistent with
the present consolidated complaint.
B. Re,rpostenit s A Ile'ged A cl of Interterence. (Coercion, and
Restraint Flctrs and (otnclusions
Brian Rhodes 7 testified that on or about October 15. 2
days after Settlow's visit to Shumsky, he and fellow em-
ployees Stewart, Anest. and Diamond. while on break.
were engaged in a casual conversation with Service Manag-
er Twaddle at his desk. While the) were talking of matters
unrelated to this proceeding. Twaddle stated, "So you guys
want a union in this shop." Twaddle told them that they
should realize that this shop was really too small to have a
union as it had only four or five mechanics. He concluded
by saying that they would all lose their jobs if the shop
became unionized as Shumskv could not afford a union.
Twaddle approached Rhodes 2 days later as he was
working on a van and told him that the men should have
come to him first, lie could have spoken to Shumsky and
obtained for the men what they wanted. They had gone
about it the wrong was by going to the Union. Rhodes did
not reply.
A few days after the above incident. Rhodes, while at
work, was again approached by Respondent's president,
Shumsky. and Twaddle. Shumsky asked Rhodes, "Well,
are you with me?" Twaddle interjected on Rhodes' behalf
that he thought so. Rhodes simply replied, "No comment."
Rhodes testified that, before Settlow's October 13 visit,
he and the other employees had had permission to make
and receive personal telephone calls on the job when they
were not busy during their lunch periods or during their
10-minute morning and afternoon breaks. However, after
Settlow's visit, the telephone, for the first time, had a lock.
This lock remained in place from mid-October until early
December at which time the lock was removed. Since then
the employees had been free to use the telephone as before.
Employees Rhodes and John Stewart testified that, dur-
ing the course of their employment prior to October 13. the
date of the recognition request. they had purchased vehicle
parts from Respondent, but that for periods thereafter they
had been refused permission to buy such parts. Rhodes
related that he previously had bought parts from Respon-
dent on an average of once every 2 or 3 weeks, the last such
transaction's having taken place about 2 or 3 weeks before
the Union's request for recognition. and always had been
allowed to buy whatever he wanted. 8
However. shortly after Settlow's visit, when Rhodes
again attempted to buy materials from his usual source,
Tony Hildebrandt., Respondent's part manager," Hilde-
brandt refused to take his order replying that Shumsky had
told him that he could not sell parts to the mechanics any-
more and that he would be fired if he did. Hildebrandt told
Rhodes not to come to the parts room anymore. Rhodes. in
turn, related this experience to other employees and, when,
in January 1977. he again was able to buy parts from Re-
spondent's parts room, he also reported this to his fellow
workers.
At the time of the he riln, Rhodes was enmplosed bh Respondent as 3
mechaiiic lie is .i friend ,of Respondent's sersice manager. John Twaddle
Rhodes ued the xehiul- parts to fix the car, of his friends and to do
outside automotive serxlce work on his ow.in ime
At the hearint. the pa.lrle stipulated that Ihildebrandt is not a superis-
or within the inc.intie of Sec 2( 1 1 )1 the Act ihu eser. tne parties ;ire in
aereemenil ihbt Shunikx iind I addle do haise such superxl sor! status
1569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stewart, another mechanic in Respondent's employ who
also had signed a union card, testified that, prior to
Settlow's visit to Respondent, he, too, had bought vehicle
parts from Respondent. In fact, at the time of Settlow's
visit, Stewart already had outstanding orders for certain
parts with Respondent. However, shortly thereafter, Hilde-
brandt told Stewart that he could not let him have the parts
which previously had been ordered.
When Stewart asked the service manager why he could
not get the parts requested, Twaddle replied that the boss
could not order anymore parts. Although Stewart pointed
out that he already had ordered them, he did not receive a
satisfactory reply.
Stewart, in fact, was rebuffed in his efforts to obtain
parts from Respondent only once. About 60 days later, he
obtained additional parts from Respondent, including
those which had been on order. Since that time, he has
been able to make any desired purchases. I
Rhodes and employee Larry Gray 12 both testified that,
before the union representatives' visit to Respondent's
premises, they had been able to obtain cash advances
against their wages from Marie Gale, Respondent's book-
keeper. According to the established procedure, when mak-
ing a request for an advance, the employee would sign a
voucher given to him by Gale at the time, and the amount
of the loan would be deducted from the employee's next
weekly paycheck.
Rhodes testified that on or about October 19, the Tues-
day after the union representatives' visit, he again asked
Gale for a cash advance. Gale replied that this was not a
bank and that she could not give him any cash advances at
that time. Rhodes did not again ask Gale for a cash ad-
vance until 2 months later at which time he was successful.
Gray testified that, on one or two occasions before
Settlow's call upon Shumsky, he had requested and ob-
tained cash advances from Gale. However, when he again
asked for such an advance about a week after Settlow's
visit, Gale simply said, "No." Gray was uncertain as to just
when he again was able to make such a loan. He recalled
that he managed to borrow a sum of money from Shumsky
himself in December which was well in excess of what he
could have received from Gale in the way of a cash ad-
vance. However, his recollection as to when he again began
to receive cash advances was most uncertain.
It is clear from the record that, after hiatus periods
which began within a week after the union officials' visit to
Respondent, and which did not exceed 2 months, Gray
and Rhodes were again able to receive cash advances on
their earnings.
Marie Gale 13 testified that she has been authorized by
10 Stewart had not paid an) money towards the purchase price of the
previously ordered goods.
t Although Respondent did not allosw discounts on the purchase price of
the parts it sold to its employees. Stewart explained that he was interested in
obtaining these items from Respondent as he owned a Dodge van and the
materials he bought from Respondent were factory items not readily obtain-
able elsewhere.
(;Gray, a porter get-readY man for Respondent at all times material
herein had signed a union card on October II.
Gale, Respondent's bookkeeper for the past 16 years, is responsible for
Respondent to advance to employees who requested same
cash advances in amounts under $25. Such loans, repay-
ment of which are deducted by her from the employees's
next paycheck, are disbursed from petty cash. She ex-
plained that there are some days when her petty cash is
mostly in the form of checks. If on those occasions she
does not have enough cash to work with, then she cannot
give advances to the employees, and this was the reason
why she had refused Rhodes and Gray at the times in ques-
tion.
Shumsky, in turn, did recall having a conversation with
Rhodes on or about October 15 but blanketly denied hav-
ing questioned Rhodes or any other employee about their
union activities or sympathies and also denied ever having
threatened to close the facility or having made any state-
ment to that effect. He agreed with Settlow's account of
their October 13 interview at which time the Union re-
quested recognition and bargaining.
Service Manager Twaddle testified that, on or about Oc-
tober 15, he had participated in a conversation with two of
Respondent's mechanics whose names he could not recall.
He concedes that he asked them why they wanted a union
in the shop and was told by the mechanics that they want-
ed better benefits, mainly hospitalization. Twaddle had re-
sponded by saying that in his opinion the shop was too
small for a union. This ended the conversation. Twaddle
denied having said any thing further to employees concern-
ing the Union.
Upon the record as a whole, my observations of the wit-
nesses as they testified, and for reasons more fully set forth
below, I credit the testimony of the General Counsel's wit-
nesses, Rhodes, Stewart, Diamond, and Gray, as to their
respective experiences as described above. When the
Union requested recognition on October 13, Shumsky dis-
played immediate hostility. He vehemently and adversely
characterized the various card signers and threw the cards
into the waste basket. Even Shumsky conceded his anger at
that time. Although Sumsky contended that he did not ac-
tually examine the authorization cards while the Union
representatives were in his office or even after they had left
the duplicate set in his office, and that, therefore, Respon-
dent did not have actual knowledge as to which of its em-
ployees had signed cards, this is not supported by the rec-
ord. Shumsky had looked at the cards in the presence of
the union representatives while he was derogating the sign-
ers. In addition, he made no effort to return the cards to
the Union but, concededly, kept the cards with him for at
least the next half hour. At all times thereafter, either
Shumsky or his attorneys were in possession of a duplicate
set of the cards. Accordingly, Respondent is clearly charge-
able, as of October 13, with direct knowledge as to which
of its employees had signed union cards. It further is noted
that the various acts of coercion, interference, and harass-
ment that quickly followed Settlow's visit, such as the
threat of shop closure, the denial of cash advances and the
opportunity to purchase parts, the coercive interrogations
by Shumsky and Twaddle, and other described acts, were
all directed against employees who had signed cards. 14
all office work, maintains Respondent's books and records, prepares tax
returns, and handles petty cash As noted, she also dispensed cash advances.
1570
CHANDLER MOTORS, INC.
Respondent's argument, in its brief, that the temporary
discontinuation of its policy of selling parts to its employ-
ees did not constitute the loss of an employment benefit as
the materials were not sold at a discount is not well taken.
It is clear that the opportunity to purchase these parts was
an important job-related privilege to Rhodes and Stewart.
Stewart required these apparently not readily obtainable
items for his personal use, and Rhodes used the parts as a
means of helping his friends and of earning additional in-
come. Moreover, Rhodes testified that he did some of his
extracurricular automotive servicing in Respondent's shop
on weekends. In such circumstances, he would not have
had to remove the parts from the Respondent's premises
but could have used them there. To Rhodes and Stewart. at
least, the chance to readily obtain what they needed, con-
veniently, and from a dealer they knew, was plainly a bene-
ficial incident of their employment with Respondent
whether or not their purchases were available at a discount.
To deprive them, even temporarily, of this privilege be-
cause of their support for the Union is violative of Section
8(a)(1) of the Act.
It also is concluded that Respondent violated Section
8(a)(l) of the Act by the conduct of Twaddle in threatening
Rhodes and other employees with closure of Respondent's
facility if the Union came into the shop and by soliciting
grievances from Rhodes with a promise to remedy them in
order to influence him not to support the Union. The find-
ing concerning the solicitation of and promise to remedy
grievances stems from Twaddle's statement to Rhodes. in
effect, that Rhodes should have come to him instead of
going to the Union, and that Twaddle would have obtained
from management what the employees wanted. Although
the consolidated complaint does not specifically allege that
Respondent violated Section 8(a)(l) of the Act by such
conduct, in concluding that the Act was thus violated, it is
noted that the found conduct is closely related to matters
actually alleged and that then it was litigated at the hear-
ing. In Uarco Incorporated,15 the Board stated:
[T]he solicitation of grievances at preelection meetings
carries with it an inference that an employer is im-
plicitly promising to correct those inequities it discov-
ers as a result of its inquiries. .... However, it is not
the solicitation of grievances itself that is coercive and
violative of Section 8(a)(1) ... but the promise to cor-
rect grievances or a concurrent interrogation or poll-
ing about union sympathies that is unlawful; the solic-
itation of grievances merely raises an inference that
the employer is making such a promise, which infer-
ence is rebuttable by the employer.
In the instant case, Respondent did not meet its burden of
Respondent did not rebut the testimony concerning the tempoirair)
moratorium on the personal use of the telephone and on sale of parts which
also was effectuated concurrently with the other disputed conduct. In this
connection, it is noted that Respondent did not call as a witness its parts
manager. Hildebrandt, to deny Rhodes' testimony that ltildebrandt had
told him that Shumsky would fire Hildebrandt if he sold any more parts to
the mechanics. In Bechtel Corporation. 141 NL RB 844, 852. fn 9 (196 3 1, it
was noted that, "A litigant's unexplained failure to offer material evidence
warrants the inference that, if he adduced the evidence, it would not support
his position."
' 216 NLRB 1. 1 2 (1974).
rebutting the above inference.' 6
In the foregoing context, I also find unconvincing Gale's
testimony that Rhodes and Gray were denied previously
available cash advances in the relevant period as she, at
that time, had been short of petty cash. The sums requested
from Gale, by her own testimony always below $25, were
quite small, routine in nature, were repaid from the em-
ployee's next paycheck, and, accordingly, could have been
made available from petty cash or some other source with-
out particular dislocation to Respondent. In fact, in De-
cember, by which time Respondent's policy of harassment
had been discontinued, Shumsky personally loaned Gray a
sum that well exceeded the amounts then available from
Gale. These loans were denied to Rhodes and Gray at a
time when Respondent, as found above, was engaged in
other activities calculated to discourage its employees from
supporting the Union, and I find from the record herein
that the temporary refusal of these cash advances was a
part of this pattern.
From the events outlined above, it is concluded that Re-
spondent. based upon its direct knowledge as to which of
its employees had signed union cards, engaged in a course
of conduct calculated to harass and otherwise pressure its
shop employees to discourage their adherence to the
Union. That these policies were discontinued after the fil-
ing of unfair labor practice charges and Respondent's rep-
resentation by counsel does not serve to render them moot.
Accordingly, for the above reasons, I find that Respon-
dent, by its agents specified above, violated Section 8(a)(l)
of the Act by (I) coercively interrogating Brian Rhodes,
William Diamond, and George Anest concerning their
union sympathies; 17 (2) by the threat to the above employ-
ees that Respondent would close its shop if the Union was
designated; (3) by soliciting grievances from Rhodes and
by promising to remedy them if the employees dealt with
Respondent rather than the Union; and (4) by creating less
favorable working conditions in temporarily denying cer-
tain previously available employee privileges, including
personal use of the telephone, the opportunity to buy vehi-
cle parts. and the discontinuation of cash advances.
C. The Alleged Unlavwful Discharges
1. Samuel Thomas-Facts
Samuel Thomas 1' was hired by Respondent on August 4
i See Eithil ( orpratn., 231 NL.RB 431. 445 (1977). Although the Geiner-
al Counsel argues that Twaddle's statement concerning coming to him in-
stead of the Union constituted an unlawful promise of economic benefit. I
find that the siolation found herein is more precisely descriptive of what
had occurred. See Icrle .lnmdsv Chevolei. Inc., 231 NLRB 478 (1977)
7 it is noted that Rhodes was twice interrogated- by Twaddle and
Shumsky. respectively. Respondent asserts that Twaddle's conversation
with Rhodes, as outlined abose. should be viewed in the context of the fact
that the two men were friends. However. in its decision in Quemetco Inc. a
suhbsidiary of RSR Colrporation. 223 NLRB 470 (1976). the Board warned of
the serious error In finding that a "friendly" interrogation did not interfere
with an employee's Section 7 rights. Also. for other cases where conduct of
the itpe engaged in hby Respondent herein has been found to he siolatile of
Section 8(a( I) of the Act, see the Trminal Ta:i Companm . d h a Yello.
Cah Co. 229 NL.RB 643 (1977) (threat of plant closure): Merle Lindic,
(hevrolet. Inc, supra (corcrise Interrogation and unlawful solihcitation of
grieances): and P B and S ( henlial Compaln. 224 NLRB I. 2 (1976)
(coercive interrogation
1571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was in Respondent's employ when, on October 11. he
and the five other employees met with Union Representa-
tive Settlow in the diner where, with them, he signed an
authorization card. Thomas' card was among those shown
to and left with Shumsky by Settlow on October 13.
On October 14, Shumsky asked Thomas to show him his
driver's license."' Shumsky questioned the validity of
Thomas' license and asked Thomas to accompany him to
the office where he showed the license to Gale, the book-
keeper. Gale noted that the license had expired, and
Thomas stated that that was his only driver's license. At
the end of that day, Shumsky told Thomas that he would
have to lay him off because the insurance company would
not cover him if he did not have a driver's license.
By letter dated November I 1, signed by Respondent's
attorney, Thomas was offered "full reinstatement" to his
former porter's position with Respondent. effective as of
November 15, provided he had a valid driver's license. Ac-
cordingly, on Tuesday, November 16. the day after the re-
porting date specified in the letter, Thomas reported back
to Respondent's premises, but Shumsky would not allow
him to work as Thomas had brought with him the same
invalid license.
Thomas, in fact, did not obtain a valid driver's license
until around the first week of March 1977, was thereafter
reemployed by Respondent on March 8, 1977. and was
working for Respondent when he testified at the hearing.
2. William Diamond-- facts
Diamond began to work for Respondent as a mechanic
on September 14. Hie was one of the employees who signed
authorization cards at the diner on October 11, copies of
which subsequently came into Respondent's possession on
October 13.
Diamond was absent from work on October 12 and 13
but returned on October 14. on which date Shumsky asked
to see his driver's license 20 telling Diamond that the insur-
ance company had said that his name was on the "revoke
list." When Diamond produced a valid license, Shumsky
thanked him and walked away.
Diamond testified that he was with Rhodes and Anest
on October 15 when Twaddle asked why they wanted a
union.21
Later that day, as Diamond was collecting his wages at
the office window, Shumsky appeared aind told him that
I homas worked for Resporndent as a porter or maintenanc aie aid "gcl-
reads, Iman, In this lapacity. he mllaintained Respondent's premises. cl.eaned
and waxed a;utiomlhiles. anrd performed certain drising functions, on anld lff
Resplrndent's prelises. Hte w;ls required to mose cars from the showu.. inl
floor and between Respondent's iwo parking ots. tio drive cars away as dies
came off trailers. toi delier them Io c'eriain custmers' addresses. anid to
deliver them for servicing hy outside ntechalnics. From the record herein as
the mailtter is In issue. it is clear Ihat I homas, as he ultimately conceded. w as
assigned to drive Resplordent's cars on public streets. It therefore is found
that he required a .alid driver's license to perform all of his re dular d iies.
ti For reasons tii he discussed helow, Shumsky. at that time. checked the
licenses of all shop emplosecs
: Met hanl s are rteqreq d to have litcnses in Iheir work as thci alsot tlst
drive vehicles
: As nioted above [ssaddle generall? ctnceded having conlducted ihi,
interiogation.
things were slow "up front," 22 and he would have to lay
Diamond off. If business picked up he would call Diamond
back. 23
It is undisputed that Respondent placed an advertise-
ment for an auto mechanic in the help-wanted section of
the October 21 edition of a newspaper which was seen by
Diamond. On October 22, Diamond returned to Respon-
dent's premises to pick up his last paycheck and return his
uniform. While there, he told Twaddle, the service manag-
er, that he had seen Respondent's help-wanted ad and
asked if he could apply. Diamond testified that Twaddle
had replied that he would let him fill out an application but
could not hire him as someone above Twaddle did not
want him back.2'
In response to a letter dated November II, also from
Respondent's counsel, offering Diamond full reinstatement
to his former mechanic's position, Diamond returned to
work for Respondent on November 15 where he was em-
ployed at the time of the hearing.
3. Respondent's evidence concerning the discharges
Respondent contends that Thomas was terminated sole-
ly because he lacked the valid driver's license required for
his work; and that, although Thomas was offered reinstate-
ment in mid-November conditional upon his having such a
license, when he appeared on November 16 in response to
this offer, he was still without one. Accordingly, although
Diamond, who also was recalled, was put back to work at
that time, it was not feasible to reinstate Thomas until he
obtained the necessary license. Respondent points out that
on March 8, 1977. within I week of the time that Thomas
did get a new license, he was reemployed. Respondent, also
noting that Jose Molier,25 a nonunit sales employee not
involved in the Union's campaign, was also terminated at
that time and for the same reason as Thomas, and that
approximately 2 years before another salesman also had
been discharged for not having a license, asserts that the
evidence does not establish that Thomas was fired for hav-
ing supported the Union.
Respondent contends that Diamond was terminated for
excessive absenteeism and, upon the pointed recommenda-
tion of its insurance carrier, because of his poor driving
record.26
2! I he "up fronlt reference apparently t as tio the sales showroom
-' Mechanic Rhodes. however. testified that, in the week following
l)ianmonds' ;laoff, Rhodes worked overtime on four colnsecutive nights as
opposed Ito his prior overtime schedule. when things were busy. of working
but ine nighl ever' other month. Rhodes also related that. after Diamond's
departure. a new mnechanic, Joe Getz, was hired. Rhodes, without cont;adic-
tion. denied that Getz was nierely a lubrication inan testifying that he also
had seen him do tuneupsand other mechanictI wsork (,eti was still eliplosed
by Respondent at the time of the hearing.
2: As 1 waddle recalled the incident, when Diamond asked for his job on
()ctober 22. r addle merely told him to complete an application, and it was
I)lamond who had opined that Shumsky would not hire him back Based
upon Respondent's pattern of conduct in this matter and noting that Re-
spondent could have recalled Diamond instead oi advertising for and hiring
new emiployees. Diamond's version of his Octoher 22 consersation with
I iaddle is credited.
:' The consolidated complaint does not allege thi It Moher'< dischargc
wrias UnlAi' fill
I'' Shuinsks at first testified that Diamon)i d had beenl Bled because he. tioo
dlid nlotl hliist i ialid drirer's license, buti when it Aas indicated that at the
1572
CHANDI.IER MOTORS, IN(
Shumsky and Respondent's bookkeeper. Gale, traced
the Respondent's awareness of the driving records and h-
censes of its shop employees to recently effectuated poli-
cies of its insurance carrier for the past 3 years, Universal
Underwriters Insurance Company, and contend that the,
acted to check licenses and to release Diamond consistent
with the requirements of that insurer.
Prior to September, only Respondent's salesmen had
been obliged to fill out certain report cards for the insurer.
These cards, preprinted by the carrier, required informa-
tion as to the names, addresses, driver's license numbers,
and license expiration dates of Respondent's covered em-
ployees and were used to establish whether such employees
actually did have valid driver's licenses. However, as a
number of Respondent's mechanics had damaged compa-
ny-owned cars in the course of their employment, the in-
surer, in September, also had extended its driver review
policy to cover Respondent's shop employees. Accord-
ingly, in September, for the first time, Respondent was re-
quired to submit license report cards to the insurer with
respect to its service employees.
On October 5, Gale received a telephone call from Brsan
Campbell, a field representative of Universal Underwriiers
Insurance Company. When Campbell began to outline a
series of complaints about the driving records of certain of
Respondent's employees. Gale transferred the call to
Shumsky. Campbell testified that, when Shumsky an-
swered, he told Respondent's president that he had betore
him abstracts of the driving records of several of Respon-
dent's employees and that those records were atrocou,.
Campbell then began to read off the summaries of the driv-
ing records of Brian Rhodes, Diamond. Thomas, Jose Mo-
lier, one of Respondent's salesman, and other employees to
be considered below. In the case of Rhodes, his iccord
showed that, from February 1974 until July. he had becen
involved in 13 moving infractions. 5 of which resulted in
court action, and that his license had been suspended t, ice
and restored twice. Thomas' record showed his license had
been suspended once from late April 1975 until late in Junc
when it was restored. His abstract did not shosw that
Thomas' license at that time was under any penahlts.
Diamond's abstract revealed that his license had been sus-
pended in December 1973, that he had been convicted of
operating a vehicle while his license was still under suspen-
sion about 9 days later, that his license was suspended
again in April 1974, and that it was restored again it April.
At the time of his discharge in October, Diamond's license
was in effect. The record of Molicr, the nonunit employve
who was also discharged at or about the same time as were
Diamond and Thomas, showed that his license was then
under suspension and had been since August 22.
The record of Respondent's other shop employees, also
reviewed by Campbell during his telephone conveisatior.
with Shumsky on October 5, were of like character. Ac-
cordingly, George Anest's abstract showed that, in the 2-
year period ending in February. there were three adveise
entries, including one which involved court action. and
time in question Dianmond. in f ati did ha te ,nit. Shuimkis 'chally i his
testim,,n to that set fortih .ah,.'e
that his license had been restored. apparently after a prior
suspension which predaited the period covered by the ab-
stract. Larry (ira's record for essentially the same interval
contained five adverse entries, three of which involved
some form of court action. No action was taken hy Re-
spondent with respect to the job tenure of Rhodes. Anest.
and Gra,.s
Shumsk' testified that, on the basis of Campbell's report
of October 5. he began to check the licenses of all his shop
employees on or about October 14 discovering the de-
scribed results.2:
1'he Respondent, in support of its contention that Dia-
mond had been discharged. in part, because of his exces-
sive absenteeism, introduced his timecards for the approxi-
matel, I month that Diamond had been with Respondent
prior to his termination. As Respondent indicates in its
brief, these cards reveal that I)iamond had been absent for
more than 25 percent of the time, well in excess of the 3 or
4 days conceded by Diamond in his testimony. However, it
also was stipulated that, among Respondent's other shop
employees, Anest had been absent from work for 7 days
from the period ending June 3 to the week ending October
14, while Stewart had been absent from work for at least 6
davs 2: from the beginning of June until September 23.
'he second reason given by Respondent for Diamond's
termination was his driving record, which, with the compa-
ratixe records of other of Respondent's shop employees at
that time, has been set forth aboe.?"
4. Discussion and findings concerning the discharges
The General Counsel contends that both Thomas and
Diamond were terminated for having signed union cards as
part of Respondent's antiunion campaign in mid-October,
and that Respondent further violated the Act when it re-
fused to put Thomas back to work in mid-November when
he reported for work pursuant to Respondent's written of-
fer.
1 tie iri, riord ,ri ,r i. , L i , ill hI tl! c I ,re ti lng cmphi',ee, t ihe tlime
Of ( ,inibeh ld' itl , I shui k. It' the Lourn r c-de numinher 4 it h
the , tilndi lltci no1l:tllil *Iscep o t uf ct) Lars" C'ampheli explanlle ilia!
hcsc Itilic- hld I.ccnl 1llhd n :;i .ktrd. ln ,Ii ith his conmpan,. filr-lsM-
; ,lth i - ,1 n foir ,ir, crs , .ucreO tluldeT IIt po!icies ( ides I aInd 2 m inial
that tihe driCr i., ,,l t le or [u ;iI- uwIl .in,, rcpenilelk and ( ode 3 I,
upplitd 'hit tC t auc t of lthe ir, I ,l -ichIi, out ns In ( .*de I fr 2 ,41i nllon,
tihe artri. c- Ti iil11h 11 \., 'in ( ,,de 3 , assigned! 1re i Lm'r clplOIcl
i, asked to h,.ll tIl ' ,,i-cr s, _::idcd a ,.uh t hii nperating hahdi " hnt -odc
4 I' .ippied. the de der is :tke'd iL keep the Indisidual thus raied it ut (i,
i, mpan -t--pncd Ls , '1 s( I .: pileil tcs:fied that ( '.. 4 is iiio riequienilt
i,.ct I Ihe iei- ' .- :I J ,, ,i a i ,,ad drlier's flcite ti -eter. a, Ef
(t:ober I l ias it, i-,1. did a ni h.ac s:di d.ieri's Iin-Ce ( .inp-
bell est ifii_ t., i I Oi d a,- .. t ., tlh. It , io at ud.llct aln inured :np[,el to
take il\ .rtl\ r InTl } ..ll~ Li-. i-ere,! driver,. hui (,iotl d onl[ makie recom
nlctndaihel,
Shtllrlk l ai[llc tlh, delai. hc!',ctn Ihe time he receled thile inf(,rma-
lin frolm ( . imphell :tn the tlmt he Itoo.k atilon to his hlb schcdule
()ne t [ Slc.ar;'- cicki, t Ilntards oi that perted was mi-in,
t Shullm k. t,;lf: I!!. , the irl usll emploiire, whouse reci-rdi, uerc
discluscd, i '·i, cptcs oif tlc ii .!h :ict of the drl ip, t ictrdts if Dlinla nd
anild Ihuomas iru i cqlt.i . ,ted f .ml ahell dilrllig their clXtt:nnllln A ;i,
Repondient h.ad iT i pr-siwln, requc,-tId the recoIrd of the s.ileMi.ill iii,-
chareedi 2 't.rs cachitr Ii i :im h.aint .: liceuse
1573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. William Diamond
Respondent. as noted, contends that Diamond was ter-
minated because of his excessive absenteeism and the poor
driving record that Campbell, for the first time, had
brought to his attention on October 5. Shumsky explained
his decision to discipline Diamond for his absenteeism
while retaining other employees who also had poor atten-
dance records by noting that Diamond had been in his
Company's employ for only a month by October 15, and
that Respondent already had an absenteeism problem
which it did not want to compound by hiring a new truant.
It is well established that the existence of even a proper
reason for discharge is no defense if the discharge was ac-
tually made for an improper purpose. If an employee's dis-
charge was even partially motivated by his union activity,
there is a violation of Section 8(a)(3).3
Upon the record herein, I conclude and find that Re-
spondent terminated Diamond's employment for discrimi-
natory reasons and, by so doing, violated Section 8(a)(3)
and (1) of the Act. Respondent did not place in issue
Diamond's ability as a mechanic, and his records for ab-
senteeism and driving, as described above, were compara-
ble to other of Respondent's shop employees who were
retained. In fact, neither of these reasons was considered to
be so serious as to preclude Respondent, through its
attorney, from recalling Diamond to his employment
approximately I month after his discharge. It further is
noted that Diamond's termination occurred fully 10 days
after Respondent received news of his questionable driving
record, but just 2 days after Respondent learned that he
was among the employees who signed authorization cards,
and also was coincidental with Respondent's above-noted
campaign of antiunion harassment and interference. In the
course of these activities by Respondent, Diamond was
one of the employees coercively interrogated by Twaddle.
Moreover, it appears that, in abruptly terminating Dia-
mond on October 15, Respondent even created a manpow-
er shortage for itself. According to the testimony of
Diamond's fellow mechanic, Rhodes, in the week immedi-
ately following Diamond's layoff, Rhodes' overtime sched-
ule had greatly increased, and it had been necessary to
publicly advertise for and hire an additional mechanic.
Thus, there appears to be no factual basis for Shumsky's
explanation to Diamond at the time of his separation that,
in effect, business was slow. It is also clear that the insur-
ance company's evaluation that Diamond should be kept
out of company cars was not decisive as several other of
Respondent's employees who were similarly rated contin-
ued to work without interruption.32
For the above reasons, I find that, by terminating Dia-
mond, Respondent violated Section 8(a)(3) and (1) of the
Act.1 3
1 John Klann Mosing and Trucking C(ompunv v. N.L.R.B.. 411 F.2d 261
263 ((' A 6, i969): A'.l. R t v. George J. Roberts d Sons, Inc. d, '/a I he
Roherts Pre., 451 F.2d 941, 945 ((.A. 2. 1971).
l: See 7etas Industries. Inc.. Houstron Division, Re7ady Mix Concrete Plants,
188 NLRB 845 (1971)r
3 Although Respsondenti, on November I I1 after the service of at least the
first unfair labor practice charge herein, reinstated Diamond. in view of the
findings herein. this is relevant to the remedy rather than to whether the Act
b. Samuel Thomas
In agreement with Respondent, it has been found above
that Thomas required a valid driver's license to properly
perform his duties, which he did not have either on Octo-
ber 14, when he originally was terminated, or on Novem-
ber 16, when Respondent assertedly declined to put him
back to work on the ground that he had not met the licens-
ing prerequisite of its reinstatement offer to him.
An important argument that might have inured to the
General Counsel in establishing that Thomas' discharge
was unlawful, although at that time he was unlicensed,
would be that Shumsky had learned of Thomas' unlicensed
status on October 5 but tolerated the situation, and had
delayed action to verify this and to stop his unlicensed
driving until October 14, just 1 day after learning that
Thomas had signed a union card. This, however, was not
the case here.
Unlike the situation with Molier, the abstract of
Thomas' driving record before Campbell during his Octo-
ber 5 conversation with Shumsky did not show that
Thomas' license was not valid. Campbell credibly testified
that it was the information contained on the driving record
abstracts of Respondent's employees that had served as the
bases for his complaints to Shumsky at that time. However,
there was no entry on Thomas' record abstract that his
license at that time had been suspended, had been revoked,
or had expired. Thus, there is no evidence that Shumsky
was placed on notice on October 5 that Thomas was ineli-
gible to drive, and that Shumsky had permitted Thomas to
work without a license until discovering his union activity.
In fact, of Respondent's several employees considered,
Thomas' driving record, unpraiseworthy as it may have
been, was far from the worst. Accordingly, I do not find
that Campbell had given Respondent such notice on Octo-
ber 5 as would have required Shumsky to immediately
check the status of Thomas' license in order to comply with
the statutory mandate relating to the licensing of drivers on
which Respondent relies. In fact, on the same day that
Respondent learned that Thomas did not have a valid li-
cense, it terminated him.3' Thereafter, consistent with this
position, it conditioned its November II offer of recall
upon his having obtained such a license and ultimately
reemployed him shortly after he received one.
The circumstances of Thomas' discharge are distinguish-
able from those of another auto dealer's porter, also singularly
enough named Thomas, in Claborn American, Inc.,35
where a violation of Section 8(a)(3) and (1) was found. In
that case, respondent had had knowledge of the employee's
unlicensed status but had permitted him to continue work-
ing restricted solely to his nondriving functions. However,
after it learned that he had signed a union card, the em-
ployee was given a driving assignment, was promptly ar-
rested, under apparently suspicious circumstances, and was
terminated. Here, unlike Claborn American, Respondent
had no prior knowledge of Thomas' unlicensed status, was
was violated In the first instance.
4 rThis treatment differs from that afforded Diamond, who was not re-
leased until the end of the week although, as it happened, the workweek
ended but I day later.
) 202 N RB 1086. fn. 3 (1973).
1574
CHANDLER MOTORS, INC
not on immediate notice to check out that particular point.
and discharged Thomas promptly on learning that he did
not have one. Moreover, Respondent in this matter, unlike
in Claborn American, never evidenced a willingness to con-
tinue Thomas in its employ in a nondriving capacity. Even
when reinstatement was offered through Respondent's
counsel in November, Thomas, unlike Diamond, was not
allowed to work because he did not have a license."
It further is noted that Molier,37 the salesman, was also
terminated at or around that time for not having a license
as had been another of Respondent's salesmen about 2
years before. While their job category and duties differed
from those of Thomas, a license, nevertheless, was required
of each to enable full performance of their respective re-
sponsibilities.
For the above reasons, even'in the context of the unfair
labor practices found herein, a preponderance of the evi-
dence does not establish that Respondent discharged
Thomas on October 14 or refused to reemploy him on No-
vember 16, in violation of Section 8(a)(3) and (1) of the
Act, because of his union activities or sympathies, but,
rather, because at neither date did he have the license nec-
essary for the complete performance of his duties.
D. The Alleged Refusal To Bargain
I. The appropriate unit and the Union's majority status
Based upon the stipulation of the parties at the start of
this hearing, I find that the following unit is appropriate for
purposes of collective-bargaining within the meaning of
Section 9(b) of the Act:
All service and parts employees employed by Respon-
dent at its Linden, New Jersey, facility, including me-
chanics, get-ready employees and porters, but exclud-
ing salesmen, office clerical employees, professional
employees, guards, and all supervisors, as defined in
the Act.
It also was stipulated by the parties that on October 13.
the date upon which the Union requested recognition and
bargaining, the above-described unit consisted of seven
employees. On October 13, the union representatives gave
Respondent copies of six authorization cards, all dated Oc-
tober 11, signed by Brian Rhodes, William Diamond, John
Stewart, Samuel Thomas, Larry Gray, and George Anest.
The authenticity of these cards, the status of these employ-
ees as members of the above-described unit, and the
36 Although Respondent's bookkeeper. Gale. testified that report card In-
formation concerning the drivers' licenses of each of Resppondent's emploh
ees. including expiration dates. had been submitted to the insurance compl-
nv in September. the record does not sho'A that such information in ain) v .s
had been brought to Respondent's attenlion on October 5 or at ann time
before Shumskv checked Thomas' iicene on October 14.
I lhe record indicates that. by the time of Campbel's convsersation with
Shumsky, Molier was already on the was out. Campbell testified that during
their talk. based upon what Shuimisks had told hint he made the follow ing
notation on the abstract of slolter's drivs ng record then before him: "Marie
(office) is handling with Senmiour Shumsks (dealer) Stales that this will
probablN be the reason for letting the man go as he is hanging hb his fingcr
nails and sliding towards the dicor"
Union's majority status when recognition was requested
have not been challenged by Respondent's evidence. The
parties stipulated that Tony Hildebrandt, the parts manag-
er, was not a supervisor within the meaning of Section
2(11) of the Act. Accordingly, I find that in October he was
the remaining seventh employee in the unit of service and
parts employees found appropriate herein. s8
It therefore is concluded that as of October I I, and at all
times thereafter, a majority of the employees of Respon-
dent in the appropriate bargaining unit had designated and
selected the Union as their representative for purposes of
collective bargaining.
2. The alleged refusal to bargain and the applicability of
a bargaining order
In determining whether an employer has unlawfully re-
fused to bargain by an outright refusal to recognize the
union representing a majority of its employees in an appro-
priate unit, as is the case here, the employer's conduct
when faced with the Union's bargaining request must be
assessed. If in such a situation the employer withholds rec-
ognition while engaging in serious unfair labor practices, it
also violates Section 8(a)(5) of the Act.3 9
In the instant case, Respondent engaged in unfair labor
practices of serious character which clearly were calculated
to have a lasting impact on employees.
In N.L.R.B. v. Gissel Packing Co., Inc., et al..40 the Su-
preme Court, authorizing the Board in certain circum-
stances, to issue bargaining orders, included the following
test:
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies.
though present, is slight and that employee sentiment
once expressed through cards would, on balance be
better protected by a bargaining order, then such an
order should issued....
In mys %iew, the unfair labor practices committed by Re-
spondent, which began within 2 days after the Union re-
quested that Respondent bargain with it as the representa-
tive of its service employees, are sufficient under the above
standard to ju.stify a finding that Respondent has violated
Section 8(a)(5), and a bargaining order should issue.
As detailed above, Respondent here engaged in serious
violations of the Act. which were calculated to defeat the
Utnion's organizationa! efforts and to undermine ils status
among the employees. Within 2 days of the Uinion's re-
quest for recognition, Respondent unlawfully terminated
one of the seven members of the appropriate unit, coercive-
ly interrogated other employees. solicited and promised to
remedy any grievances. and threatened employees that its
i t t the tinle Ihe tlinllt rcpresentiti.es requested recognition fitor
Shumnsk,, thes .1stated thi ithe also represented the Respon.lent's hods
hoip enmploisees Respondent. hescer. at the time in question. did not have
a hods shop rhe ippripri tcenes , of the unit requested ias not negated bh
the reference to inorexstilllg htdl ship emplo,ees as the varlllion was hut
l3 ,-,iIiet PIri. It-. 119 NI RB 298, 3(1 ( 197 9 : Sh. R,;r Slpierrarttz',
Inc 231 NI RB Six) 50)7 1977)
} 3q I S I' S 614 61
'
119691
1575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop would be closed if the Union were selected. In that
period, Respondent also created less favorable working
conditions by denying its employees previously available
privileges, such as cash advances, personal use of the tele-
phone, and the opportunity to buy vehicle parts. Although
by its letter dated November I , Respondent made an un-
conditional and valid offer of reinstatement to Diamond,
as was noted under similar circumstances in Freehold
AMC-Jeep Corporation. 230 NLRB 903, 909 (1977), "nei-
ther these offers lof reinstatement], nor the Board's remedi-
al authority to lay the ground work for compulsory rein-
statement adequately insulate the election process from the
effects of the discrimination involved here." 41
In General Stencils. Inc., 4 2 the Board found a threat to
close the employer's business made to only I of 32 employ-
ees to be of sufficient consequence to warrant a bargaining
order. The Board. in that matter, noted that in the "reality
of industrial life" so serious a threat, but made but to a
single employee, would affect all employees in the selection
of a union as the matter "all but inevitably" would be dis-
cussed among them.4 3 Here, the threat was made to several
employees.
The conduct of Respondent as found herein is of an
enduring nature sufficient to cause defections from a union
and which would tend to destroy its majority status. There-
fore, it is concluded that, by its refusal to bargain with the
Union, Respondent, since October 15, has violated Section
8(a)(5) and (I) of the Act, and that a bargaining order is an
appropriate remedy in this proceeding.
IV lit I, i 0 -( l(i I t Nf AIR I H()BOR PR4(ll(I t S I PON
( OIMMt R(CE
Respondent's unfair labor practices set forth in section
III, above, occurring in connection with its operations set
forth in section 1. above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing conlmerce and the free flow
thereof.
(oN() IIt SI()NS o0 L.s
I. Respondent isan emploxer engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
In Ir,,hold 4M It -JeeT, (1 plratio. supra. although the Botard did rilo
agree ,ith the Adnlinistrati. r I.aw Judge that Sec 8(a.)(5) of the Act had
been ,iolated, it nonetheless found that the remedial hargaininr ordet he
advocaited wa.s appropriatte
42 196 NL.RB I 10. 1110 (19721. enforcemllnt denied 472 F.2d 170 ((1 A
2. 1'972)
4[ MS, rc s'ee rt Inducori In r, 2)03 Nl iRB 1 196 1973). enfd 497 1 2d
919 i( ,A 2. 1974) ltio ted Buatn, s. Si !:c l, 4 , I-)iio f f t I llot,, Bttl,
Sat.cm,. In, .lS:,.sr',,lrl ,of /Liftf Inuwrwi,, In, . 20S Nl RB 532 It)
119731, remanded 497 ' 2d 2(,2 (( A (1 197
4
) Also see Ihlc lert,,tina ifl
'omrnfla . d h' a ),ll,', ('ah, ( . 22`9 N I.RB at 641 Inr. 1,
4' In addition. the iers s.iilil size ,f, the bar.gaining unit ',oull contllrlth te
iirther t, redutilng :inx slight poSlihili of erasing the eftel of the alif il
labor rX. es byh tra ditional miretli) Sece (uriin SMlthci,,l S ,¥l enfS A . I/ i
228 NIRB 996. 100tS fn 18 (I977), aid cases cited theleio.
of Section 2(5) of the Act.
3. By the following conduct. Respondent has engaged
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) of the Act:
a. Coercively interrogating its employees concerning
their union sentiments.
b. Soliciting grievances from an employee and promis-
ing to remedy them in order to induce employees to refrain
from supporting the Union.
c. Threatening employees with closure of its shop to dis-
courage support for the Union.
d. Creating less favorable working conditions for its em-
ployees by revoking previously available privileges in order
to induce them to refrain from supporting the Union.
4. By discharging William Diamond on October 15, Re-
spondent violated Section 8(a)(3) and (1) of the Act, but
Respondent did not violate Section 8(a)(3) and (1) of the
Act when it discharged Samuel Thomas on October 14
and declined to reinstate him on November 16.
5. All service and parts employees employed by Respon-
dent at its Linden, New Jersey, facility, including mechan-
ics, get-ready employees and porters, but excluding sales-
men, office clerical employees, professional employees,
guards, and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since October 11, the Union has been the duly desig-
nated representative of a majority of the employees in the
aforesaid collective-bargaining unit.
7. By refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of its
employees in the above-defined unit, Respondent, since
October 15, has violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
lHaving found that Respondent discriminatorily termi-
nated, but subsequently reinstated, its employee, William
Diamond. I shall recommend that Respondent make him
whole for the loss sustained by reason of the discrimination
against him. Diamond's backpay period shall run from Oc-
tober 15, the date of his termination, to November I!,
when a letter was sent to recall him to his former position.45
Backpay shall be computed in accordance with the formu-
la set forth in F W. Woolworth Companv,46 and shall in-
clude interest in the amount and manner prescribed in
Florida Steel Corporation.47
It also is recommended that, upon request, Respondent
recognize and bargain collectively with the Union as the
exclusive representative of all its employees in the appro-
priate unit with respect to rates of pay, hours, and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
4i /rllild A M-d-Jcep ( or-oration. 230 NLRB at 910.
490) Nl RB 289 (1950).
4231I Ni RB O51 (1977)
1576
CHANDLER MOTORS, INC.
As the unfair labor practices found herein strike at the
heart of the Act, a broad cease-and-desist order shall be
recommended precluding Respondent from "in any other
manner" interfering with, coercing, or restraining employ-
ees in the exercise of their rights guaranteed by Section 7 of
the Act.48
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issued the following rec-
ommended:
ORDER 49
The Respondent, Chandler Motors Inc.. Linden. New
Jersey, its officers, agents, successors, and assign. shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union sentiments.
(b) Soliciting grievances from employees and explicitly
or impliedly promising to remedy or adjust them in order
to induce employees to refrain from supporting Amalga-
mated Local Union 355, or any other labor organization.
(c) Threatening its employees with closure of its shop
because of their union activities.
(d) Creating less favorable working conditions for its
employees by discontinuing job-related privileges because
of their union activities.
(e) Discharging or otherwise discriminating against its
employees because of their union activities or sympathies.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole William Diamond for any loss of earn-
48 N.LR.B. v. Enrwistle Manufacturing (Cornpant. 120 F:2d 532 1( A 4
1941).
49 In the event no exceptions are filed as provided bs Set 102 46 of the
Rules and Regulations of the National Labor Relatirns Board. the findlin,,.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted hb the HBoard and become
its findings. conclusions. and Order. and all objections thereto dhadll he
deemed waived for all purposes
ings he may have sustained by reason of the discrimination
against him in accordance with the section of this Decision
entitled "The Remedy."
(h) Preserve and, upon request, make asailable to the
Board or its agents. for examination and copying, all pay-
roll records. social security payment records. timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Upon request, bargain collectively with Amalgamat-
ed l.ocal Union 355 as the exclusive bargaining representa-
tive of the employees in the appropriate bargaining unit
and, if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate collective-
bargaining unit is:
All service and parts employees employed hb Respon-
dent at its Linden, New Jerses. facility,. including me-
chanics, get-reads employees and porters, but exclud-
ina salesmen, office clerical employees, professional
employees. guards. and all supervisors. as defined in
the Act.
(d) Post at its facilitv in Linden, New Jersey, copies of
the attached notice marked "Appendix." so Copies of said
notice, on forms provided by the Regional Director for
Region 22, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall he taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 22. in writ-
ing. within 20 daNs from the date of this Order. what steps
Respondent has taken to comply herewith.
II Ft RitER IS ()RDFRI i D that so much of the complaint as
alleges unfair labor practices not found herein be dis-
missed.
' I1 Ih. cent that IhiS ()rder I, enforcrd h, a Judgmnent ol a t notcd
Sliate ( Iurl of Appc.ls the v. irds in the notice rcading "Posted h ) Order
of the .Naton.al I abhr Rclili l Heaird" shall read lo,ried Pursuanr ri .1
.Jdu tcint .f the t niled Sinc,, ( -ir of -.pprcal I nforlrlr. arr Order (orf thc
N.alIOllI I 1hor Rclealn Bi rd" H
1577