Darby Cadillac, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1968

169 N.L.R.B. 315 (N.L.R.B. 1968)

DARBY CADILLAC, INC.
Darby Cadillac, Inc . and Lodge 850, International
Association of Machinists and Aerospace Workers,
AFL-CIO
Darby Cadillac, Inc. and Art J. Lancaster, An In-
dividual , Petitioner and International Association
of Machinists and Aerospace Workers , Lodge 850,
AFL-CIO. Cases 16-CA-2989 and 16-RD-409
January 24, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 24, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
consolidated proceedings, finding that Respondent
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respond-
ent had not engaged in certain other unfair labor
practices, and recommended dismissal of these al-
legations of the complaint. He further found that the
unfair labor practices, which occurred during the
critical preelection period, interfered with the
decertification election held in Case 16-RD-409,
and recommended that it be set aside. Thereafter,
exceptions to the Trial Examiner's Decision and a
supporting brief were filed by Respondent.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent , Darby Cadillac, Inc.,
Oklahoma City , Oklahoma, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner ' s Recommended Order.
IT IS FURTHER ORDERED that the election held on
March 15 , 1967, among Respondent 's employees
at its Oklahoma City, Oklahoma, location , be, and
it hereby is, set aside.
315
[Direction of Second Election' omitted from
publication. ]
I An election eligibility list, containing the names and addresses of all
the eligible voters , must be filed by the Employer with the Regional
Director for Region 16 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election No ex-
tension of time to file this list shall be granted by the Regional Director ex-
cept in extraordinary circumstances Failure to comply with this require-
ment shall be grounds for setting aside the election whenever proper ob-
jections are filed. Excelsior Underwear Inc , 156 NLRB 1236.
TRIAL EXAMINER'S DECISION AND REPORT
ON OBJECTIONS TO ELECTION
SAMUEL M. SINGER, Trial Examiner: These are con-
solidated cases heard before me in Oklahoma City,
Oklahoma, on September 6, 1967.1 In Case 16-CA-2989
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 16, issued a
complaint on June 27, based on charges filed by Lodge
850 (the Union) on May 10. The complaint alleged that
Respondent violated Section 8(a)(1) and (3) of the Act
through interference, restraint, and coercion, including in-
terrogation and promises of benefits; and by unlawfully
discharging an employee for protected concerted and
union activities.
Case 16-RD-409 arises out of a decertification elec-
tion conducted by the Regional Director among Respond-
ent's employees on March 15, which the Union lost by
a vote of 22 to 20 (with 2 ballots challenged). The Union's
objections to the election, filed March, 20, were in-
vestigated by the Regional Director, who on May 19 is-
sued his Report on Objections recommending the over-
ruling of three objections and a hearing on two others. No
exceptions having been filed to the Regional Director's
report, the Board on June 5 adopted its recommenda-
tions. In view of identity of issues raised in the represen-
tation and unfair labor practice cases, the proceedings
were consolidated for hearing before a Trial Examiner.
All parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce relevant evidence.
Briefs were filed by General Counsel and Respondent.
Upon the entire record,2 and from my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZA-
TION INVOLVED
Respondent, an Oklahoma corporation with its office
and place of business in Oklahoma City, Oklahoma, is en-
gaged in selling and servicing automobiles. During the
past year, a representative period, Respondent received
goods valued in excess of $50 ,000, directly from points
outside Oklahoma. During the same year , Respondent
had a gross volume of business from sales and servicing
Dates are 1967 throughout unless otherwise stated.
' Transcript corrected by my order, on notice , dated October 4 By
agreement of the parties at the hearing , Respondent 's name was corrected
to read as it now appears in the caption.
169 NLRB No. 52
316 DECISIONS OF NATIONAL
of automobiles in excess of $500,000. I find that at all
material times Respondent has been and is engaged in
commerce within the meaning of the Act.
At all material times , the Union has been and is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The Union was certified as the statutory bargaining
representative of Respondent's employees on February
17, 1966. Although the parties thereafter met on various
occasions to negotiate a contract, they were unable to
reach agreement. In February 1967, employee Lancaster
circulated a petition to decertify the Union. As previously
noted, the Union lost the March 15 decertification elec-
tion by a 22-to-20 vote, and the Union then filed election
objections. General Counsel relies on two preelection in-
cidents to establish the complaint allegations of inter-
ference, restraint, and coercion.
1. The March 8 incident
In compliance with an amendment to the Wage and
Hour Law applicable to car dealers, Respondent in
February 1967 began to pay its employees on an hourly,
biweekly, instead of semimonthly, basis. Since this
changed method of payment caused "confusion" among
the employees, some went to the company office for ex-
planation . Employee Byrd testified that after seeking
clarification of the matter at the union hall, he was called
to the office by Office Manager Padgett who told him,
"Slater [Byrd], if you [want] to know anything, anything
of that sort, come in and ask us. We are always ready to
help you and always ready to answer your questions and
help you with your problems." Byrd replied, "Well, the
reason that this came about at the Hall [was that] a man
[at the hall] asked me how much was I making per hour
and I couldn't give him any definite answer ...." Byrd
admitted that after Padgett's explanation he knew
"somewhat" more about his wage computation; that he
had gone to Padgett's office on prior occasions to consult
on wage matters; and that this meeting was "about the
briefest" of all he had had. He testified that he could not
"recall" Padgett asking him why he went to the Union.
Padgett testified that he had spoken to Byrd about his
paycheck on several prior occasions; that he called Byrd
in his office on March 8 in response to a message Byrd
had left with his secretary about seeing him regarding his
pay; that at the outset of the March 8 meeting Byrd ex-
plained that "he didn't mean to go to an outsider, but one
of the men at the Hall had told him he should have his
paycheck checked over again for the hourly rate"; and
that after advising Byrd that he was at liberty to heck the
matter "anywhere he wanted," he (Padgett) agreed to "go
over with him again on it and help him to understand" his
pay computation. Padgett denied questioning Byrd about
his union membership, sympathies, or activities.
3 Prior to April I, Respondent 's employees worked half days on al-
ternate Saturdays . Soon after the election (around April 1), however,
Darby announced that the Company would discontinue all Saturday work
since his chief competitor , a nearby Lincoln car agency, began closing on,
that day. Darby also announced that Respondent's mechanics would
receive a raise- an increase in commissions from 40 to 45 percent- in line
with similar increases given by competitors.
LABOR RELATIONS BOARD
Padgett's testimony was forthright, straightforward,
and carried the ring of truth. In any event, Padgett im-
pressed me as a more reliable and credible witness than
Byrd, and I credit his version of the incident.
I find that the record does not support the allegation in
the complaint that Respondent (through Padgett) unlaw-
fully interrogated an employee concerning his union
membership, activities, and desires.
2. The March 14 incident
On March 14, the day before the decertification elec-
tion, employees Allerman, Edwards, and Wilburn were
standing by the coffee urn discussing the Union. Aller-
man testified that when he mentioned that he "wished
Saturday would come along," Body Shop Foreman Lunn,
who happened to be nearby and overheard the remark,
stated that if the employees "should vote `no' on the
Union ... you'll get your Saturday off." Edwards
testified that in response to Wilburn's question "if he
voted no in the Union what it meant," Lunn said "if we
vote this union out, then everybody will get an increase in
wages." Wilburn quoted Lunn as saying that if they
turned down the Union, "Mr. Darby [the owner] would
give us all a raise and every Saturday off."3
Lunn denied the remarks attributed to him by the em-
ployees. He testified that he did not normally drink coffee
around 6 p.m., closing time (the time fixed by one of
General Counsel's witnesses), thereby attempting to
negate that he had any reason to be at the site of the
discussion (the coffee urn). He also testified that he had
no "authority" to grant or promise the type of benefits
mentioned by the employees.
I credit the testimony of General Counsel 's witnesses
rather than that of Lunn. Allerman and Edwards im-
pressed me as sincere and disinterested witnesses, as op-
posed to Lunn, an interested witness whose conduct was
directly in issue . Edwards is no longer employed by
Respondent, having quit its employ, and there is no indi-
cation whatsoever that his leaving was accompanied by
ill feeling against the Company. Nor is there any reason
to believe that Allerman, still employed by Respondent,
would jeopardize his employment by fabrication under
oath concerning his employer.'
I find that Foreman Lunn's March 14 statement to
three employees that if they voted out the Union in the
forthcoming election they would be given every Saturday
off and would receive wage increases, constituted unlaw-
ful interference, restraint, and coercion. Lunn's statement
coerced the employees in their unfettered exercise of
their rights to freely decide whether they wished con-
tinued representation by the Union. It was especially
coercive because made on the eve of the decertification
election. The fact that Lunn's statement may have been
made "contrary to the orders of the company manager
and to the express policy of the Company" is of no mo-
ment, since it does not appear that these alleged orders
were ever communicated to the employees. Solvay
Process Co. v. N.L.R.B., 117 F.2d 83, 85 (C.A. 5). Nor
4 In making my credibility findings, I have not overlooked the fact that
in quoting Foreman Lunn, Allerman referred only to promised Saturday
benefits and Edwards to only promised wage increases. I regard the
failure of each employee to mention both benefits as due to lapse of
memory, a condition not uncommon among honest witnesses . I also credit
Wilburn on this aspect of the case notwithstanding findings elsewhere on
another matter concerning him directly (intro, section B).
DARBY CADILLAC, INC. 317
is there any evidence that Respondent had taken any
steps to repudiate the statements of the foreman. Solo
Cup Company, 114 NLRB 121 , 123, enfd. 237 F.2d 521
(C.A. 8). Furthermore , the fact that Lunn directed the
work of only one of the three employees (i.e., Wilburn) is
not determinative , since Lunn 's supervisory status -
known to all these employees - gave his statements the
stamp of authority.
I conclude that Respondent 's election eve promises of
benefits conditioned on repudiation of the Union were
calculated to, and had the effect of, unfairly interfering
with the employees ' free choice of bargaining representa-
tive, in violation of Section 8(a)(1) of the Act.
B. The Discharge of Wilburn
Wilburn was hired by the Company in 1962 as a new-
car polisher and worked in that capacity until September
1966 when he was assigned to clean used cars.5 His im-
mediate supervisor on both jobs was Body Shop Foreman
Lunn. Wilburn's work was satisfactory and was "often"
praised by management.
Wilburn joined the Union "in early 1966" and was a
member of its negotiating committee. When the Board
agent investigating the Union's objections to the March
15 decertification election appeared in the plant area on
April 27, Wilburn solicited several employees to speak to
him. Respondent contends that it discharged Wilburn on
May 4 after learning that he had attempted to induce one
such employee (McCulloch) to testify adversely but false-
ly to the Board agent.
McCulloch worked for Respondent for 9 or 10 months
in the same (polish) department as Wilburn. Although a
union member while employed elsewhere, he never
joined the Union at Respondent's. He voted in the March
15 election. As witness for Respondent, McCulloch
testified that around 11:30 a.m. on April 27, Wilburn ap-
proached him at his work station and talked to him until
around noon lunchtime. According to McCulloch, Wil-
burn asked him "to join in with him and help him to get
something against the Company so they could take them
to court." Amplifying, McCulloch testified that Wilburn
explained that he "had been informed someone had been
paid to vote"; that Wilburn said he needed "help" to
"take the Company to court"; that Wilburn asked him for
a statement that he (McCulloch) "was paid to vote for the
Company"; that after McCulloch denied being "paid by
anybody," Wilburn told him if he made they suggested ac-
cusation against the Company he "would be given high
wages and ... would be given a generous fee"; and that
when McCulloch persisted in his refusal to give the
requested statement, Wilburn "tried to explain to [him]
the purpose of this get-together," indicating that if they
could "get things working against the Company," they
would be getting higher wages and improved benefits.
Wilburn was not recalled to rebut or explain this
testimony by McCulloch although he was present during
the testimony and was available to controvert it. As
General Counsel's witness he testified on direct examina-
tion (prior to McCulloch's testimony) only in general
terms to the effect that he had asked employees "if they
want to go" to the Board agent; that he himself did not
know "what [the Board agent] want[ed]"; and that he
had not "bribed" anyone to give the Board agent any
statement. Although Wilburn had named seven em-
ployees (including McCulloch) whom he had asked to see
the Board agent and specifically recalled the substance of
his conversation with two, he did not describe the circum-
stances under which he spoke to McCulloch nor the sub-
stance of the conversation with him. Particularly in view
of Wilburn's failure to rebut McCulloch's testimony, the
glaring contrast between the latter's detailed factual ac-
count and Wilburn's generalized testimony, and the ap-
parent lack of personal interest of McCulloch in the out-
come of the proceeding, I credit the testimony of McCul-
loch rather than that of Wilburn. McCulloch impressed
me as a simple, unsophisticated individual not likely to
fabricate testimony.6
Later that day (April 27), McCulloch reported the in-
cident to Service Manager Mayfield, who in turn notified
his superior, General Manager Grier, who advised Com-
pany Attorney Soule'. On May 3, McCulloch gave Soule'
a detailed sworn statement about the April 27 incident.
When Wilburn reported to work the next morning around
8 a.m., he was directed to Grier's office.7
Mayfield opened the May 4 interview in Grier's office
by saying, "Lee [Wilburn], you have been accused of at-
tempting to bribe an employee of this Company." When
Wilburn denied it, Mayfield warned that "it is a rather
serious accusation." Wilburn "would not talk about it"
and Mayfield said that "under the circumstances [he]
had no alternative but to terminate" him. Wilburn was
then paid off.8
Based on the foregoing and the entire record, I find that
Respondent discharged Wilburn on May 4 in the good-
faith belief (based on information obtained from em-
ployee McCulloch) that Wilburn had attempted to induce
an employee to falsify testimony to a Board agent in-
vestigating objections to the decertification election; that
Wilburn in fact had made such an attempt (as established
by the credited testimony of McCulloch);9 and that
neither Wilburn's Union nor protected concerted activity
As new-car polisher Wilburn cleaned, placed new carpets in, and
otherwise readied new cars for polishing As member of "the rough gang"
cleaning used cars, Wilburn's duties included "rubbing out new paint,
fresh paint" which Wilburn describes as "more difficult" and tedious than
servicing new cars. Contrary to General Counsel's suggestion, the record
does not support the inference that Wilburn's transfer during the 1966 bar-
gaining negotiations was motivated by discriminatory reasons. The sub-
stantially uncontradicted credible evidence (including Respondent's
records and testimony of Officials Padgett and Mayfield) shows that
although Wilburn was scheduled to return from his 2-week vacation on
August 30, he did not return until September 6; that having received no
word for Wilburn's delay in returning and being "pressed very sorely to
get new cars polished," Mayfield assigned another employee to Wilburn's
job; and that when Wilburn finally did report back to work he was trans-
ferred to used-car work without any reduction in pay Wilburn's attempted
explanation for his admitted "little" delay in returning from his vacation
was unpersuasive
8 There is no evidence that Wilburn had acted with the Union's
knowledge or approval, express or implied. Nor does Respondent claim
that his conduct is imputable to the Union.
' The above findings are based on the composite and mutually cor-
roborative testimony of Mayfield, Grier, and McCulloch.
3 Based on the mutually corroborative testimony of Mayfield and Grier.
I do not credit Wilburn's testimony to the extent inconsistent with these
findings. Wilburn testified that he did not "argue" with the company offi-
cials when accused of "bribing," explaining, "Well, I thought maybe they
might be mad at me with the union activity or something, and it seemed
like a shock to me, and I know I hadn't even given it a thought."
9 In view of this finding it matters not that Wilburn's activity (soliciting
employees to speak to the Board agent concerning Respondent's election
conduct) constituted a protected concerted activity. See N.L.R B v.
Burnup & Sims, Inc., 379 U S 21.23.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a motivating factor in Respondent 's decision to ter-
minate him.
III. CONDUCT AFFECTING THE RESULTS OF THE MARCH
15 ELECTION
As noted at the outset, Case 16-RD-409 was con-
solidated with the complaint case for disposition of identi-
cal issues (acts of interference , restraint , and coercion) in-
volved in both proceedings. In view of my finding that
Respondent (through Foreman Lunn) violated Section
8(a)(1) of the Act by coercively promising employees that
they would be off work on all Saturdays and would
receive wage increases if they voted out the Union in the
pending decertification election, I likewise find that such
conduct also interfered with the exercise of a free and un-
trammeled choice in the March 15 election. Contrary to
Respondent's contention, Lunn's remarks were not so
isolated as to afford insufficient ground for setting aside
the election. To begin with, the remarks were directed to
3 of the 44-unit employees and were made on the eve of
the election which the Union lost by only two votes.
Furthermore , it is reasonable to assume that a statement
of this type would be spread around by the employees to
whom made. See Frankel Associates, Inc., 146 NLRB
1556, 1557; Joslyn Stainless Steels, 167 NLRB 353, fn.
23. Cf. J. C. Penney v. N.L.R.B., [384 F.2d 479, 486] 66
LRRM 2069, 2074 (C.A. 10).10
I find accordingly and therefore recommend the
sustaining of Objections 1 and 2 (involving the promised
benefits above described) on which a hearing was
directed, and it is further recommended that the election
be set aside.'1
CONCLUSIONS OF LAW
1. By promising benefits to employees if they voted
out the Union in the pending decertification election,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Sec-
tion 7, in violation of Section 8(a)(1), of the Act.
2. The aforesaid violation is an unfair labor practice
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
3. It has not been established that Respondent has vio-
lated Section 8(a)(1) and (3) of the Act (a) by coercively
interrogating employees concerning union sympathies
and activities or (b) by discriminatorily discharging em-
ployee Wilburn because of protected concerted or union
activity.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend the customary cease-
and-desist order in cases of this nature, designed to effec-
tuate the policies of the Act.
I am also recommending that Union Objections 1 and
2 to the election of March 15, 1967, in Case 16-RD-409
be sustained, that said election be set aside, and that said
case be remanded to the Regional Director for Region 16
to conduct a new election at such time as he deems cir-
cumstances permit free choice of bargaining representa-
tives.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this con-
solidated proceeding, and pursuant to Section 10(c) of the
Act, I hereby make the following:
RECOMMENDED ORDER
Darby Cadillac, Inc., Oklahoma City, Oklahoma, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from promising employees
benefits in order to dissuade them from continued
representation by their chosen bargaining representative
or to induce or encourage them to refrain from union ad-
herence or activity.
2. Post at its store in Oklahoma City, Oklahoma, co-
pies of the attached notice marked "Appendix." 12 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
3. Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith.13
1 FURTHER RECOMMEND that the complaint in Case
16-CA-2989 be and the same is hereby dismissed as to
all violations alleged but not herein found; and that the
election held on March 15, 1967, in Case 16-RD-409 be
set aside and that said case be remanded to the Regional
Director for Region 16 to conduct a new election at such
time as he deems that circumstances permit free choice of
a bargaining representative.14
10 Respondent in its brief so concedes , stating (p. 10), "If the conversa-
tion had in fact occurred , it is reasonable to expect that news of a
proposed wage increase, coupled with the news of no more Saturday
work, would at once be circulated by the men who claimed to have heard
the promise ." Respondent's basic position - that Lunn did not make the
statement attributed to him - raises a question of credibility here resolved
adversely to Respondent.
11 The allegation in the complaint that Respondent (through its official
Padgett) unlawfully questioned an employee on March 8, herein found un-
supported by the record, was not advanced objection to the election.
11 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
14 In the event Respondent refuses or fails to comply with the terms of
the order in Case 16-CA-2989, I recommend that the Regional Director
be authorized to conduct the new election herein recommended, upon
written request of the Union. Ideal Baking Company of Tennessee, Inc.,
143 NLRB 546, 554, fn. 9.
DARBY CADILLAC, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that-,
WE WILL NOT promise you benefits in order to dis-
suade you from voting for a union in any election
conducted by the National Labor Relations Board;
nor shall we promise you benefits in order to induce
you to refrain from union adherence or activity.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce you in the exercise of
any of your rights under the Act.
Dated By
DARBY CADILLAC, INC.
(Employer)
319
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 3 34-292 1.