E. L. Jones Dodge, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1971

190 N.L.R.B. 707 (N.L.R.B. 1971)

E. L. JONES DODGE, INC. 707
E. L. Jones Dodge, Inc. and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Local Union 110. Case 6 -CA-5064
June 4, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On February 10, 1971, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled pro-
ceeding, 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 at-
tached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Counsel
filed limited cross-exceptions and a supporting brief, as
well as a brief in support of the Trial Examiner's Deci-
sion to the extent that it was not inconsistent with the
limited cross-exceptions.
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 Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision,' the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner, while finding that VanCavage,
Weaver, and Wiegand were discriminatorily selected
for layoff, declined to decide whether the layoffs them-
selves were made for economic reasons, as Respondent
The Trial Examiner inadvertently stated that Jones left the dealership
at 10 a in on July 3 and returned on the evening of July 4, that the layoff
occurred on July 5, and that Jones asserted that he did not receive the
Union's request for recognition until July 5 It is clear from the record that
the dates are June 3, June 4, and June 5, respectively
Respondent has excepted to certain credibility findings made by the
Trial Examiner It is our established policy, however, not to overrule a Trial
Examiner's credibility resolutions unless, as is not the case here, a clear
preponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (CA 3)
In adopting the Trial Examiner's finding that Respondent was aware of
the union activity prior to the layoff, we find that Respondent received a
copy of the Union's petition for an election on June 4. The petition was
mailed by the Regional Office to Respondent on June 3, and postal em-
ployees testified that, in the normal course of business, Respondent would
have received it the following morning While Respondent denied receiving
the petition until June 5, the Trial Examiner's failure to find that the petition
was received on June 4 appears to be based, not on credibility resolutions
or record evidence, but on his personal experience with mail delivery In our
view, this is insufficient to rebut the presumption that the petition was
received in the normal course of business
contends, or were discriminatorily motivated. The
General Counsel contends that they were not economi-
cally justified, but were designed to undermine the Un-
ion's majority status and thwart its organizational
effort. We find merit in this contention.
It is clear that Respondent operated at a loss every
month from November 1969 through April 1970, with
the largest losses coming in March and April, yet no
one was laid off during this period. Respondent Presi-
dent Jones attributed these losses to excessive costs in
the shop and the compensation system used to pay
salesmen. The first of these problems was solved in May
by laying off eight shop employees; that month, for the
first time, Respondent showed a net profit. The sales-
men's compensation plan was also substantially
changed. The expenses of their monthly salary and
hospitalization plan payments were eliminated, their
gasoline allowance was sharply reduced, and their com-
mission rate was cut to a flat 25 percent.' The effect of
these changes was to eliminate virtually all fixed ex-
penses from the compensation plan, thereby precluding
any possibility of significant economic benefit to Re-
spondent from the layoff of salesmen. Nevertheless,
Respondent laid off three salesmen, including the two
who had consistently earned the highest gross profits,
only a few days after instituting the new pay plan.
In addition, we note that on June 2, 1970, only 3 days
before the layoff, Respondent hired a new salesman,
Allenbaugh. While Respondent contends that Allen-
baugh was hired to sell trucks, he admittedly sold new
and used cars, and other salesmen were never in-
structed not to sell trucks. In July, another inex-
perienced salesman, Scalerio, was hired; Malonek, Re-
spondent's general sales manager, admitted that this
was done because Respondent needed help, but that no
effort was made to recall the salesmen previously laid
off. The hiring of inexperienced salesmen and the steps
previously taken by Respondent to reduce its expenses
convince us that there was no economic justification for
Respondent's layoff of almost half its sales force at the
beginning of its busiest season.' In view of this lack of
economic justification; Respondent's strong hostility to
unionism, as evidenced by its threats to close the busi-
ness and not to tolerate a union;' and the fact that the
layoffs occurred almost immediately after Respondent
received the Union's demand for recognition and peti-
' Most of them had been earning enough gross profits each month to
receive commissions of 30 or 35 percent under the former plan
' Both Malonek and Appley, a used-car manager for another dealer,
testified that June and July were the busiest months of the year for automo-
bile sales
' We have adopted the Trial Examiner's finding that those threats which
occurred within the 10(b) period were violative of Section 8(a)(1) of the Act
The threats made prior to the 10(b) period were properly considered as
evidence of antiunion motivation for conduct within the 10(b) period Local
Lodge No. 1424, International Association of Machinists v. N.L.R.B. [Bryan
Mfg Co],362US 411
190 NLRB No. 136
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion for an election, we are persuaded that it was the
employees ' union activity , rather than any legitimate
reasons, which led Respondent to resort to layoffs just
as its economic condition was improving after retaining
all salesmen throughout its most difficult period. Ac-
cordingly, in adopting the Trial Examiner's finding that
VanCavage, Weaver, and Wiegand were dis-
criminatorily laid off in violation of Section 8(a)(3) and
(1) of the Act, we find that Respondent's decision to lay
off salesmen was itself discriminatorily motivated.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, as modified below, and hereby or-
ders that the Respondent, E. L. Jones Dodge, Inc.,
Summerhill , Pennsylvania , its officers , agents , succes-
sors , and assigns , shall take the action set forth in the
Trial Examiner 's recommended Order, as so modified:
1. Insert the following new paragraphs 2(c) and (d)
and reletter the subsequent paragraphs as (e), (f), and
(g) :
"(c) Preserve and, upon request , make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
"(d) Notify immediately Merle Weaver and George
VanCavage if presently serving in the Armed Forces of
the United States , of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act."
2. In footnote 25 of the Trial Examiner's Decision
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner 's Appendix.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you that we will close
down our agency if you select a union to represent
you.
WE WILL NOT create the impression that your
union or other concerted activities are under sur-
veillance.
WE WILL NOT discourage membership in Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union 110 , or any other labor organization, by
laying off or failing or refusing to reinstate em-
ployees because they engaged in union or con-
certed activities.
WE WILL NOT in any manner interfere with,
restrain , or coerce employees in the exercise of
their rights to self-organization; to form, join, or
assist labor organizations ; to bargain collectively
through representatives of their own choosing; to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or pro-
tection ; or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act.
WE WILL offer reinstatement to Merle Weaver
and George VanCavage to their former jobs of
salesmen , dismissing if necessary any salesman
hired since June 5, 1970.
WE WILL make whole Merle Weaver, Dennis
Wiegand, and George VanCavage for any loss of
pay incurred by them since June 5, 1970.
WE WILL bargain with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union 110, as the
exclusive bargaining representative of our new-
and used-car salesmen.
All of you, our employees , are free to remain or
become, or refrain from becoming , members of, or to
withdraw from, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 110, or any other labor organi-
zation.
E. L. JONES
DODGE, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify Merle Weaver and George VanCavage
if presently serving in the Armed Forces of the United
States , of their right to full reinstatement , upon applica-
tion after discharge from the Armed Forces, in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1536 Federal Building, 1000 Liberty Avenue,
E. L. JONES DODGE, INC 709
Pittsburgh , Pennsylvania 15222 , Telephone 412-644-
2977.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge and
an amendment thereto filed on June 11 and July 17, 1970,
respectively, by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
Union 110 , herein called the Union , against E . L. Jones
Dodge, Inc., herein called the Respondent, the Regional Di-
rector for Region 6 of the National Labor Relations Board,
herein called the Board , issued a complaint on behalf of the
General Counsel of the Board on September 15, 1970 , alleg-
ing violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (29 U.S.C., Sec. 151, et
seq.), herein called the Act. In its duly filed answer Respond-
ent, while admitting certain allegations of the complaint, de-
nied the commission of any unfair labor practice.
Pursuant to notice a trial was held before me in Ebensburg,
Pennsylvania , where the parties were present , represented by
counsel , and afforded full opportunity to be heard , to present
oral argument , and file briefs. Briefs were filed by Respondent
and counsel for the General Counsel on December 8, 1970.
Simultaneously , counsel for the Respondent filed a motion to
correct the transcript of the hearing in certain respects. There
being no opposition and the corrections appearing to me to
be fully warranted the motion is hereby granted and the
original transcript has been physically corrected accordingly.
Upon considerations of the entire record, including the
briefs of the parties, and specifically upon my observation of
each witness appearing before me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
E. L. Jones Dodge, Inc., Respondent herein, is a Pennsyl-
vania corporation with its principal office located in Summer-
hill, Pennsylvania , where it is engaged in the retail and non-
retail sale of automobiles and trucks . During a 12-month
period immediately preceding the commencement of this pro-
ceeding the Respondent had a gross volume of business in
excess of $500,000 and received goods and materials valued
in excess of $50 ,000 for use at its Summerhill, Pennsylvania,
facility, directly from points outside the Commonwealth of
Pennsylvania . Upon the foregoing admitted facts I conclude
and find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
' I have considered the testimony of all witnesses , including those whose
testimony I neither accept nor refer to To the extent that I do not rely on
or I reject in part or entirely the testimony of any given witness, it is my
intent thereby to indicate that such part or whole of the testimony, as the
case may be , is discredited by me Jackson Maintenance Corporation, 126
NLRB 115, 117, fn 1, enfd 283 F 2d 569 (CA 2) To the extent that I credit
any witness only in part I do so upon the evidentiary rule that it is not
uncommon "to believe some and not all" of a witness ' testimony. NL R B.
v Universal Camera Corp., 179 F 2d 749, 754 (CA 2)
In evaluating the testimony of each witness I have relied specifically upon
his demeanor and have made my findings accordingly , and while apart from
consideration of demeanor I have taken into account inconsistencies and
conflicting evidence, my failure to detail each of these is not to be deemed
a failure on my part to have fully considered it Bishop and Malco, Inc., 159
NLRB 1159, 1161
II THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Local Union 110, is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE ISSUES
1. The Employer 's knowledge of its employees ' union ac-
tivities and concerted activities.
2. The discriminatory selection of employees for economic
layoff.
3. Threats to close and intimations of surveillance.
4. Quantum of misconduct required for issuance of a bar-
gaining order when authorization cards establish majority
status.
IV THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Organization among the Respondent 's six new - and used-
car salesmen began in late May 1970 as a consequence of a
worsening economic situation in Respondent 's dealership
and its decision to institute a new and less remunerative pay
schedule which appeared to have carved with it the portent
of layoffs.
Sometime early in May 1970 Earl Jones, Respondent's
president , worked out a revision of the existing pay plan
which would have the effect of eliminating the salesmen's
$200 monthly salary , altering the commission rate to a
straight 25 percent , and reducing the gasoline allowance to
each of the salesmen. After discussions with General Sales
Manager Henry Malonek , Jones gave the plan to him on May
23 with directions to notify the salesmen . Whereupon, on the
morning of May 25 Malonek met with the salesmen, dis-
tributed typed copies of the new pay plan, and discussed it
with them . There is conflicting testimony as to whether the
subject of possible layoffs was discussed at this first pay meet-
ing.'
Following the announcement of the new plan the salesmen
met on the same evening in a local restaurant and considered
the matter further . The six men involved being the total sales
force at the time were George VanCavage, Merle Weaver,
Dennis Wiegand , George Letzo , Edward Rock , and Frank
Eppolito. At this meeting the men decided that they should
first discuss the plan with Jones and selected the following
morning for the meeting with him . Accordingly , on the fol-
lowing morning, May 26, employee VanCavage, after first
talking with the salesmen at the dealership , approached Sales
Manager Malonek as he was coming out of his nearby office
and said to him "Henry , I wonder if you and Mr . Jones would
have a meeting with us men?" Whereupon Malonek went
upstairs to Jones' office and conveyed VanCavage 's request to
him, stating to Jones that "George would like to have a
meeting with the boys upstairs ." This meeting , which Malo-
nek elsewhere in his testimony referred to as "the meeting
that George VanCavage wanted with Mr. Jones and myself,"
was called shortly thereafter.'
At the meeting in Jones' office on May 26 the new pay plan
was discussed in depth ; comparisons were made, item by item
with the existing plan. With VanCavage , according to Jones
' The testimony of Jones and Malonek.
' The foregoing is a synthesis of the testimony of employees VanCavage
and Rock Malonek's testimony , as quoted , confirmed the date and the
arrangements for the meeting with Jones
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Malonek, acting as spokesman for the men,' both of them
sought to justify the course they were taking. As the meeting
progressed employee Wiegand brought up the subject of a
possible layoff, without reference to the new pay plan but
rather in view of the pending economic situation, and Malo-
nek replied that it would be made on the basis of seniority.'
Somewhere in the course of the discussion, when one of the
salesmen asked if the $200 salary could be continued, Jones
directed the question to Malonek who replied that if the old
plan were to be retained they would have to lay off three
salesmen .' Further discussion of the gasoline allowance fol-
lowed and the meeting finally broke up on the understanding
that Jones would withhold putting the new plan into effect
until he had consulted with his accountant to see if it would
be possible to retain any of the salary rather than to go on
straight commissions. Later on the afternoon of the 26th
Malonek sought out VanCavage and informed him that "Mr.
Jones had consulted his accountant and that the new pay plan
was in effect."' Whereupon VanCavage went to the other
salesmen and informed them of the final decision.
On the evening of May 26, after receiving Respondent's
final word on the pay change, the six salesmen again met in
a local restaurant and considered a course of action to remedy
their lot. It was agreed among them that they should seek out
a union to represent them and employees Weaver and Wie-
gand first suggested the Machinists and made a preliminary
telephone call to solicit that union's support. The call does
not appear to have been fruitful for a second call was made
thereafter by VanCavage with the approval of all the men;
this time to Teamsters Local 110, the Union herein. A further
meeting was arranged for the following evening May 27, at
which time, at a different local restaurant, the men met with
an employee of the Union, Mrs. Barbara Grenya and her
husband. Mrs. Grenya spoke to them of the advantages of
union membership and representation and the procedure to
be followed in order to achieve it. In response to her presenta-
tion the group joined her later in the evening at the headquar-
ters of the Union where they met with Joseph Burkhard, the
Union's local representative. On this occasion Burkhard went
into considerable detail with the men concerning the means
of achieving representation on their behalf for the purpose of
bargaining collectively with the Respondent. He explained
that they must first individually designate the Union as their
representative and thereafter the Union might seek recogni-
tion from Respondent in one of a number of ways. Thus,
upon obtaining signed authorization cards Burkhard might
request Respondent to recognize the Union as the bargaining
representative. Failing that, or as an alternative, a petition for
a representation election could be filed with the Board's Re-
gional Office, a process which he explained to them in detail.
Or as a final alternative they could engage in a strike for
recognition.
Burkhard presented each salesman with an application for
membership in the Union whereon it was stated that the
employee signing the application did "voluntarily choose and
designate it (the Union) as my representative for purposes of
collective bargaining." Each of the six salesmen filled out and
signed such a card in Burkhard's presence and returned it to
him.' At the trial before me each salesman credibly testified
to this fact, identified his signature on the card, verified the
date of May 27, 1970, contained on it, and confirmed his
intention to designate the Union as his representative in bar-
gaining with the Respondent.9 Employee Dennis Wiegand
was then elected shop steward and was in frequent communi-
cation with Respesentative Burkhard thereafter.
On June 3, 1970, the Union filed with the Board's Regional
Office in Pittsburgh a petition for a representation election
among Respondent's sales employees in Case 6-RC-5516,
the petition bearing the Regional Office's receipt-stamp date
of June 3, 1970, 9:30 a.m. On the same day at approximately
9 a.m. Union Representative Burkhard appeared at Respond-
ent's dealership, identified himself as a representative of the
Union, and upon learning that President Jones was not in his
office or at his nearby home left with Jones' secretary a letter
under the Union's letterhead which read as follows:
E. L. Jones Motors, Inc.
Rt. 53
Summerhill, Pa.
Att: Mr. E. L. Jones
Dear Sir,
June 2, 1970
This letter is to notify you that we , Teamsters Local
# 110, have as of June 1, 1970, enrolled as members of
our Local Union , a majority of your employees at your
Summerhill outlet.
We are at this time, requesting recognition as the sole
and exclusive bargaining agent for these people and ask
that you contact our office , by letter or phone 539-8197,
the time and place most convenient for you to discuss
this matter and secure a labor contract covering hours,
wages and working conditions for these employees.
We also ask that there be no threats, coercion , intimi-
dations or discharge of said employees by you directly or
by any of your supervisors , as any violation as such, can
be considered as an unfair labor practice and handled as
such We ask that conditions remain status quo as of
now.
Trusting this complies with out obligation at this time,
and awaiting your reply I am,
Very truly yours,
TEAMSTERS LOCAL UNION NO. 110
/s/ Joseph W. Burkhard, bjg
Joseph W. Burkhard, bus. rep.
Because the record discloses a number of inconsistencies
relating to the events surrounding the Union's request for
recognition it would be appropriate at this point to resolve the
conflicts and place the events in their proper perspective.
Thus it is claimed by Jones that he received neither the letter
quoted above nor notification of the filing of the election
petition until 12 o'clock noon on June 5 , several hours after
the layoff of three of the salesmen which is alleged to be
discriminatory . Accordingly, the timing of the arnval of the
documents could bear significance to Jones' disputed aware-
ness of his salesmen's concerted activities and of their affilia-
tion with the Union when he laid them off at 9:30 a.m. on
June 5. While it is evident that Jones was away from the late
morning of June 3 until the early evening of June 4, this
Jones- "Mr VanCavage spoke up first " Malonek- "He asked the
questions "
The testimony of VanCavage, Wiegand, and President Jones Malonek
testified that he told them it would be by "seniority or some other means "
I do not accept this qualification placed by Malonek for the reasons of
credibility which I shall detail hereafter (infra p. 10)
The credited testimony employees Rock and VanCavage
The credited, undenied testimony of VanCavage
' The foregoing finding of the employees' organizing efforts is based upon
Burkhard's testimony and the undenied and credited testimony of all six
employees involved
' In view of this positive intent to designate the Union as a bargaining
representative manifest by each employee in his testimony I find it unneces-
sary to consider further the fact that each was told by Burkhard that the
cards would or could be used for the purpose of obtaining a Board election
See N.L.R B v Gissel Packing Co., 395 U S 575
E. L JONES DODGE, INC
absence does not conclusively support his claim that he did
not receive either the request letter or the Board 's notice of
the petition filing until noon of the 5th. With respect to the
letter of request it is the credited testimony of Burkhard that
the letter was prepared for him by Mrs. Barbara Grenya, the
Union 's employee mentioned earlier in this Decision , on June
2 and delivered by -Burkhard to Respondent 's agency on the
morning of June 3, about 9 a .m. Mrs. Grenya 's credited
testimony relates the preparation of the letter on June 2 and
the fact that Burkhard picked it up for delivery . Furthermore,
a notation in Burkhard 's appointment book upon which I rely
indicates that Burkhard was at E . L. Jones Dodge agency at
9 a.m. on June 3, thus confirming his testimony that he
delivered the letter on or about that same time. I accordingly
conclude and find that the Union's request for recognition
was delivered to Respondent on the morning of June 3, and
I reject President Jones' denial of this and his assertion that
he did not receive it until noon of June 5. Jones testified that
he left for out of town in the late morning of June 3. I Have
no hesistancy in indulging in the reasonable presumption that
between then and the earlier arrival of the Union 's letter he
actually read the letter and understood its contents , namely
that the Union represented his salesmen and wished to bar-
gain on their behalf.
There is also a dispute as to the delivery date to Jones of
a notice from the Board 's Regional Office that a petition for
an election had been filed with it on June 3. I am asked to
speculate upon the probabilities supplied by a number of
witnesses-post office employees-that mail will travel on a
set schedule and arrive when it is suppose to arrive in the
usual course of business ; in this instance on June 3. As a
frequent victim of vagaries of mail delivery I am not disposed
to speculate as to this arrival time. I therefore do not rely
upon the notice of petition filing as evidence of Respondent's
knowledge of the Union 's interest in its employees prior to
June 5. In any event it should be noted here , as it certainly
will be noted hereafter , that regardless of Jones' awareness of
the union activity of his employees he was definitely made
aware of their concerted activity as early as May 26 when
they asked him for a meeting.
On the morning of June 5 as employees VanCavage,
Weaver , and Wiegand appeared at the dealership for work,
Malonek called each man to his office , in turn , and told him
that he was being laid off as Respondent was "cutting back"
in his operations . Thereafter the men were given their vaca-
tion paychecks and employee Eppolito was directed to drive
them into Johnstown . After first stopping at the bank to cash
their checks the three were driven to the union hall and from
there to the offices of Attorney Kaminsky where unfair labor
practice proceedings were instituted which have eventually
resulted in the trial of this matter.
The records of Respondent and the credited testimony of
the employees laid off disclose that VanCavage and Weaver
were the oldest in seniority , both having been hired on the
same day , and Wiegand was the fourth oldest . The others, in
order of seniority , were: Letzo, third ; Rock , fifth ; and Ep-
polito, last.
Upon receiving the Union 's request for bargaining Jones
immediately consulted with his attorney. He did not discuss
the contents of the letter with any of his employees nor did
he reply to the Union . Thereafter on June 18 Union Repre-
sentative Burkhard telephoned Jones and asked him if he had
received the request letter . Jones replied that he had received
it but that he did not want to meet with Burkhard , that he
had nothing to say to him , and that everything was in the
hands of his attorney.
711
B. Respondent 's Explanation of the Layoff
Basically Respondent attributes the need for the layoff of
the three salesmen to the worsening economic situation in
which the dealership found itself as a result of an unrealistic
commission and payscale , and it points to the layoff of eight
employees in its repair shop during the same period as further
support for its action . In the choice of salesmen for layoff it
points to alleged personality shortcomings as a guide of its
planned selection.
Because the circumstances surrounding the pay change
and the conflicting factors of the individual layoff selections
bear heavily upon the charge of discrimination in the matter
and ultimately affect the determination of Respondent 's obli-
gation to bargain collectively these will be considered sepa-
rately at this juncture.
1. The institution of the new payscale
Monthly sales figures submitted by Respondent beginning
with November 1969 indicate that during each month
through April 1970 the dealership incurred a net loss. This
fact was reflected , among other ways, by the curtailment of
a considerable number of the shop force in early May, as
noted above . Accordingly Jones determined at this time to
revamp the pay schedule , and by midmonth had presented
this new schedule to the salesmen , by way of General Sales
Manager Malonek . To this point in time nothing appears in
the record to suggest that ulterior considerations were in-
volved . Thus Jones testified without contradiction that the
commission rates were higher than the rate in the industry
generally, the overhead in the shop continued to be excessive,
and that during the busiest months of the auto sales year,
beginning with March , the agency continued to show a loss.
So with this as a backdrop for the meeting which Jones had
with the salesmen on the day after they were shown the new
pay plan the conversations which took place at this meeting
are significant.
The men voiced a concern over several items , particularly
the elimination of the $200 salary and substitution of a draw-
ing account for it , and the reduction of the gasoline allow-
ance But far and above these considerations was the question
of whether there would be any layoffs, and if so, under what
circumstances , having in mind that already there had been
layoffs in the shop . It was to this that VanCavage addressed
himself as the meeting began, specifically inquiring if any
layoffs were contemplated. Malonek , with Jones' concur-
rence, admittedly answered that if the old plan were retained
there would most certainly be layoffs. The evidence is not as
clear that layoffs were to be a part of the new pay plan. Thus
Wiegand testified that Malonek confined his remarks of a
possible layoff to the retention of the old plan , leaving unsaid
what would happen under the new plan , and the credited
testimony of Weaver , VanCavage , and Eppolito supports
this On the other hand Malonek testified that his speculation
as to layoffs was not related to the one plan over the other,
and he specifically denied saying that there would be no
layoffs under the new plan . Suffice it to say that no account
of the May 26 meeting denies the possibility of a layoff,
should the new plan be put into effect . On the contrary, my
overall analysis of all the testimony on the subject would
support a reasonable inference that at the meeting it was
generally understood by all in attendance that layoffs might
well be expected in either circumstances , and I so conclude
and find
What gives substance to the fact that a layoff was definitely
anticipated was a discussion at the meeting of how it would
be effected. Thus when asked this question by VanCavage
Malonek replied that it would be by "seniority or some other
means." Jones, however, did not recall that seniority was
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought up at all at this meeting On the contrary Jones first
stated in his testimony that Malonek had said that those
producing the most would not be laid off. But when asked the
identical question later in his testimony, whether Malonek
had so stated, he replied, "Not that I know of." In this state
of the record, Jones' recollection being self-contradictory, we
are faced with Malonek's admission that seniority would be
one of the criteria, and the testimony of Weaver, Eppolito,
and Wiegand that seniority would be the determinate. In the
light of what transpired, choosing between either version
would be academic, for by Malonek's own criteria, which
included seniority as one of the bases for selection, Respond-
ent failed to retain any salesman with seniority.
In summary, therefore, it is concluded and found that on
May 26, Respondent had announced the institution of a new
pay plan and had acknowledged the likelihood of a layoff, and
told the men that their seniority would be taken into consid-
eration.
2. The selection of salesmen to be laid off
It appears from all of the testimony that 2 days in advance
of their layoff VanCavage, Weaver, and Wiegand had been
selected by Jones and that this fact had become known to
employee Letzo who passed on the information to Wiegand.1I
Jones explains this by stating that before leaving for out of
town on June 3 he gave a list containing the names of the
three to Malonek, instructing him to effect the layoff. Jones
stated that he first told Malonek that he wanted to layoff five
or six salesmen but 15 minutes later he changed his mind and
returned to Malonek with a list containing the names of
VanCavage, Weaver, and Wiegand. Immediately thereafter,
at approximately 10 a.m., he received a telephone call from
a Baltimore dealer and in response to the call left for Bal-
timore to return on the following evening. Thus, in point of
time, it would appear that it was at or shortly after the time
that Burkhard appeared at the agency and left his request to
bargain (supra) that Jones made his final selection of sales-
men to be laid off. A detailed consideration of the reasons
advanced for their selection follows:
George VanCavage: VanCavage was, with Weaver, the
most senior of the six salesmen and the one to whom General
Sales Manager Malonek entrusted the appraisal of cars
traded for the purchase of new ones," a responsibility which
weighed heavily upon the ultimate profit to the agency. Van-
Cavage also had, according to Malonek, authority to give
final approval to another salesman 's "deal" when Malonek
was absent. There was Malonek's testimony concerning what
he considered VanCavage's improper change of an appraisal
of a car during his vacation. After hearing both sides of the
disputed transaction I am persuaded that at most, Van-
" ° The credited, undenied testimony of Letzo and Wiegand
" Malonek testified that VanCavage had the authority to appraise cars,
and although the appraisal was subject to Malonek's check these checks
were made only "every so often " And in Malonek's absence all the apprais-
als were made by VanCavage
I accept this testimony of Malonek. I do not, however, credit him gener-
ally Upon my observation of him as a witness and upon consideration of
numerous items of his testimony which I find lacks the candor of a reliable
witness I rely upon him only insofar as his testimony constitutes, as here,
an admission contrary to his own or Respondent's interest, or, as elsewhere,
where it concerns a subject matter peculiarly within his knowledge, as for
example the operation of the agency
Illustrative of Malonek's testimony which I find lacking in candor is the
tortured explanation of what he considered to be the busiest months of the
year for new car sales, and also his testimony concerning his signature on
a document presented him for identification at the trial, where he indulged
in an excessive amount of hedging and evasion with respect to whether the
material in the document was or was not there when he signed it
Cavage's changed appraisal and the dispute to which it gave
rise was not over an error but over a value judgment, and one
which I have insufficient facts and talent to resolve. Suffice it
to say it appears to have been the only appraisal difference
that arose during VanCavage's tenure. In any event VanCav-
age was never disciplined for his part in the transaction or any
previous one.
Similarly there is Malonek's testimony that VanCavage
was criticized by him for having promised a customer items
not included' on the invoice--different size wheels. Respondent
considered itself bound by the commitment made and claims
to have lost $250 on the deal. VanCavage testified to this
transaction stating that the change of wheels was agreed upon
and was done only after he had received Malonek's oral
approval. I accept VanCavage's version of this transaction
and place no significance on the fact that a record of it had
not been previously or subsequently entered onto the sales
invoice.
Jones was asked at the trial why he selected VanCavage for
layoff. A thorough review of his testimony reveals no specific
reason assigned. Indeed the only specific reply on the subject
was one that linked VanCavage to the shortcomings of the
other salesmen thus:
Q. Well why did you lay off Mr. VanCavage?
A. Look, from the time that these men were in busi-
ness,they weren't the type of employees that I felt that
I would like to have, they would do just about any-thing
to make a sale.
Nowhere else does Jones allude to VanCavage's record as
good or bad. One record, however, the Monthly Sales Anal-
ysis provided by Respondent, did disclose VanCavage's com-
parative productivity in terms of his contribution to the agen-
cy's gross profit between November 1969 and May 31, 1970.
Thus he ranked first for 2 months, second for 2 months, and
third, fourth, and sixth in the separate remaining months.
Upon the foregoing I conclude and find that George Van-
Cavage was the most senior of the salesmen, had a good sales
record, and was selected for layoff by Jones for no stated
reason and that the alleged differences in judgment between
him and Malonek, as described above, were not known to
Jones, or considered by him when he gave VanCavage's name
to Malonek for layoff.
Merle Weaver. Weaver, who shared top seniority with
VanCavage, bore the brunt of Respondent's criticism of the
salesmen. Thus Jones, after lumping VanCavage with the
others, as quoted above, was asked about Weaver and replied
as follows:
The same way, Mr. Weaver, they would take customers,
they would promise things to people, after the cars were
sold without consent of the management, it wasn't just
one or two times, when it was brought to management's
attention and I would tell them to check it, he would go
ahead in a few days or maybe a week or so, they would
be back with the same thing, and it was very hard, once
in a while to even get a good morning from him, he was
very irritable with the customers, I don't have to have
that kind of personnel in the place of business, I mean
I have got a reputation of being in business and there
were constantly conflicts coming in at home, at eleven
o'clock, eleven-thirty.
The specifics which Jones supplied concerning Weaver were
varigd and in some cases not completely accurate Thus Jones
stated that Weaver was not a go-getter, that
He would make sales when they came in, but seldom
when these salesmen came into my place of business and
set down at their desk, would they get up until it was
time to go to lunch, unless somebody came in to buy a
car.
E. L. JONES DODGE, INC.
Yet a study of the monthly sales averages supplied by Re-
spondent discloses that in the same 7 months prior to May
31, 1970, Weaver had the highest gross profit in the organiza-
tion for 3 months, and the second highest for 3 other months.
Jones also accused Weaver of appropriating lumber from
the Jones home then under construction. Jones admitted,
however, that Weaver told him of the incident after the fact.
A further look at this viewed from Weaver's credited tes-
timony discloses that Weaver had asked permission of the
carpenter on the job to take what was deemed to be a piece
of scrap material, and that in fact all that was involved was
a small strip of paneling 5 inches by 16 inches.
Jones also objected to Weaver's frequent complaints about
the muddy condition of the used car sales lot during mid-
winter and early spring. Jones' description of the auxilary car
lot confirmed Weaver's complaints but it would appear from
his testimony that Jones objected to the complaint regardless
of the justification.
Similarly Jones objected to the fact that Weaver's wife had
written to him asking that Respondent hire their son, and
that Weaver had, on one occasion, also made the same re-
quest. There does not appear to have been persistence in the
Weavers' requests and the fault, if any, seems to have been
the son's lack of auto sales experience. The final aggravation
in this matter appears to have been that other people, other-
wise unidentified, also interceded with Malonek for the son's
employment.
One final specific objection to Weaver was the manner in
which he handled the sale of a secondhand truck to the
Speichers sometime in April. From all accounts the purchase
was not a success from either the Speichers' or Respondent's
point of view. Weaver appears to have confused Mrs.
Speicher as to the amount of monthly payments to be made
and he was never able to receive or return the telephone calls
which she testified to have constantly made in protest. It all
came to Jones' attention by a chance encounter with Mrs.
Speicher at the local post office. Jones, however, never
brought the matter to Weaver's attention and although he
reported it to Malonek he does not know if Malonek pursued
it further. Weaver, when questioned at the trial about the
incident, could not recall how the payment difference arose
but he did have an explanation for the poor condition of the
truck-it was a failure on the part of the service department.
In any event, he credibly denied receiving any criticism for
the Speicher transaction.
Upon the foregoing I would conclude and find that Merle
Weaver was selected by Jones for layoff although it was
shown on the record that he was not only the oldest in
seniority by the best producer. I have detailed and considered
the excuses offered by Jones for his selection of Weaver. Upon
my understanding of the timing of the detailed incidents and
their relative insignificance I conclude and find that they do
not support, even as illustrative examples, the poor opinion
Jones expressed concerning Weaver, his personality, and his
work habits.
Dennis Wiegand: Wiegand was the fourth oldest in
seniority and had a sales production record inferior to both
VanCavage and Weaver. Wiegand credibly testified that
when Malonek laid him off on June 5 he told him that he did
not think he would be laid off for long. He was actually
rehired on October 29, a week prior to the trial of this matter.
Jones' evaluation of Wiegand, when asked why he was laid
off, does not comport with Malonek' s assurance to him of an
early recall, and with his actual rehiring. Thus Jones became
emotional in describing the number and the rancor of tele-
phone calls he had received from dissatisfied customers. It
would appear from Jones' generalization that he received
calls directed at everyone; more particularly about VanCav-
713
age and Weaver. But the largest number of calls was reserved
for Wiegand, whom Jones described as irritable and ar-
gumentative in his dealings with prospective customers. He
received at least 10 calls from customers about Wiegand,
most of them at his home and in the late hours of the evening.
These calls he discussed with Malonek at least eight times.
Jones never spoke to Wiegand about the complaints but
Malonek assured him that he had done so. Wiegand testified,
however, that he was never criticized by management for
irritability with customers or making them rash or unfulfilled
promises and I credit these denials. It should be noted at this
point that in the course of his testimonial criticism of Wie-
gand Jones was frequently asked for specific instances of
wrongdoings or alleged shortcomings but the answers were
never supplied. The only specific complaint advanced by
Jones was the fact that on one occasion Wiegand protested
transportation charges that were being placed on the cars he
was selling , a charge required because the cars were being
transported from a distant agency owned by Jones to the one
at Johnstown. Jones admitted that he never disciplined Wie-
gand for this particular complaining or for the conduct of
which he had accused him and noted above. In summary,
upon consideration of all the circumstances, I would con-
clude and find that Respondent did not lay off Dennis Wie-
gand for any of the reasons advanced by President Jones in
his testimony and in support of my conclusion I rely upon
Malonek's assurance of an early rehire and Wiegand's actual
rehire in late October.
C. The Alleged Antiunion Statements of Respondent's
Officers
It is alleged that during the months preceding the layoff of
Respondent's salesmen certain incidents occurred which shed
light upon the true significance of the layoff itself. Employee
VanCavage credibly testified that in January 1970 during the
course of an afterhours installation of a boiler he engaged in
a conversation with President Jones during which Jones re-
marked that he had once had a $100,000 operation that he
closed down because the men tried to unionize. Jones went
on to say that he would not tolerate a union and would
"sooner close the place down than have a union.""
Employee Eppolito credibly described a conversation with
Malonek on the morning of May 28, the day following the
union meeting in which the salesmen signed union authoriza-
tion and application cards (supra). Malonek began his con-
versation by asking Eppolito "how was the meeting last
night." When Eppolito countered by asking what meeting he
was talking about Malonek said that "You boys had a meet-
ing last night.""
The foregoing conversations between representatives of
management and VanCavage and Eppolito clearly constitute
as to the first conversation a threat to close the plant if the
employees joined the Union, and as to the second one, an
effort to create the impression that the employees' union
activities were under surveillance. As such conduct has tradi-
" Jones equivocally denied having this conversation, stating that to his
knowledge he did not recall any salesmen being present on the occasion of
the boiler installation I reject this denial, couched as it was with qualifica-
tions and frequent hesitations
On the subject of Jones' testimony, generally, it is to be noted that al-
though frequently quoted I am relying upon it in support of my findings only
in such instances as it constitutes an admission against Respondent's interest
or concerns facts within Jones' particular knowledge
Employee Weaver credibly testified to a conversation in the fall of 1969
in which Jones told him substantially what he told VanCavage, as detailed
in the text above
" 1 do not credit Malonek's denial of this conversation
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionally been viewed by the Board and courts as unlawful I
accordingly conclude and find that by the actions described
above Respondent, by its threats and creation of the impres-
sion of surveillance, has interfered with, restrained, and co-
erced employees in the exercise of rights guaranteed them by
the Act and has thereby violated Section 8(a)(1) of the Act.
Elsewhere in the record is credible testimony of conversa-
tion and statements not alleged to be violations of the Act,
and in some instances which have occurred at so remote a
point of time as not to be chargeable as a violation of the Act.
Because I view these statements as shedding light upon and
providing an explanation of Respondent's later conduct I
shall set them forth here nonetheless. 14
In the spring of 1970 VanCavage had a conversation with
Malonek during which Malonek inquired where he could
obtain a mechanic. VanCavage suggested that a mechanic
might be available from the nearby Bingler Agency recently
closed down due to union activity. Malonek replied that he
did not think Jones would tolerate anyone coming from a
union shop. Earlier, in the fall of 1969, VanCavage was en-
gaged in a conversation with Malonek in discussing the qua-
lifications of employee Wiegand whom Respondent was
about to hire. Wiegand's former employment was discussed
and Malonek said he did not think Wiegand would be accept-
able because he had come from a dealership that had a union,
and Mr. Jones would not tolerate a union in his shop.15 Wie-
gand credibly testified to a conversation he had with Jones
shortly after he was hired. Jones welcomed him into the
company, hoped he would do well, and proceeded to express
himself on unions. He said that he was very much against
unions and would not tolerate one in his business.16
Upon the foregoing additional incidents which I have de-
tailed above, I conclude and find that at various times begin-
ning in the fall of 1969 Respondent, by its officials Jones and
Malonek, has manifested antipathy towards the unionization
of its employees, a factor which bears significantly upon other
conduct of Respondent set forth herein.
D. Analysis and Conclusions Concerning the Layoff of
VanCavage, Weaver, and Wiegand
It is alleged that the selection of employees VanCavage,
Weaver, and Wiegand was discriminatory in that it was for
reasons of their union activity, as well as because they had
engaged in concerted activities with the other salesmen for
the purpose of collective bargaining and other mutual aid and
protection.
It might well be said that the issue here is not whether the
layoffs themselves were discriminatory but whether it was the
selection of candidates that offended. Thus throughout Re-
spondent's counsel's cross-examination of General Counsel's
witnesses and during the presentation of his own case a strong
argument was made for economic justification of some kind
of personnel cutback. One consideration gives me pause to
any conclusion in that area, however, and should be noted
here. Thus on June 2, when a cutback was being processed
Dalvin Allenbaugh was hired, supposedly as a truck sales-
man. But Malonek admitted that prior to this time all of the
other salesmen sold trucks; and during the month of June and
thereafter, according to Malonek, Allenbaugh not only sold
trucks but new and used cars as well. Significantly, when
Allenbaugh was hired his only prior sales experience was as
a door-to-door salesman. Similarly, in July a salesman named
" Local Lodge No. 1424, International Association of Machinists v
N.L.R B.[Bryan Manufacturing Co], 362 U S 411
" The credited testimony of VanCavage I do not credit Malonek's deni-
als.
" 1 do not credit Jones' denial of this conversation
Scaleno was also hired without prior sales experience. In view
of the serious conflict raised by these admitted hirings at the
very time when economic necessity was being raised as justifi-
cation for layoffs I am not disposed to conclude that Re-
spondent has established its economic defense. But I find it
unnecessary, however, to decide that the cutback was dis-
criminatorily motivated, having before me, as I do, ample
evidence of a discriminatory selection for layoff whatever
kind it may be.
President Jones and General Sales Manager Malonek were
admittedly aware of their salesmen's concerted activity on
May 26 and they were equally aware of employee Van-
Cavage's leadership in this activity. For it was on this day
that Malonek informed Jones that "George would like to
have a meeting with the boys upstairs." Upon this admission
and upon Jones' and Malonek's testimony concerning the
meeting it is reasonable to conclude that when Jones and
Malonek laid off George VanCavage on June 5 it was with the
full knowledge that the salesmen had already joined together
for their mutual welfare and protection, had expressed them-
selves vigorously in that area, and that VanCavage was their
leader.
VanCavage's seniority and sales record has already been
considered (supra) and places him in the forefront among the
salesmen. I would find it most difficult to understand why a
salesman of his proven ability would have been laid off for
economic reasons 3 days after there had been hired a door-to-
door salesman for generally the same type of work. Viewing
VanCavage's prominence in the concerted activity of the
salesmen I am supplied, by reasonable inference, the only
obvious reason for his selection for layoff. Having no other
reasonable choice, to this point, I conclude and find that
VanCavage was selected for layoff at least for engaging in
concerted activities and for his leadership of it.
Over and above the concerted activity to which all of the
salesmen were known to have engaged the evidence presented
herein and the findings that I have already made persuade me
that at the time of the layoff on July 5 Jones and Malonek
were aware of the Union's selection by the salesmen as their
representative and that it acted accordingly. In the first place
Malonek's inquiry of Eppolito concerning the "meeting last
night," referring to the union meeting, clearly discloses the
requisite knowledge. But the sequence of events on June 3,
before Jones left the dealership for Baltimore is even more
persuasive.
Thus Union Representative Burkhard appeared at the
dealership at 9 a.m. and in Jones' still unexplained absence
at that particular time left a letter addressed to him; and
sometime after 10 a.m. Jones left the dealership for Bal-
timore. It is hard to believe that in an organization as charged
with employee unrest as the dealership then was that a letter
from the Union to the company president would either be
ignored when it arrived or go unnoticed thereafter. And if this
unlikely situation did occur it is even more unlikely that
during that period between 10 a.m. June 3, after Jones had
left, and 7 p.m. June 4, when he returned, that General Sales
Manager Malonek, who admits to reading incoming mail,
would not have been alerted to and become curious about a
letter from the Union. And finally from the time that Jones
arrived back on the evening of June 4 until he gave Malonek
the revised list of salesmen scheduled for layoff at 9 a.m. the
next morning it seems strange indeed that Jones' attention
would not have been directed by someone to a letter from the
Union. On the contrary, under all of the circumstances
herein, including the probabilities noted above, and upon all
the evidence, I conclude and find that not only was Jones
aware of the concerted activity of the salesmen and Van-
E L. JONES DODGE, INC. 715
Cavage's leadership in it (supra), but he also knew that union
activity was involved as well.
It is a short step to conclude, as I do, that Jones' selection
of VanCavage, Weaver, and Wiegand, all instrumental in
bringing in the Union, was made because of their activity and
leadership in behalf of the Union and bunging it into his
organization, an eventuality he had repeatedly stated he
would not tolerate (supra).
Respondent, of course, not only argues vigorously in sup-
port of its right to operate its business economically but
points to a variety of individual shortcomings to justify the
selection of the salesmen for layoff. I do not quarrel with
Respondent's economic right to effect a layoff, or indeed to
close the plant altogether. But this is not the issue here. What
is involved is using the economic issue; legitimate though it
may have proven to be, to punish employees for engaging in
collective action guaranteed them by law. Respondent's mo-
tives in this respect are clearly suspect when viewed against
the stated antipathy towards unionism which Jones and
Malonek had previously expressed on numerous occasions
(supra) and which I have found to- constitute independent
violations of the Act.
With regard to the catalogue of complaints registered
against VanCavage, Weaver, and Wiegand I refer simply to
my findings with regard to them noted above (supra) and
reflect that for the most part they are but a collection of
unsubstantiated afterthoughts. For those instances which do
have a degree of substance, such as Weaver's taking of a piece
of scrap lumber, his ordering a change of equipment, and the
poor handling of a truck sale (supra), and Wiegand's irritabil-
ity, arguing with customers, and the questioning of transpor-
tation charges (supra), I note that in not one case was the
employee personally criticized or reprimanded. Under such
circumstances the personal objections which Jones and Malo-
nek had to VanCavage, Weaver, and Wiegand which they
claim to have prompted their selection of these men falls into
the category of employee faults once considered by the
United States Court of Appeals for the Fifth Circuit in Agwi-
lines v. N.L.R.B. (87 F.2d 146) where in it was stated (at p.
154) that "the difficulties inherent in [their] case[s] only
became seriously insupportable to [their] employer when they
became active in the Union."
Upon all of the foregoing considerations and based upon
the findings previously made I conclude and find that Re-
spondent, through its officers Jones and Malonek, selected for
layoff, and has failed and refused to reinstate employees
George VanCavage, Merle Weaver, and Dennis Wiegand"
for reasons of their union membership and activity thereby
discriminating against them in violation of Section 8(a)(3) of
the Act, and interfering with, restraining, and coercing them
and all its employees in the exercise of their statutory right
of self-organization in violation of Section 8(a)(1).
Independently, I have found VanCavage was selected for
layoff because of his known leadership in the concerted activi-
ties of the salesmen . Because this layoff of salesmen , no mat-
ter how economically grounded, also had, whether intended
or not, the purpose of thwarting the concerted activity of the
employees," I conclude and find those other salesmen,
Weaver and Wiegand, whose layoffs were linked with Van-
" I do not credit the testimony of Jones and Malonek that the laid off
salesmen engaged in the spreading of rumors that the agency was closing
down. Accordingly, I do not accept this as Respondent ' s reason for failing
to reinstate the men . I do note, however, that Wiegand was belatedly rein-
stated in October 1970
11 "The test is whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of employee
rights under the Act " N.LR.B. v Ford, 170'F 2d 735, 738 (CA 6)
Cavage's were also, in addition to the discrimination visited
against them and found to be unlawful (supra), interfered
with, restrained, and coerced in violation of Section 8(a)(1),
as victims of the interference, restraint, and coercion visited
upon VanCavage," and I so conclude and find.
E. The Refusal To Bargain
1. The appropriate bargaining unit
It has been stipulated by the parties and upon independent
consideration I conclude and find that the following is an
appropriate unit for the purposes of collective bargaining:
All new- and used -car salesmen employed at the Re-
spondent's Summerhill, Pennsylvania, facility; exclud-
ing office clerical employees, service department em-
ployees, and guards, professional employees and
supervisors as defined in the Act.
2. The Union's majority status
An analysis of the authorization cards signed by the Re-
spondent's salesmen discloses that each of the six salesmen in
Respondent's employ on May 27, 1970, signed a card in
Union Representative Burkhard's presence authorizing the
Union to represent them and bargain collectively in their
behalf. Each salesman appeared as a witness before me and
acknowledged his signature and the date of it, and has in-
dicated also that his intention was and is to designate the
Union as its bargaining representative. Upon this clear show-
ing of the Union's unanimous selection by the salesmen on
May 27, 1970, I conclude and find that on that date and at
all times since then, including all times after the discrimina-
tory discharge of three of the six signers on June 5, the Union
was the duly selected bargaining representative of the
majority of the Respondent's salesmen in a unit found to be
appropriate for the purpose of collective bargaining.
3. The request and refusal to bargain
Regardless of the precise date or time upon which the
Union's request to bargain was received, and without in any
way prejudicing my conclusions and findings made elsewhere
in this regard, it is conceded that Respondent received the
request to bargain in the unit stipulated to be appropriate it
is equally well established upon the undenied testimony of
Union Representative Burkhard that on June 18 when Burk-
hard telephoned Jones to inquire if he had received a bargain-
ing request and if he would meet with him that Jones replied
that everything was in his attorney's hands and that he would
not meet with him.
I have concluded and found that since May 27, 1970, the
Union represented, in fact, a majority of Respondent' s sales-
men. It is well settled, of course, that an employer may insist
upon a Board election as proof of a union's majority status.
None was ever insisted upon here, however, and no doubt of
a majority was ever expressed by the Respondent.
The Supreme Court in N.L.R.B. v. Gissel Packing Co. (395
U.S. 575), consider at great length the effect upon employee
majority status of employer conduct found to be excessively
coercive. The Court however did not limit its total considera-
tion to this area, but also considered the use of bargaining
orders in cases involving, as here, less "outrageous" and "per-
vasive" employer unfair labor practices. Thus it stated (395
U.S. at 614):
The only effect of our holding here is to approve the
Board's use of the bargaining order in less extraordinary
cases marked by less pervasive practices which nonethe-
" Cf. Arnold ware, Inc., 129 NLRB 228
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less still have the tendency to undermine the majority
and impede the election processes. The Board's au-
thority to issue such an order on a lesser showing of
employer misconduct is appropriate, we should reem-
phasize, where there is also a showing that at one point
the Union had a majority, in such a case, of course,
effectuating ascertainable employee free choice becomes
as important a goal as deterring employer misbehavior.
In fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration the
extensiveness of an employer 's unfair practices in terms
of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board finds
that the possibility of erasing the effects of the past prac-
tices and of insuring 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 bar-
gaining order, then such an order should issue.
Heretofore I have found that Respondent not only threat-
ened to close his agency if the Union came in and gave the
employees the impression that they were being spied upon
(supra) but I further found that when it was learned that the
employees had engaged in concerted activities as well as un-
ion activities2' it promptly disposed of three of its salesmen
engaged in this activity by laying them off. For reasons previ-
ously stated (supra) I have found this unlawful discrimina-
tion to be interference, restraint, and coercion of the em-
ployees in the exercise of their statutorily guaranteed rights
of self-organization.
Basic among the rights guaranteed employees is the right
to freely select a representative by means of a Board-con-
ducted election. Here one was sought by petition filed in Case
6-RC-5516, later withdrawn upon the filing of charges in the
instant case. I can think of no right more susceptible to
interference and coercion than the right to freely vote in such
an election. If, then, in the face of the threat to close the
agency, the impression of being spied upon, and the laying off
of half the bargaining unit the employees are not persuaded
of their employer's determination to thwart their wishes it
would seem that nothing would ever persuade them On the
contrary, as I understand the Gissel holding quoted above,
this is precisely the sort of employer conduct which would
justify the Board's issuance of a bargaining order. Accord-
ingly, upon consideration of the proven majority status of the
Union, the request to the Respondent to bargain and its
refusal, and in the light of Respondent's implicit determina-
tion, by its unlawful conduct to thwart the choice of em-
ployees, I conclude and I find that it has refused to bargain
with the representatives of its employees in violation of Sec-
tion 8(a)(5) of the Act and that its refusal fully warrants the
issuance of a bargaining order which I shall recommend.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section IV,
above, occurring in connection with the Respondent's opera-
tions described in Section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
" Concerted activity need not be union activity to be protected and the
protection may be found where "only one person is seeking to induce action
from a group " Salt River Valley Association v NL R B, 206 F 2d 325
(C A 9), NL.R B v Schwartz, 146 F 2d 773 (C A 5)
VI THE REMEDY
I have found that Respondent has interfered with, re-
strained, and coerced its employees by threatening to close its
agency if the Union came in and by creating the impression
of surveillance, that it has discriminatorily laid off three of its
salesmen and has refused to bargain with its salesmen's duly
designated bargaining agent . I shall recommend that Re-
spondent cease and desist from this conduct, and because the
nature of the unfair labor practices committed here are of
such gravity as to present a threat of future violations of the
Act I shall recommend that Respondent cease and desist
from in any other manner interfering with, restraining or
coercing its employees in the exercise of their statutory rights.
Affirmatively I shall recommend that Respondent reinstate
Merle Weaver and George VanCavage with backpay to each
of them and to Dennis Wiegand whom it has already rein-
stated, to be computed in the customary manner," with inter-
est at the rate of 6 percent per annum,22 and that it post
appropriate notice of compliance with such Order as the
Board issues
Upon the foregoing findings of fact, conclusions of law and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended.2J
ORDER
Respondent, E. L. Jones Dodge, Inc, its officers, agents,
successors , and assigns shall-
1. Cease and desist from:
(a) Threatening its employees that it will close its
agency if they select a union to represent them.
(b) Creating the impression among its employees that
their union and concerted activities are under surveil-
lance.
(c) Discouraging membership in International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 110, or any other labor
organization by terminating the employment of their
employees and thereafter failing and refusing to reinstate
them because they engaged in concerted and union ac-
tivities.
(d) Refusing to bargain with the aforementioned In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
110, as the exclusive representative of the employees in
the following unit found to be appropriate for the pur-
poses of collective bargaining:
All new- and used-car salesmen employed at Re-
spondent's Summerhill, Pennsylvania, facility; ex-
cluding office clerical employees, service depart-
ment employees, and guards, professional
employees and supervisors as defined in the Act.
(e) In any other manner interfering with, restraining,
or coercing its employees, or unlawfully discriminating
against them in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action which it is deemed
will effectuate the policies of the Act:
" F. W. Woolworth Company, 90 NLRB 289
Isis Plumbing & Heating Co., 138 NLRB 716
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations , findings , conclu-
sions, and recommended Order herein shall, as provided in Section 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
E L JONES DODGE, INC.
(a) Offer reinstatement to Merle Weaver and George
VanCavage whom it terminated and thereafter failed
and refused to reinstate , dismissing , if necessary any
individual hired since June 5, 1970.
(b) Make whole the aforesaid employees and Dennis
Wiegand , whom it has since reinstated , in the manner set
forth in "The Remedy."
(c) Upon request bargain collectively with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Local Union 110, as
the exclusive bargaining representative of its employees
in the unit set forth above.
(d) Post at its Summerhill , Pennsylvania , facility, the
attached marked notice "Appendix [Board's Appendix
substituted for Trial Examiner]. "I' Copies of said notice,
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
717
on forms provided by the Regional Director for Region
6, shall, after being duly signed by the Respondent, be
posted immediately upon receipt thereof in conspicious
places, and be maintained for 60 consecutive days. Rea-
sonable steps shall be taken to insure that said notices are
not altered , defaced, or covered by any other material.
(e) Notify the said Regional Director in writing,
within 20 days from the receipt of the Decision, what
steps it has taken to comply therewith.25
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 6, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "