Don Moe Motors, Inc.

National Labor Relations Board - Board Decisions

Sep 1, 1978

237 N.L.R.B. 1525 (N.L.R.B. 1978)

DON MOE MOTORS. INC.
Don Moe Motors, Inc. and General Drivers & Helpers
Local Union No. 74, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Cases 18-CA 5342 and
18-RC-11313
September 1, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. AND TRLIESlAI E
On March 17, 1978, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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 and to
adopt his recommended Order,2 as modified herein.'
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, Don
Moe Motors, Inc., Minot, North Dakota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 2(a):
"(a) Recognize, effective from March 9, 1977,
and, upon request, bargain collectively and in good
faith with General Drivers & Helpers Local Union
No. 74, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of all em-
ployees in the appropriate unit, with respect to rates
of pay, wages, hours, and other terms and conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
The appropriate bargaining unit is:
All full-time and regular part-time employees
employed by the Employer at its Minot, North
Dakota facility, including office clerical employ-
ees, but excluding new and used car salesmen,
the manager, assistant manager, guards and sup-
ervisors as defined in the Act.
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent contends that the Adminlstrative Law Judge's credibility
resolutions should he rejected by the Board due to his failure to specify how
he arrived at the crediblhts resolutions. Respondent cites In support of this
contentin our decisions In Mt & S Compani Inc. 108 NLRB 1193. 1194. fn.
3 11954). and I.i:dale Knitting Mildls Inc., 211 Ni.RB 966 (1974), inter alia
We agree with Respondent that. as we have said before, e.g.. in AM & S Co
In.. siupra, it is had practice to use a "boilerplate footnote" or other general-
azed finding on credibihlis issues he truth of this is well explained in our
decision In Standard Dr) H1all Products, Inc . 91 NLRB 544 (1950). and bI
the Supreme (Court In its decision. cited by the Administrative l.aw Judge
here. in N I R B s W'alton Alanulacturing Compant, et al. 369 U.S. 404
(1962); to wit. that the Board relies heavily on the hearer of the testimony
for resolution of conflicts of that testimony, and most particularly do we
rels on the trier of fact where testimony is otherwise seemingly consistent
with the surrounding record but is found unworthy of belief because of the
manner In which it is rendered by the witness, The trier of fact sees the
witnesses and hears them testify. while the Board sees only the cold record.
Accordingly. when, as here, the Administrative Law Judge fails to state the
specific reasons for accepting some testimony while rejecting other testl-
mons. the reason may have been, for example, the demeanor of the witness;
but. if that fact is not specificalls stated, it is of no aid to the Board. Rather,
the Board is left with the burden of assessing the cold record in light of the
plausibilit), logic, corroboration ior lack of it. and compatibility with the
balance of the evidence of all the testimony of record.
While the use of a boilerplate footnote relating to credibility may increase
the burden of assessing the cold record, this in itself is insufficient reason to
reject runtinely the findings of the Administrative Law Judge, nor is it a
basis for the Board to conclude that the Administrative Law Judge failed to
consider all the evidence. Bishop and Malco, Inc. dab/a Walker's. 159
NILRB 1 159 11966); Stanles Oil ('mpunr, Inc.. 213 NLRB 219 (1974). Ac-
cordingl, we have carefull) examined the record in light of Respondent's
exceptions to the Administrative Law Judge's credibility resolutions and
find no basis fsor reversing his findings
Member Truesdale would find that Respondent's unlawful refusal to
bargain occurred on March 7. 1977, when the Union requested that Respon-
dent recognile It and engage In collectise bargaining
I[he Administrative Law Judge Inadsertentl? failed to conform ihls no-
tice lth his recommended Order. V'e shall correct his notice accordingls
APPENDIX
NOI(CE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.L NOT interrogate employees concern-
ing their union activities, support for the Union,
memberships, or sentiments.
WE\ Wlll Nor threaten to discharge employees
because of their union activities.
WE WIIl. NOT threaten to close the business
because of the Union.
WE Wll . NOT promise more frequent review of
pay records and/or promise to look into addi-
tional vacation and sick pay benefits.
WE WILl NOT solicit grievances in efforts to
curtail union activities.
WE WILL NOT grant wage increases by retract-
ing prior announcements setting lower commis-
sion work rates.
WE WIIlL NOT tell or threaten our employees
237 NLRB No. 170
1525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company would never negotiate with
the Union.
Wr WViL. Not in any other manner interfere
with, restrain, or coerce our employeecs in the
exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of their
own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all
such activities.
WE wnii. recognize, effective March 9., 1977.
and, upon request, bargain collectively and in
good faith with the Union named herein as the
exclusive representative of all the employees in
the bargaining unit described below with respect
to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an
agreement is reached, embody it in a signed con-
tract. The bargaining unit is:
All full-time and regular part-time employees
employed by us at our Minot., North Dakota
facility, including office clerical employees.
but excluding new and used car salesmen. the
manager, assistant manager, guards and sup-
ervisors as defined in the Act.
DON MOE MOTORS, IN(.
DECISION
STAIEMLNI O-F IHi (CASE
PHIL W SAUNDERS. Administrative Law Judge: Based on
a charge filed on April 18, 1977, by International Brother-
hood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America, Local Union No. 74, herein the IJnion
or Local 74, a complaint was issued on August 31, 1977,
against Don Moe Motors. Inc.. herein the Company or
Respondent, alleging violations of Section 8(a)(l) and (5)
of the National Labor Relations Act, as amended. Respon-
dent filed an answer to the complaint denying it had en-
gaged in the alleged matter, and the General Counsel filed
a brief subsequent to the hearing in this case.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor.' I make the
following:
The facts found herein are based on the record as a while up~in mIl
observation of the witnesses. The credbilihrt revolutionr, herein hale hbeen d
rived from a review of the entire tertinonial re ord and rhihitt with due rclrd
for the logic fr probabhilih. the deneanor of rhe wi newt,, and the leao hing ,I
N L..R. v. allton Manufa(turin, ( omntpini, a/l 369 t '.S. 404 (1962). As
to those witnesses testifying in contradiction of the findings hereii. their
testimony has been discredited, either as having been in conflict with the
testimony of credible witnesses or beccause it ais in iland of itself incredihble
and unworth of behef li ll teltrnonir, hae hen relie ed and seighed in iu,
light of the entire record
FINI)INGS OF FA(
I IltE BUSINESS OF IHE COMPANY
The Respondent is a corporation duly organized under
and existing by virtue of the laws of the State of North
Dakota. and at all times material herein Respondent has
maintained its office and place of business in Minot, North
Dakota. where it is engaged in the retail sale and service of
new and used automobiles and trucks.
During the wyear ending December 31. 1976. which pe-
riod is representative of its operating during all times mate-
rial herein, the Respondent, in the course and conduct of
its business operations. derived gross revenues in excess of
$500,00(0. and during this same period the Respondent also
purchased and caused to be transported and delivered at
its place of business, automobiles and parts, and other
goods and materials, valued in excess of $50,000, and of
which goods and materials valued in excess of $50,000
were transported and delivered to its place of business in
Minot. North Dakota, directly from points located outside
the State of North t)akota.
The Respondent is now, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. 2
11 rilE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill IHE UNiAIR LABOR PRACTI(ES
It is alleged in the complaint that on various dates in
March, 1977. agents and supervisors of the Respondent
unlawfully interrogated employees; promised that wage
rates would be reviewed more often; told employees that
the Company would never negotiate even if the Union won
the election; threatened that if the Union won the election
two employees would be fired: promised to increase vaca-
tion pay; and that the Respondent reinstate the "Chilton
Book" rate of pay to its mechanics because they had en-
gaged in activities on behalf of the Union. It is further
alleged that commencing on or about March 7, 1977, and
continuing to date. the Respondent refused to recognize
and bargain with the Union notwithstanding that the
Union is the duly designated collective-bargaining repre-
sentative of employees in a proper unit, and that the Re-
spondent has interfered with the rights guaranteed in Sec-
tion 7 of the Act by conduct which tends to undermine the
Union and destroy its majority status, and impedes the
election process, and only by an order requiring the Re-
spondent to bargain with the Union as of March 9, 1977,
when the Respondent embarked on its unlawful conduct,
may the effects of such conduct be remedied.3
At all times material hcicil the follovwing named persons occupied posi-
iotls following their respective names, and have been and are now supervis-
ors or agents of the Respondent within the meaning of Sec 2X 1 1) of the Act
James ILarsion service manager; Donald Moe, presidenti and Sheldon Scott.
general mana;lger
Ihe appropriatce 1nl feor the purpose of collective bargaining. is de-
1526
DON MOE MOTORS. INC.
On or about March 1, 1977.4 the Respondent's president.
Donald Moe, informed employees in a meeting that the
commission rate then being paid to mechanics on certain
internal repair work, would be changed from the currently
used Chilton Customer Rate to the lower Chrysler Factory
Warranty Rate. There was testimony by mechanic Gerald
Steele that this change in rate meant a possible 20 to 23
percent reduction in the mechanics' wages.
Within a day or two following the above announcement
on reduced wage rates, one of the employees called the
Union's President, Sylvan Hubrig. and inquired into the
possibility of organizing, and a meeting was then arranged
for March 3. On this date eleven of the Respondent's em-
ployees met with Hubrig, and were then informed as to the
necessity of securing a certain number of authorization
cards in order for the Union to petition the Board for an
election, and that by so doing the employees were authoriz-
ing the Union to represent them in negotiations over wag-
es, hours, and working conditions. All of the eleven em-
ployees present at this meeting signed authorization cards
for the Union and returned them to Hubrig.
On or about March 7, Hubrig conducted his second
Union meeting for the Respondent's employees, and dur-
ing this meeting 5 additional authorization cards were
signed, so that by March 7, 16 authorization cards had
been signed. On March 7, Donald Moe, President and
owner of the Respondent, also received a letter from the
Union dated March 4, demanding recognition as the col-
lective-bargaining representative of Respondent's employ-
ees, and claiming that it represented a "substantial
amount" of the employees. 5 Shortly thereafter, the Union's
petition for certification in Case 18-RC- 11313, dated
March 7, was also received by Respondent. and the Re-
spondent then conducted its second employee meeting, for
mechanics only, and President Donald Moe announced
that contrary to his previous announcement, as aforestated,
the rates for certain repair work in the shop would not be
reduced, and that Chilton Customer Rate would be rein-
stated. 6
The Board election in Case 18-RC-11313 was conduct-
ed on March 22, and the tally of ballots showed that out of
the 21 eligible voters in the appropriate unit, 20 votes were
counted and the Union received 10 votes in support, and
10 votes were cast against Union participation. Objections
to the Conduct of the Election were then filed on March
28, and the unfair labor practice charges were filed on
April 18. On September 2. Cases 18-RC-11313 and 18
CA-5342 were consolidated, and the Objections are incor-
scribed as follows:
All full-time and regular part-time emplosees employed bh the Respon-
dent at its Minot, North Dakota. facility, including office clerical em-
ployees, but excluding new and used car salesmen, the manager, assis-
tant manager, guards and supervisors as defined in the Act.
4All dates are 1977 unless specifically stated otherwise.
The Company asserts that its first knowledge of any activity on behalf
of the Union, was on March 7 when Moe read the demand letter from
Hubrig.
6Between March 9 and 20, as will be detailed later on. Respondent. Presi-
dent Donald Moe called bargaining unit employees Individualls into his
office.
porated and framed within the allegations of the instant
complaint.
On or about March 18. Gerald Steele was called into the
office, and President Moe then informed him, obviously
referring to the Union. that "someone had to be the con-
tact man." 7 On this occasion Moe also told Steele that at a
prior time a man by the name of Christ Kraft had "ram-
rodded a union deal with the garage." but that in doing so
he had "failed miserably." It appears to me that these
remarks by Moe were clear signals to Steele that he consid-
ered him to be the Union instigator.
Employee Joe Perry was also called into the office prior
to the election, and Moe then asked him why the employ-
ees had picked the Teamsters. Donald Moe also proceeded
to tell Perry about a former employee who was in the parts
department, like Perry, but since he had been involved with
a union on a prior occasion-"the guy hasn't worked a day
since." Moe further mentioned that they would not get a
union in because he did not want to negotiate with a union.
Supervisor Sheldon Scott was also present as he was during
most of the other office interviews, and he inquired of Per-
ry if he "would ramrod the Union." 9 Later in the meeting,
Moe also promised Perry that his pay record would be
reviewed "a little more often." 0'
Approximately 3 days prior to the election, Moe called
Janice Olson into his office and asked her "if the Union
was going to pass?" He then told her that he thought Ger-
ald Steele and Joe Perry were active in the Union as "ring-
leaders" and "pushers" for the Union. He also told her that
one employee in the parts department and one employee in
the service department would be fired. Moe's version of his
discussion with Janice Olson is that he did not know her
very well, and that he "just spent the time of day with her."
As pointed out, it is doubtful that Moe would call an em-
ployee into his office, with Respondent's General Manager
Scott also present, just to "spend the time of day" with her.
Mechanic Robert Crampton was also called into the of-
fice prior to the election. His meeting with Moe and Scott
commenced with Manager Scott accusing him of drinking
and telling Crampton he was lucky to still be working
there. Then they expressed their disappointment to Cramp-
ton in his attendance at the Union meeting. Crampton was
also asked what the Union could do for him, and Moe then
told Crampton that the Union "would never get in his op-
eration," but further stated he would try to increase em-
ployees' vacation pay. Crampton also testified that as good
friends he frequently had numerous conversations with Re-
spondent's Service Manager James Larson, and on such
Steele stated that Moe did not accuse him of being the contact man for
the Union, hut "it sounded that way.'
tMoe admitted calling emploee Steele into his office and having a
"lengthy" discussion with him about certain tools and other shop condi-
tions, but stated that he "'steered clear" of any union discussion as he knew
Steele was sery "strongly oriented" In that direction
Moe testified that he conducted these numerous Interviews with employ -
ees to present the "other side" of the picture. and that he did so within the
limits of the la. lie also stated that this was his third union campaign. and
that in the instant organizing campaign he had a pamphlet from the Board
or Region outlining what he could and could not do.
0 Moe denied the statements attributed to him by Perry. but then admit-
ted having hinm in his office and telling Perry that they could "'iron out some
things" between Ihemselves. and that he did not think it was necessary to
hire somehbod, to' "hargain for hillm "
1527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions Larson clearly expressed his opinion to the effect
that he did not like Crampton's affiliation with the Union,
and then also mentioned the names of several employees-
Steele, Perry, and Heer-that "wouldn't be around long" if
the Union failed to organize the Company."
When Dennis Heer was called into the office, Moe in-
formed him that a union had unsuccessfully attempted to
organize the garage some time back, and then stated that
"it wasn't going to get in now." Moe also informed Heer
that "he would just as soon close the doors as to have a
union in the shop." Heer further remembered an occasion
when Moe visited the shop area of the garage, and wherein
he asked four or five employees how the Union "could
better" the employees. Heer replied that he thought they
should have additional pay for vacations, sick leave, and
for holidays. Moe then replied that he would look into
these matters and get back to them, but later Moe in-
formed Heer that there was nothing he could do on these
matters until things "had cooled off" with the Union.
Zack Roberts was also called into the office before the
election, and Moe then informed him that "the Union had
tried to go through once before and that it was voted down,
and he said that he should have let a bunch of people go
then when it didn't go through but he didn't." Moe further
told him that if the Union were voted in, Roberts would be
unable to work during the winter months.
As pointed out, for several of the employees this was the
first time they had ever been called into Moe's office, and
all of the interviews were similar in that the employees
were called in individually. Moreover, both Sheldon Scott
and Donald Moe were present in the private office of Re-
spondent's President, and some of the interviews even
started out with statements concerning the instability of
the employees' employment tenure with Respondent, and
in so doing implying to employees that their activity with
the Union could endanger their jobs. Clearly, such inter-
views under these extenuating circumstances, created the
locus of managerial authority, and reasonably and foresee-
ably, could be expected to intimidate the employees.
Dennis Heer, Stephen Peterson, and Les Taylor also tes-
tified as to the solicitation of grievances by Moe from the
body shop employees, as aforestated, and promising them
that he would look into increasing certain benefits. Moe
testified that he later told Heer and others that he could
not do anything about these matters until the Union situa-
tion was settled, but, of course, this does not erase the
unlawfulness of the original solicitation and promise of ac-
tion.
The foregoing testimony, as aforestated, which has been
credibly attributed to the Respondent, included instances
(either directly or by clear implications) of threats to dis-
charge, unlawfully interrogating employees as to their
union activity, sentiments, the amount of support, and in-
quiries as to who the leaders were; promises to review pay
[ Moe testified that he only told Crampton that they could "do the things
necessary" without having "a third part)y" Scott denied making any remark
at the time in question about his drinking problem. Larson could not recall
making any remark to Crampton about terminations because of union ac-
tivity, but readily admitted that he and Crampton were close friends and
that they frequently discussed "all subjects" with the exception of the
Union.
records more often: promises to look into additional vaca-
tion and sick pay benefits; a threat to close the business;
soliciting grievances; and stating that the Company would
never negotiate with the Union. These are types of em-
ployer conduct which are clearly prohibited by Section
8(a)(1) and consistently held violative of the Act. More-
over, it has long been recognized by both the Board and
the courts that the test of interference, restraint, and coer-
cion under Section 8(a)(1) of the Act does not turn on a
respondent's motive, courtesy, or gentleness, or on whether
the coercion succeeded or failed. It does not turn on
whether the supervisor and the employee involved are on
friendly or unfriendly terms. Rather, the test is whether the
supervisor's conduct reasonably tended to interfere with
the free exercise of the employee's rights under the Act.
On March I, the Respondent informed employees that
internal repair work would no longer be charged by the
Chilton Customer Rate, but rather by the Chrysler Factory
Warranty Rate, as aforestated." There is no question that
on March 7 the Respondent had received the Union's de-
mand for recognition, and 2 days later, on or about March
9, the Respondent then retracted its lower Factory War-
ranty Rate, and reinstated the higher Chilton Customer
Rate.
At the time of the Respondent's initial change and re-
duction in certain repair work rates on March I, there was
no union activity as there had been no contract with the
Union until a day or so later. However, on or about March
9, when the change back to the higher Chilton Rate was
announced, the Company by now had received the Union's
demand letter, and I am in agreement that Respondent's
retraction on this date of its formerly announced reduction
in rate and reinstatement of the higher Chilton Customer
Rate, was timed to induce employees to reject the Union,
and was violative of Section 8(a)(l) of the Act. As indi-
cated, the announcement of the reversal in a policy which
would have reduced wages, must have been most persua-
sive in that many of the employees in the unit (the mechan-
ics) would now receive a wage increase, and at the same
time eliminate what appears to be at least one reason as to
why the employees sought union representation. Restoring
the old rate was timed to thwart the employees' organizing
initiative, and whether or not the lower Factory Rate
change had actually been implemented by the Company
during the week in question, the employees were not likely
to miss its meaning.
By retracting its reduction of certain repair rates shortly
after receiving the Union's letter demanding recognition,
the Respondent was actually granting employees a wage
increase and, as the Board has frequently indicated, if such
a benefit is granted shortly after the filing of a representa-
2 1 here are some indications in the record that because of this particular
development, the employees in the instant case initially became interested in
contacting the Union.
[' Because the mechanics were confused over the real basis of their pay-
checks. they, were unable to evaluate whether their rate change was actually
implemented. but the' were consistent in their testimony that Moe initially
told them on March I that the rate would be changed. The Respondent also
denies that there second employee meeting ever occurred. However, the
witnesses for the Gieneral Counsel were insistent in their testimony that
Manager James Larson called a second employee meeting approximately I
week after the first meeting.
1528
DON MOE MOTORS, INC.
tion petition or a demand for recognition, there is a pre-
sumption of impropriety which can be rebutted only by an
affirmative showing that the granting of the benefits was
governed by factors other than the impending election.' 4
The complaint alleges and the answer admits that the
appropriate bargaining unit is composed of the employees
as specified and described herein. Moreover, the parties
stipulated that the following named employees (21 of
them) were employed in the described unit throughout the
period between March 4 and March 7, and were on the
eligibility list for the election conducted on March 22:
Greg L. Ackerman
Robert Crampton
Brad Eide
Tim Filler
Richard Franklin
Denis Heer
Roger Hummel
Barbara Jacob
Joleen Johnson
Joel Lochtowe
Bernhardt Mueller
Janice Olson
Joe Perry
Stephen Peterson
Zack Roberts
Conrad Rudland
Leo Schmaltz
Gerald Steele
Les Taylor
Richard Tompers
Lois Yankee
The record also reveals that the union authorization
cards involved herein were single-purpose, clear, and un-
ambiguous on their face and that the signer authorized the
Union to represent him for the purpose of collective bar-
gaining. Eleven employees testified that they read the cards
when they signed them, and there can be no question as to
the validity of these cards.
Bernhardt Mueller stated that although he could not re-
member if he had read his card, nevertheless, the card was
explained to him before he signed it. The authorization
cards of Zack Roberts and Richard Tompers were misdat-
ed, but these two employees testified that they had merely
erroneously misdated the cards by one day and actually
signed them at the Union meeting conducted on March 3.
Employees Roger Hummel and Leo Schmaltz did not testi-
fy as to the validity of their cards, but employee Dennis
Heer stated that he saw Leo Schmaltz sign an authoriza-
tion card on March 3, and employee Stephen Peterson tes-
tified that he had observed Schmaltz in attendance at the
Union meeting on March 3. 1 am in agreement that
Schmaltz' card, dated March 3, was sufficiently authenti-
cated through the testimony of these two witnesses. Fur-
thermore, Roger Hummel's card is also a valid authoriza-
tion card even though it is dated March 6. Hummel's
signature appears on the attendance list for the Union
meeting conducted on March 7, and, therefore, can be rea-
sonably inferred that he signed his authorization card at
that meeting, and especially so since Respondent failed to
show any coercion or unlawful inducement with respect to
Hummel's card, and did not make any challenge to the
card after examining it at the hearing.
Barbara Jacobs testified that she felt "pressured" into
4 Moe stated that one purpose of his first meeting with emploiees in
early March was to reprimand them about the excessive debris in the shop
and body work area, but when confronted with the fact that bh then he had
already written a letter to the North Dakota Workmen's Compensa.tion
Bureau, dated February 21, stating that the violations had been remedied,
Moe then admitted that he had not in actualits remedied the :iolatolns
signing her card. However, she could not remember where
this pressure came from, but mentioned that another em-
ployee sitting with her did not sign a card. Jacobs also
claimed that she could not remember whether or not she
read the card, but then admitted on cross-examination that
she usually does not sign anything without first reading it.
As pointed out, none of Jacob's testimony reflected any
coercion, unlawful inducement, or misrepresentation on
the part of Hubrig or any one else in soliciting her signa-
ture, and, of course, it is well settled law that an employee's
thoughts or subjective state of mind as to why they signed
an authorization card cannot negate or nullify the overt
action of having signed an unambiguous card designating a
union as their bargaining representative. Joleen Johnson
also attended the Union meeting on March 7 and signed a
card at the meeting, but stated that she did so because
"everybody else" had signed cards, and that "her friends"
had talked her into signing the card. As noted, ordinary
persuasion in itself is not an unlawful inducement whether
it be by fellow employee or by the Union, and under the
circumstances here Johnson's subjective intent when she
signed her card does not vitiate her voluntary designation
of the Union as her collective-bargaining representative.
Thus, as of March 7, the Union represented 16 out of the
21 employees in the bargaining unit a clear majority.
The General Counsel argues that a bargaining order is
warranted on the authority of N.L. RB. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969). As set forth previously
herein. the Union has requested recognition in an appro-
priate unit in which it represented a majority of the em-
ployees on March 7.
In the instant case the Respondent committed unfair la-
bor practices which clearly have had "the tendency to un-
dermine majority strength and impede the election pro-
cesses." N. L.R.B. v. Gisscl Packing Co., supra at 614. It also
appears that "the possibility of erasing the effects of past
practices . . is slight," (id.) and thus a bargaining order,
rather than another election, would best protect employee
sentiment as indicated by the authorization cards.
As fully outlined earlier herein, on or about March 9, the
Respondent retracted its prior reduction of the commission
rate of internal repair work and thereby granted a wage
increase, engaged in constant and continuous interroga-
tions of all sorts, conducted solicitation of grievances,
made promises of improved benefits, issued threats to dis-
charge employees and to close the business, and main-
tained that the Company would never negotiate with the
Union. In accordance therewith, I am of the opinion that
the possibility of erasing the effects of the Company's un-
fair labor practices and insuring a fair election by the use
of the traditional remedy of a cease-and-desist order is
slight. and that in this case the employee sentiment ex-
pressed through the authorization cards obtained by the
Union would, on balance, be better protected by a bargain-
ing order, and I shall therefore recommend that such an
order be issued.' 5
In the final analysis. the Respondent's unlawful conduct,
which commenced on or about March 9, impeded the elec-
Ii has been esta Ihshed Ihat ,ioai.olns of 8(a)% II. if severe enough. war-
rant a bargalining order under (l.s i' See the Board's recent decision In The
(;Grca .41thnilc d& Pa[iut l['a ( onl/panll, Inr, 230 NL.RB 766 ( 1977L.
1529
DECISIONS OF NA [IONAI. IABOR RELAl'IONS BOARD
tion process, undermined the Union. and destroyed its ma-
jority status. Thus unlawful conduct can he remedied only
by an order requiring the Respondent to bargain Aith the
Union as of March 9. 1977. the date upon which the Re-
spondent embarked on its unlawful conduct.
iv rtil RE'it 1111
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)( ) and 15) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused to
bargain collectively with the Union, I shall recommend
that, upon request, it be ordered to do so concerning rates
of pay, wages, hours and other terms and conditions of
employment, and if an understanding Is reached, enmbodv
such understanding in a signed agreement.
('()N I. SIO(NS OF Ls4
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described and detailed in sec-
tion Ill, above, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The unit set forth herein, constitutes a unit appropri-
ate for the purpose of collective bargaining vwithin the
meaning of Section 9(b) of the Act.
5. On or about March 7. 1977, and at all material times
thereafter, the Union represented a majority of employees
in the appropriate unit, and has been the exclusive repre-
sentative of said employees for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
6. Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 61
Respondent Don Moe Motors, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities, membership, and sentiments.
'6 In the event no exceptions are filed as provided bs Sec. 10)24( of the
Rules and Regulations of the National I abor Relaioln, Board, the fidindings.
conclusions, and recommended Order herein shall, as pros ided in Set
102.48 of the Rules and Regulations, he adopted his he Board and become
its findings, conclusions licnd Order. and all ,hbjectoils thereto shlII he
deemed waived for all purposes
(h) Threatening to discharge employees because of their
union activities.
(c Threatening to close the business because of the
Ulnion.
Id) Promising more frequent review of pay records and
promising to look into additional vacation and sick pay
benefits. However, nothing in this Order shall require the
withdrawal of changes in the present pay rates until such
wage rates have been established pursuant to a bargaining
agreement.
(e) Granting wage increases by retraction of a change in
cettain repair work rates.
(fI Soliciting grievances.
(g) I'hreatening or warning that the Company would
never negotiate with the Union.
(h) Refusing to bargain collectively concerning rates of
pas., wages. hours, and other terms and conditions of em-
plom tent with the Union as the exclusive bargaining repre-
sent.ttie of its employees in the appropriate unit as de-
scribedt and set forth herein.
(i) In ani other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
orgnizatizon to form. join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Recognize. effective from March 9, 1977, and upon
request, bargain collectively with the aforesaid Union as
the exclusive representative of all the employees in the
ahove-described unit. and if an understanding is reached,
embody such understanding in a signed agreement.
(h) Post at its place of business in Minot, North Dakota,
copies of the attached notice marked "Appendix." 7 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 18, shall, after being duly signed by Re-
spondent's representative, be posted by it immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
It IS t RI TiR ORDERID that the election held on March
22. 1977, be set aside, and that the petition in Case 18-RC-
11313 be dismissed, and that all proceedings held in con-
nection therewith be vacated.
'li Ihe esent thai this Order is enforced hi a judgment of a United
State, ( oult of Appealu the words in the notice reading "Posted by Order
of the National labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States ('ourl of Appeals Enforcing an Order of the
National I.ahl Relations Board."
1530