East Bay Rambler, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1967

168 N.L.R.B. 1000 (N.L.R.B. 1967)

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Bay Rambler , Inc. and Automobile Salesmen's
Union, Local 1095, Retail Clerks International As-
sociation, AFL-CIO. Case 20-CA-4341
December 27, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 15, 1967, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed a brief in support of the
Trial Examiner's Decision and in answer to
Respondent's exceptions and 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, East Bay Rambler, Inc.,
San Leandro, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard at San Francisco, California, on April 18 and 19,
1967, upon a complaint issued on February 2, 1967,'
alleging that the Respondent, East Bay Rambler, Inc.,
had violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. In its answer, the
Respondent denied the commission of any unfair labor
practices. The issues presented are whether or not the
Respondent (1) engaged in unlawful interference,
' Based upon a charge filed on December 14, 1966, by Automobile
Salemen 's Union, Local 1095.
168 NLRB No. 143
restraint, or coercion, (2) discharged employee Clifton
Morrison because of his union activities, and (3) unlaw-
fully refused to recognize and bargain with the charging
Union.
Upon the entire record,2 my observation of the wit-
nesses, and consideration of the briefs filed by the
General Counsel and by the Respondent following an ex-
tension of time, I make the following:
FINDINGS AND CONCLUSIONS3
1. THE UNFAIR LABOR PRACTICES
A. Background and Summary of Events
Respondent is a California corporation engaged in the
retail sale and service of new and used automobiles at its
place of business in San Leandro, California. Walter
Wilner is the president and sole owner of all the stock of
Respondent. Marine Cutler is the sales manager. Re-
spondent's answer admits that Wilner and Cutler are
supervisors within the meaning of the Act.
In November 1960, following a consent-agreement
election,4 the Union was certified as the collective-bar-
gaining representative of a unit consisting of Respond-
ent's automobile salesmen; and on December 1, 1960,
Respondent and the Union entered into a 2-year collec-
tive-bargaining agreement. In September 1962, one of
Respondent's employees filed a petition for decertifica-
tion of the Union. Following a hearing and an election
which the Union lost,5 the Regional Director in
November 1962 certified that no labor organization was
the exclusive bargaining representative of the unit
referred to.
Since that time, the relationship between Respondent
and the Union has been inimical. In August 1964, the
Union began to picket Respondent's place of business. In
response to Respondent's objection to the picketing, the
Union, by letter dated August 5, 1964, disclaimed all in-
terest in representing Respondent's salesmen, and stated
that the picketing was for the purpose of advising the
public that the hours, wages, and working conditions of
Respondent's salesmen were below prevailing area stan-
dards. On January 29, 1965, the Union filed a petition for
certification. Following a consent-agreement election
which the Union lost,s the Regional Director again cer-
tified that no union represented Respondent's salesmen.
On or about July 20, 1966,7 the Union again began
picketing Respondent. Two days later, on July 22, it filed
' During the hearing, ruling was reserved on Respondent's offer in
evidence of a series of documents, identified as Resp. Exh. I through 43,
relating to prior Board proceedings in which Respondent and the charging
Union were involved. I find that the Respondent is entitled to have the
documents considered in connection with the 8(a)(5) allegations, and
hence that they are admissible Accordingly, it is ordered that Resp Exh.
I through 43 be, and they hereby are, received in evidence and made a
part of the record herein.
' No issue of commerce is presented. The complaint alleges and the
answer admits facts which establish that Respondent is an employer en-
gaged in commerce and in operations affecting commerce within the
meaning of the Act I find such facts to be as pleaded. I further find that
the charging Union (hereinafter called the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
4 The Union won by a vote of 4 to 3.
Three employees voted against the Union, one voted for, and two bal-
lots were challenged.
I The record does not disclose the vote
7 All dates hereafter mentioned relate to 1966 unless otherwise stated.
EAST BAY RAMBLER, INC. 1001
a charge alleging that Respondent had unlawfully
threatened employees. On July 27, Respondent filed a
charge alleging that the Union's picketing violated Sec-
tion 8 (b) (4)(i) and (ii)(B) of the Act. On July 28, how-
ever, Respondent withdrew its charge and filed a petition
requesting an election among its salesmen . On or about
August 4, the Union stopped picketing, and by letter
dated August 15, it informed Respondent that:
... the Union does not claim to represent any of
your employees and does not seek recognition from
your company or the execution of a collective bar-
gaining agreement between your firm and the Union,
and any act or conduct contrary thereto which may
have previously taken place is hereby withdrawn and
disclaimed ....
The letter further stated that if Respondent failed to meet
prevailing area standards, the Union would take ap-
propriate action so to advise the public. On August 30,
the Union withdrew its 8(a)(1) charge against Respond-
ent. By letter dated September 7, the Union advised
Respondent that it "is not presently attempting to or-
ganize your salesmen" and again threatened informa-
tional picketing.
By letter dated September 14, a field examiner for the
Regional Office suggested that Respondent withdraw its
petition for an election in view of the Union's disclaimer.
The Respondent having failed to adopt the suggestion,
the Regional Director, by letter dated September 22,
dismissed its petition on the ground that investigation had
revealed no conduct inconsistent with the Union's dis-
claimer. On October 3, Respondent requested Board
review of the dismissal, asserting that, subsequent to the
September 7 disclaimer, the Union had communicated
with some of Respondent 's employees in an effort to or-
ganize them. On November 4, the Board affirmed the
dismissal on the ground that Respondent had advanced
no facts which would support a finding that the Union
was claiming "immediate recognition."
From and after the time the picketing began, conversa-
tions occurred between Respondent and some em-
ployees, and among the employees themselves , regarding
the matter 'of night work. During October, several em-
ployees discussed the possibility of unionization in order
to stop the night work, and employee Morrison volun-
teered to communicate with the Union. When he
telephoned about November 1, the Union's secretary-
treasurer, Chester Ansley, stated that he would call Mor-
rison in a few days, after he had talked to the Union's at-
torney regarding a matter pending in Washington which
he did not understand. On November 4, Ansley, referring
to the affirmation of the dismissal of the election petition,
told Morrison by telephone: "We just got the green light.
It was dismissed in Washington , D.C., and we can now
send out bargaining cards. " Ansley mailed union mem-
bership cards to Morrison , who received them on
November 5, and obtained signatures thereon from
several salesmen on November 7. On November 8,
Respondent discharged Morrison, allegedly because of
his poor sales work.
By letter dated November 16, President Wilner
requested the Board to reconsider its letter of November
4 affirming the dismissal of its election petition , stating:
... I have conclusive and positive proof that as of
November 7, 1966 (exactly three days after your
writing said letter) the union through their chosen
representative had contacted our sales personnel and
given them signature cards for their authorization to
have the union represent them... .
On November 21, the Board informed Respondent that
reconsideration was not warranted inasmuch as it had
"specifically considered continued attempts by the union
to solicit union membership or authorization cards."
On November 29, Ansley informed President Wilner
that the Union represented a majority of Respondent's
salesmen and requested , recognition and bargaining.
Wilner refused , stating that he questioned the Union's
majority status. By letter dated December 2. Ansley
again requested recognition and a bargaining conference.
Wilner could not be present and the parties did not meet.
On December 6, Wilner forwarded Ansley's letter of
December 2 to the Board, asserted that the Union's dis-
claimer was invalid , and once again requested recon-
sideration of the dismissal of its election petition ." In ad-
dition , on December 8, Repondent filed a new petition
for an election.
As already noted, the Union filed the charge herein on
December 14, and the complaint was issued on February
2, 1967. On February 8, 1967, the Regional Director
dismissed Respondent's new petition because of the is-
suance of the complaint alleging Respondent 's unlawful
refusal to bargain with the Union . Respondent then
requested an extension of time to seek review of this
dismissal , and was informed by the Board on February
17, 1967, that it should serve copies of such request on
the parties and advise the Board of such service. On
March 10, 1967, the Board notified Respondent that the
matter was closed because the latter had not notified the
Board regarding service of the parties, and the time for fil-
ing a request for review had expired.
B. Interference , Restraint, and Coercion
1. The evidence
As noted, the Union engaged in picketing Respond-
ent's premises from July 20 to August 4. While em-
ployee Morrison was in President Wilner 's office during
the picketing in August, Wilner asked him to shut the
door and then questioned him about his attitude toward
the Union . Morrison replied that he had been "out of the
union area" for some time. Wilner then stated that
Respondent "needed extra hours" in order to obtain an
edge over competitive dealers.9
In early August, during a breakfast conversation with
Sales Manager Cutler regarding Respondent's policy of
remaining open after 6 p.m., Morrison expressed dis-
agreement with Cutler's view that the salesmen would
suffer a loss of income if the premises were closed at
night. While they were discussing the advantages and dis-
advantages of the Union, Cutler stated that "if worse
came to worse he could lay off everybody and he and Mr.
Wilner would run the operation."
In January, Wilner had received a bulletin from a car
dealer's association announcing a series of meetings to
discuss retirement plans, and had attended one such
meeting on February 16. During a meeting of salesmen
held shortly after the picketing ended on August 4,10 he
8 The record does not disclose what , if any , reply was sent.
9 Respondent 's 1960 contract with the Union had limited night work by
the salesmen, and Wilner was concerned about the competitive disad-
vantage that he might suffer if night work were again curtailed.
"Morrison testified without contradiction that the meeting was
"[v] ery close " after the picketing ceased.
1002 DECISIONS OF NATIONAL
announced that he was working on an employee pension
plan that would become effective about the first of the
year. Wilner had posted his July 28 petition on a wall dur-
ing the election, and he mentioned the filing of the petition
during the meeting. In late August and early September,
he sought further information regarding pension plans.
Early in September, during a dinner party held by
Respondent for its salesmen, Cutler and Morrison again
discussed the Union and Respondent's working hours.
Morrison stated that the evening hours were disad-
vantageous and disturbing to the salesmen. During the
discussion, Cutler stated that "he and Mr. Wilner could
run the operation and that they didn't need any em-
ployees." He also informed Morrison that Respondent's
premises would close at 6 p.m. beginning on the following
Monday. On the following Monday, Cutler announced at
a sales meeting that the premises would close at 6 p.m.
About 2 or 3 weeks later, because business had declined,
Cutler reverted to late hours, but stated that evening
work by the salesmen would be voluntary.
Cutler testified that various salesmen complained to
him that the Union had communicated with them. He
could not recall when he first received such information,
and testified that a "poor guess at best would be around
September." Sometime in November, an unnamed
salesman mentioned to Cutler "that the men had signed
cards for the union to represent them."11 Cutler could not
recall the date on which he received this information.
However, he testified that it was after Morrison's
discharge and that, to the best of his recollection, a
prehearing affidavit which he had furnished to a Regional
Office field investigator correctly stated that he received
the information "[a]pproximately one week after Mor-
rison resigned" on November 8, and that "[t]his was
probably around November 15, 1966." Cutler im-
mediately sought out employee Savage, with whom he
was quite friendly, to obtain verification of this informa-
tion. Cutler's testimony regarding his conversation with
Savage was as follows:
Q. Now, returning to this conversation with Mr.
Savage that we have made reference to, Mr. Cutler,
is it correct to say that you entered Mr. Savage's of-
fice immediately after learning that the men had been
signing Union cards?
A. Yes.
Q. And is it correct that you then closed the door
and then spoke to Mr. Savage about this subject?
A. Yes.
Q. And is it also correct that you asked him at
that time, "What is all this about the boys signing up
for Union representation"?
A. Yes.
Q. And that he, in response to this question, told
you that the men had all signed up?
A. Yes.
Q. And then you asked him specifically if he had
signed up, is that correct?
A. I think it was the other way around.
Q. I beg your pardon, sir. I don't understand.
A. I think I asked him if he had signed, and he
said yes, and then he told me that everybody had
signed. I think this was the way it was.
Q. And is it not also correct that you asked him
why he had signed a card?
LABOR RELATIONS BOARD
A. Yes.
Q. And what did he reply to that question?
A. He said that everybody else had signed and
that it was a card for a vote. That is what he told me.
Q. You said a moment ago that you were quite
surprised. Did you in fact state to Mr. Savage, "You
mean every single person has signed?"
A. I may have said that. It doesn't sound un-
reasonable. In fact, I did, because he told me that the
reason he signed was because everybody had signed.
So he must have said it.
Q. Would it be fair to state that you were shocked
by it, by this information?
A. Truthfully, I would say that would be an un-
derstatement.
Q. As a matter of fact, it would be more accurate
to state that you actually took this as some sort of an
affront, or personal hurt, is that correct, Mr. Cutler?
A. I wouldn't really like to put it that way. I will
say that I was a little bit hurt about it, yes. They are
my boys.
Q. Is this because you felt that you had this sort
of personal relationship with them and that they
wouldn't have gone to the Union without telling you
about it?
A. There again, that is very difficult to say. I think
more than anything, the fact that in my opinion we
gave the boys everything, or more, than the Union
could give them, and for the life of me, truthfully, and
I make no bones about it, I couldn't understand why
they would want to go to the Union. This was it more
than anything, whether I am right or wrong.
* *
Q. Now, returning to this conversation with Mr.
Savage for a moment, Mr. Cutler, during the course
of this conversation do you recall specifically asking
Mr. Savage if Sam Fagery had signed for the Union?
A. I don't recall specifically asking him about any
individual but rather that everybody had signed,
whoever that may have included at the time.
Q. Now, you testified yesterday, under question-
ing from Counsel for the General Counsel and
myself, in answer to certain questions concerning
that meeting with Mr. Savage.
Now, to the best of your knowledge, were your an-
swers basically correct as you gave them yesterday?
A. Most of them were. However, I did some
researching and there are some areas there where ap-
parently my memory, to use the Trial Examiner's
term, was exhausted.
Q. What was that in regard to?
A. Well, apparently I must have mentioned that
- Mr. Fagery's name must have come up when I
talked to Vern Savage as to whether or not he had
signed a card. It apparently did.
" The record does not bear out the statement in Resp br p. 25 that the
salesman was Fagery.
EAST BAY RAMBLER, INC. 1003
Q. Do you mean that you had asked Mr. Savage
as to whether Mr. Fagery had signed a card or how
did that get into the conversation?
A. Well, as I say, at the time I was rather emo-
tionally upset about it and I asked Vern Savage if
everybody had signed and to which I thought he
replied, "Everybody." In fact, I am sure he did and
then I included also Mr. Fagery and he said, "Yes. In
fact, Sam Fagery was also involved in helping getting
these cards signed."
Q. I am not sure I understand your answer. Will
you repeat it, please?
A. Yes. I asked Mr. Savage if the people had
signed cards, the salesmen, and he said, "Yes," and
I said, "All of them?" and he replied, "Yes," and I
said, "Did Sam Fagery sign also?" And he said,
"Yes. In fact, Sam assisted Cliff Morrison in helping
get these cards signed."
They did this together. I gather this is what he
meant.
On the same day, Cutler admittedly asked employees
Lemos and Lentz whether "they had signed the union
cards." The record does not disclose their replies. Cutler
thereupon reported his conversations to President Wilner
who, as noted, requested the Board on November 16 to
review the dismissal of his election petition, asserting that
he had conclusive proof that the Union had solicited
membership among its salesmen.
In late November or early December, Wilner and em-
ployee Short took an automobile out for a test drive. As
they were driving along, Wilner asked Short, "What do
you think about the Union?" 12 When Short answered that
he did not know much about it, Wilner's response was,
"Well, you signed one of the cards, didn't you?" On
direct examination by the General Counsel, Short
testified that he replied "Yes." The General Counsel then
asked, "Do you recall if anything further was said at that
time?" Short replied, "No, nothing." On cross-examina-
tion, when asked what he said in response to Wilner's
inquiry as to whether he had signed a card, Short testified,
"I said, `So has everybody else, to my knowledge."'
On December 13, Respondent sent to the auto dealer's
association a request for participation in a retirement plan
together with a deposit check. During the first 2 weeks of
December, Wilner conducted a meeting of his salesmen
sometime in the middle of the day.13 Cutler was not
present at that meeting.14 Wilner began the meeting by
stating that he was aware that the employees had all
signed cards for union representation, and that they had
a right to do so. In addition, he stated that he was working
on a pension plan for employees with at least 1 year's em-
ployment, and that it would be paid for by the Employer
and the employee.
2. Analysis and conclusions
Respondent does not deny either the interrogation by
Cutler and Wilner or Wilner's promise of possible pen-
sion benefits for the salesmen. Its position is that this con-
duct was not unlawful . I disagree.
Contrary to Respondent's contention, Wilner's inter-
rogation of Morrison and Short regarding their attitude
toward the Union was neither isolated nor noncoercive.
Since three other employees, Savage, Lemos, and Lentz,
were also interrogated by Cutler, making a total of five of
Respondent's eight employees, it appears that the inter-
rogation was widespread. Moreover, Wilner had no legiti-
mate purpose in questioning the two employees and gave
them no assurances that there would be no reprisals if
they favored the Union. Cutler's interrogation of the
other three employees on or about November 15 regard-
ing the identity of salesmen who have signed union cards
was coercive for somewhat similar reasons. He did not
advise them that his questions were solely for the purpose
of determining the truth of the Union's claim of majority.
Indeed, he could not truthfully have so advised them,
since the Union did not request recognition until
November 29. Nor did he reassure them against reprisal.
I find that the interrogation was unlawful. Cohen Bros.
Fruit Co., 166 NLRB 288.15
I further find that Wilner's promises of possible pen-
sion benefits, during the August and December meetings
of his salesmen, were unlawful. For one thing, the fact
that Wilner conducted these meetings was unusual. In ad-
dition, the timing of the meeting (soon after Respondent's
July 28 petition for an election was filed, and again
shortly after the Union's November 29 demand for bar-
gaining), and Wilner's reference to his election petition
and to the union cards signed by the salesmen, indicate an
intention to influence them to reject the Union as their
bargaining representative . The fact that Wilner had made
inquiries regarding a pension plan the preceding January
furnished no justification for utilizing the plan for that
purpose. And to call Wilner's promises mere "progress
reports" to the salesmen, as Respondent does, in no way
diminishes their coercive impact.
Finally, there is no merit to Respondent's assertion that
the Union was purporting to disclaim any intention of
representing the salesmen at the time of the August meet-
ing, an assertion which implies that Wilner thus had no
reason to attempt to influence the salesmen's choice of
bargaining representative during that meeting. The record
indicates, and I find, that the meeting took place in the
early part of August, and that the earliest disclaimer was
not made until August 15. There was thus ample reason
for Respondent to attempt to influence its salesmen in
August as well as in the following December, when the
12 Short testified that Wilner asked the question "nonchalantly" and
that it was "just a passing remark."
13 Cutler testified that sales meetings were held the first thing each
morning, that he conducted most of them , but that occasionally Wilner
conducted a meeting. Employee Lemos testified that during his 6-month
period of employment by Respondent, Wilner conducted two or three
meetings Employee Morrison testified that during his 5-month period of
employment , Wilner conducted no more than three or four sales meetings
14 Cutler testified that he "slept in" that morning I interpret that phrase
to mean that he slept later than usual. Employee Lemos testified that Cu-
tier had conducted a sales meeting "earlier in the day." This indicates that
Cutler had held a sales meeting when he arrived that morning.
is Nalco Chemical Company, 163 NLRB 68, relied on by Respondent,
is inapposite since , in the circumstances of that case , the interrogation and
interference were found to be de minimis . Among other things , after only
5 of the approximately 1,000 employees were questioned by a supervisor,
the plant manager put an end to the questioning in order to avoid coercion.
In the instant case , the questioning was widespread and Respondent's pre-
sident participated therein.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union no longer disclaimed its representative status.
For the reasons stated, I find that Respondent inter-
fered with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) by the interrogation and promises
referred to above.16
C. The Discharge of Morrison
1. The evidence
a. Morrison 's earlier antiunion and later union activities
card while breakfasting together . Later that morning,
Morrison gave a card to employee Short, who was in
Morrison 's office, and Short signed. While employee
Lemos was standing just outside his own office , Morrison
handed him a card and Lemos signed . Morrison also ap-
proached employee Savage, to whom he had given a card
earlier in the day, and asked whether he intended to sign.
Savage, who was standing in front of his office door,
walked to his desk and signed.18
b. Morrison's probation
Clifton Morrison was employed as an automobile
salesman by Respondent sometime in June. During the
earlier portion of his employment, Morrison appeared to
be antagonistic to the Union. He kept Sales Manager
Cutler informed regarding telephone calls and letters
received from the Union. During the picketing in July, he
appropriated a picket sign and took it to Cutler and
Wilner, who instructed him to return it. And as noted,
during the picketing in early August, in response to inter-
rogation by Wilner, Morrison replied that he had been in-
active in union affairs for some time.
Reference has already been made to the August and
September conversations, during which Morrison ex-
pressed opposition to night work and Cutler stated that
the business could be operated without employees.
About the time the picketing ended in August, the
salesmen's interest in the Union had waned.17 In Oc-
tober, while Respondent was holding a special showing of
new cars at a shopping center, some of Respondent's
salesmen again became dissatisfied with their hours, and
employees Fagery, Lentz, and Morrison discussed the
desirability of communicating with the Union. Morrison
testified that the discussion took place in early October.
Employee Short testified that the dissatisfaction and
union discussions began late in October. Three or four
days later, the three-named employees as well as em-
ployees Savage and Short discussed the matter of calling
the Union, and Morrison volunteered to do so.
Morrison telephoned Union Secretary-Treasurer An-
sley on or about November 1, talked to him again on
November 4, and received bargaining-authorization
cards from Ansley in the mail on November 5. On Mon-
day, November 7, Morrison and Fagery each signed a
is I make no finding as to whether Cutler's remarks that the business
could be operated without employees constituted separate violations of
Section 8(a)(1) Such conduct was not alleged as violations in the com-
plaint, and the record does not show that Respondent felt called upon to
and did fully litigate violations based on such conduct.
" Morrison testified on direct examination that when the picketing
began, "pretty near everybody was ready to sign with the Union Then
after about a week or so they weren't." On cross-examination, he testified
as follows:
Q. Mr. Morrison, you mentioned a discussion of the Union with
other employees during the time the picket line was present and you
said the employees were ready to sign then and then a week later they
weren't ready to sign.
In that period of time was there any discussion of an election before
the National Labor Relations Board?
A. At that time there hadn't been We were all ready to sign the
cards and one gentleman had called the Union , and when I came back
to work that afternoon he said , "Mr. Wilner said anyone that goes
union will get fired," and right after that statement was circulated
around to the men their minds were changed.
Q. Who told you this?
A. I can't remember his name now - Rossum
Q. Did you yourself hear anyone say this other than Mr. Rossum9
The record contains somewhat conflicting evidence re-
garding the quality of Morrison's work performance be-
fore October. At one point, Cutler testified that there
were times when his performance was "almost satisfacto-
ry." At another point, he testified that his performance
had been "satisfactory" at times but was variable. Wilner
testified that Morrison "had been doing quite well," and
that there was a time when he "was doing a good job."
From September 23 to October 18, the period im-
mediately after new cars arrived, Morrison made no
sales. Wilber testified that he observed a "morose at-
titude" on the part of Morrison, noticed his "deteriora-
tion," called it to Cutler's attention, suggested that he do
something about it, and personally urged Morrison on
several occasions to be enthusiastic.19
It is uncontradicted that Cutler talked to Morrison
about his performance, but the date of the discussion is in
dispute. Cutler testified that he was not certain of the
date; that it "was closer to the middle of October"; that
it was at least 2 weeks before Morrison's discharge on
November 8; that he could not recall whether it was be-
fore or after October 18; that it could have been before or
after October 21; that it was 2 or 3 weeks before
November 8; that it could have been as late as October
24 or 25; and that it was after Morrison had made one or
two sales in October. The record establishes that Mor-
rison was involved in car sales on October 18, 21, 22, 23,
and 31.20 Morrison testified that Cutler talked to him
"about a week or so before" he was discharged on
November 8, and that be did not think it could have been
as much as 2 weeks before that event.
During the conversation, Cutler asked Morrison "what
was wrong," why his sales "had been down" during the
A No, I did not
The record contains conflicting evidence as to whether the intercom
system in Respondent's premises was working on November 7 and could
have been used by Cutler to monitor Morrison's conversations.
'' During the period of Morrison's employment, Cutler admittedly
tolerated a less-than-adequate performance by other employees. He
testified that Savage was 67 years old and would retire "very soon", that
employee Lemos had a "ten-year clientele among Rambler owners," but
surgery had admittedly "impaired his performance"; and that employee
Short "did very, very poorly " On October 21, Respondent as an experi-
ment hired Robert Siebenthal as a "closer", i e., an employee who at-
tempts to complete a sale or increase the amount of a sale when the
salesman has not succeeded in these respects. According to Cutler, he
"thought that some of the customers who were getting away would not get
away if [he] had a closer on the premises." The experiment, however,
was not successful and was ended 5 or 6 weeks later.
20 Morrison completed the October 18 sale himself. The October 21
sale was to a customer of employee Lentz, and Morrison completed it in
the latter's absence. He received help from Siebenthal in closing the sale
on October 22, and help from Cutler in completing the October 23 sale.
The October 31 sale involved an old customer of Cutler who did much of
the work and then turned the customer over to Morrison.
EAST BAY RAMBLER, INC.
preceding month, which was admittedly Morrison's
poorest month. According to Cutler, Morrison appeared
depressed and stated that he had had some problems with
his ex-wife relating to certain property. According to
Morrison's direct testimony, he replied that he "had no
problems," that "nothing was wrong," that he "just
hadn't been able to run into any buyer." On cross-ex-
amination, he testified that "floor traffic" (presumably
passersby inquiring about cars) had been very bad during
the preceding month. At one point in his cross-examina-
tion, he admitted that he had had problems with his ex-
wife in October, and that he had told Cutler that he "had
some problems." At another point, he denied telling
Cutler that he had difficulty concentrating on his work
because of marital difficulties and testified, "[Cutler]
asked me if I had any problems and I said no."
The upshot of the conversation was that Cutler and
Morrison agreed to work closely together for a 30-day
period in an attempt to improve the latter's performance.
Morrison testified as follows:
A. . . . [Cutler] suggested that in the future, for
the next month at least, any time I had a customer to
bring it to him to discuss it, to discuss every one of
them with him, in order to try to help increase my
sales.
Q. Do you recall if Mr. Cutler said anything
further about this month's period in which you would
work together?
A. Well, he wanted me to bring every customer to
him and he wanted me to discuss every one with him.
When subsequently called as a witness, Cutler testified
on direct examination that they agreed "to try to work
closer together and see if [they] couldn't change this
course that [Morrison] was taking." On cross-examina-
tion, he testified as follows:
Q, And the basic item of this talk was that the two
of you were going to work together for thirty days to
see if you could improve the situation, is that cor-
rect?
A. To attempt to, yes.
c. Morrison's discharge
Cutler testified that he tried to work more closely with
Morrison but without success. His testimony was as fol-
lows:
A. I tried to work closer with Cliff. Possibly it
was an inadequacy on my part, I don't know, but it
just did not seem to do any good. We counseled on
deals with customers but somehow it just didn't seem
to do any good.
It is undisputed that Morrison made no sales between
October 31 and November 8. Wilner testified that he
seemed to recall a discussion with Cutler on an un-
specified date, during which the latter was disturbed
about Morrison and stated: "We are going to try to get
this thing straightened out and watch him more closely or
we will have no alternative but to let the mango."21
On November 8, Cutler asked Morrison to resign in
lieu of discharge. According to Morrison, Cutler did not
discuss his performance since their last discussion, gave
no reason for requesting the resignation, and merely
stated: "This thing is irritating me and I presume it is
21 Cutler testified that he is paid no salary, that he recieves a percentage
of the gross profit produced by the efforts of his salesmen as well as his
own, and that he is permitted to "draw" against such percentage.
1005
you." When pressed to state whether Cutler had informed
him that he could see no reason to anticipate an improve-
ment in performance, Morrison testified: "I didn't recall
it and I am pretty sure that he didn't." Morrison testified
that he expressed the hope that they could remain friends,
that they shook hands, and that he left. Cutler's version
differs in that he told Morrison that he could neither see
nor anticipate any change in Morrison's performance.
2. Analysis and conclusions
The General Counsel contends that Morrison was
discharged because of his union activities. Recognizing in
his brief (G.C. br. p. 12) that the record does not contain
direct evidence of Respondent's knowledge of such ac-
tivities, the General Counsel nevertheless contends that
such knowledge as well as Respondent's unlawful motive
may be inferred from circumstantial evidence in the
record. Respondent, although not disputing either that
Morrison engaged in union activities or that he was
discharged, denies any relationship between such activi-
ties and the discharge. It asserts that it did not acquire
knowledge of his union activities until after the discharge,
and that the discharge was prompted solely by the fact
that Morrison's poor work performance did not improve
after warning. I agree with the General Counsel.
The Board has long held that employer knowledge of a
discharged employee's union activities may properly be
inferred from circumstantial evidence. Don Swart
Trucking Co., Inc., 154 NLRB 1345, footnote 2; Malone
Knitting Company, 152 NLRB 643, 644, footnote 2,
enfd. 358 F.2d 880 (C.A. 1); Quest-Shon Mark Brassiere
Co., Inc., 80 NLRB 1149, 1150, enfd. 185 F.2d 285
(C.A. 2), cert. denied 342 U.S. 812. Here a number of
factors make it reasonable to infer Respondent's
knowledge of Morrison's union activity as well as its un-
lawful motivation. As already found, Respondent unlaw-
tully interrogated its salesmen, and unlawfully held out to
them the possibility of pension benefits. In August and
September, Sales Manager Cutler told Morrison, while
discussing the salesmen's complaints about night work,
that Respondent could operate the business without
salesmen.22 Since Respondent's contract with the Union
had limited night work and President Wilner felt strongly
that night work was necessary, Cutler's remarks indicate
that Respondent was prepared to consider taking drastic
action to avoid the consequences of unionization. Indeed,
according to Morrison, employee Rossum told him during
the picketing in July that President Wilner had threatened
to fire "anyone that goes union." Although such
testimony constituted hearsay, it was brought out during
cross-examination by Respondent and no motion to strike
such testimony was made. In the circumstances, it has
corroborative value. Spiller v. Atchison, Topeka & Santa
Fe Railway Company, 253 U.S. 117; Gibson v. Elgin,
Joliet & Eastern Railway Company, 246 F.2d 834 (.A.
9); Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 690
(C.A. 9), cert. denied 338 U.S. 860.
Other significant circumstances are the timing of the
discharge (which occurred on the day after Morrison ob-
tained the signatures of other salesmen on union bargain-
ing-authorization cards and before the expiration of his
probationary period), the fact that Morrison openly ob-
tained such signatures on the sales floor, and the small
22 The fact that no unfair labor practice is found by reason of such con-
duct does not negate the evidentiary value of such conduct.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
size of Respondent 's sales force . In the Don Swart case,
supra, one of the considerations relied on by the Board
for inferring employer knowledge of the dischargee's
union activity was the smallness of the plant, which had
about 18 drivers . In the instant case, there were only
eight salesmen in Respondent 's employ at the time Mor-
rison was discharged . 23 Absent a convincing explanation
for the extraordinary timing of Morrison 's discharge, it is
reasonable to conclude that Respondent acquired
knowledge of Morrison 's union activity and discharged
him therefore . Respondent 's explanation is that there was
no improvement in Morrison 's performance and none
was expected . In my opinion , Respondent's explanation
is not convincing . So far as the record shows, Cutler said
nothing to Morrison about a possible discharge in Oc-
tober, when they discussed the latter 's poor performance.
They merely discussed the reasons therefor, and Cutler
instructed Morrison to bring all his customers to him for
the next 30 days, so that they could work closely together
in an effort to improve his performance .24 Thus, Respond-
ent discharged Morrison without express prior warning.
Even if their discussion were to be treated as an implied
warning of possible discharge after a 30-day period of
probation , the fact remains that Morrison was abruptly
discharged well before the end of such 30-day period.
Morrison testified that Cutler spoke to him about a week
before the discharge on November 8. Cutler's testimony
indicates that their conversation took place on or about
October 25. It is unnecessary to resolve the conflict. If
Morrison is right about the date , he was discharged
without adequate time to prove himself. On the other
hand, whichever date is the correct one, it seems strange
that Respondent should have attributed Morrison's lack
of success solely to his own inadequacy without waiting
for the expiration of the 30-day period . For, like Mor-
rison , employees Savage, Lemos, and Short were per-
forming inadequately during the period in question; Cu-
tler admitted that business was bad ; and he hired
Siebenthal as a closer because his salesmen were unable
to complete sales. Indeed , a discharge for inadequate per-
formance becomes even more difficult to understand
when it is recalled that Cutler was admittedly equally un-
successful in making sales to the customers brought to
him by Morrison.
Because of the above considerations , I do not credit
Cutler's testimony that he did not acquire knowledge of
Morrison 's union activity until about November 15; i.e.,
a week after the discharge , when he was informed by em-
ployee Savage that the salesmen had all signed union
cards and that Morrison had participated in obtaining
signatures . Respondent argues that this testimony is con-
firmed by Wilner 's letter of November 16 (i.e ., the day
after Cutler received such information) advising the
Board that he had conclusive proof that , as of November
7, a union representative , 'whom he could name, had sol-
icited employee signatures on authorization cards.25
Respondent points out that Wilner was then making
strenuous efforts to obtain an election and to persuade the
21 I find it unnecessary to resolve the conflict as to whether the inter-
com system worked well enough on November 7 to permit monitoring of
Mornson's conversations with the salesmen. Resolution of that conflict
would result in a determination , not as to whether Respondent obtained
knowledge of Morrison's union activity by means of the intercom system,
but only as to whether it could have obtained such knowledge by that
means. Such a determination would not affect any of my other conclu-
sions.
Board to reverse the dismissal of his election petition of
July 28. Had Cutler given Wilner the information regard-
ing Morrison's solicitation earlier than November 16,
Respondent argues, Wilner obviously would have written
his letter to the Board before that date. Respondent's con-
clusion, however, is not the only interpretation of the
facts. An equally plausible inference is that Cutler
learned of Morrison's union activity on November 7 and
discharged him therefor on the following day; and that
Wilner deliberately delayed writing his letter to the Board
until a week later. I so find.
Upon the entire record, I find that Respondent had
knowledge of Morrison's union activity at the time it
discharged him on November 8, that it discharged Mor-
rison because of such activity, and that the discharge ac-
cordingly constituted discrimination in violation of Sec-
tion 8(a)(3) and (1) of the Act.
D. The Refusal to Bargain
1. The composition of the unit
The complaint alleged that the following employees of
Respondent constitute an appropriate unit for purposes
of collective bargaining under Section 9(b) of the Act:
All automobile salesmen employed at
[Respondent's] San Leandro, California, facility, ex-
cluding all other employees, guards and supervisors
as defined in the Act.
At the hearing, the parties stipulated, and I find, that the
said unit is appropriate.
The parties further stipulated, and I find, that the fol-
lowing employees in the above unit were on Respond-
ent's payroll during the period from November 29
through December 3: Vern Savage, Robert Siebenthal,
Jay Hall, Walter Lentz, Eugene Lemos, Edward
Leonard, and Vince Short. In addition, Respondent ad-
mitted that, if Morrison were discharged in violation of
Section 8(a)(3), he was also includable in the unit. In view
of my finding that his discharge was unlawful, I find that
Morrison was so includable.
2. The Union's majority
The record establishes that union bargaining-authoriza-
tion cards were signed by Morrison, Short, Savage, and
Lemos on November 7, by Lentz on November 8, and
by Hall on November 30, 1966. Accordingly, I find that
five of the eight employees in the unit had designated the
Union as their bargaining representative prior to
November 29, when the Union first requested recogni-
tion, that six employees had so designated the Union by
December 2, when the Union repeated its request, and
that the Union thus represented a majority of Respond-
ent's employees in the unit in question on the said dates.
I further find that, even if Morrison were not included in
the unit, the Union nevertheless represented a majority
of the employees on such dates, since four of the remain-
24 I credit Morrison's testimony regarding such instructions. Cutler did
not expressly contradict that testimony, and his own testimony was not in-
consistent therewith
25 Contrary to the claim in Resp. br p 35 the letter did not say that
Wilner "now" had such proof It merely stated that "I have" such proof.
EAST BAY RAMBLER, INC.
ing seven employees had so designated the Union prior to
November 29, and five had so designated the Union by
December 2.
3. The bargaining requests and refusals
a. The evidence
On November 29, Chester Ansley, secretary- treasurer
of the Union, went to Respondent 's premises and met
with Wilner. Ansley informed Wilner that the Union
represented a majority of his salesmen and requested
recognition and bargaining . According to Ansley, during
the course of the ensuing conversation , Wilner variously
stated that he was not sure that the cards were signed,
that he felt that they were signed under a false un-
derstanding or promises , that they were signed under
coercion, that he did not know under what conditions the
cards were signed , and that some of the signers were
under the impression that the cards constituted a petition
for an election. Ansley testified that he denied the ex-
istence of that impression , that he did not offer to show
the cards to Wilner but expressed a willingness to have a
neutral person check them, and that Wilner refused on the
ground that the cards had been signed under false pre-
tenses. Finally, Ansley tesfied that during their discus-
sion , Wilner asserted that he was paying " almost" union
wages ; that Ansley then asked why he did not sign a
union contract; and that Wilner replied, "Simply because
I don 't want any God-damn union telling me how to run
my business."
Wilner's version is that Ansley stated that he had cards
signed by the salesmen and thus represented them; that
Wilner replied that he did not believe Ansley "had" a
majority of his salesmen ; that, if Ansley had some cards,
Wilner "did not know under what terms or conditions he
may have obtained those cards"; and that, "with the
background and the inconsistencies of these many
months and years of union activity," he did not believe
that he could lawfully enter into an agreement with the
Union. Referring to his state of mind at the time of his
conversation with Ansley, Wilner testified that he
doubted whether Ansley even had cards "because over
a period of time with the Union there had been some in-
consistencies between demanding recognition , relinquish-
ing, recognition , voting"; and that it was his opinion that
it would have been unlawful for him to negotiate a con-
tract with a union that did not represent his salesmen.26
However, Wilner denied telling Ansley that he did not
want "any damn union" telling him how to run his busi-
ness. In addition , he testified that there was an informal
general discussion of contract proposals made by Ansley,
including a request that Wilner keep his establishment
closed at night , and that Wilner expressed opposition to
such request.
By letter dated December 2, Ansley again informed
Wilner that the Union represented a majority of his
salesmen , demanded recognition , offered a card check by
a neutral person if he doubted the Union's majority, and
proposed that they meet and began negotiations on
December 7. Wilner could not attend the meeting
because of a conflicting engagement , Ansley's office was
so advised, and no other meeting was scheduled.
1007
b. Analysis and conclusions
There is no dispute regarding the composition or
propriety of the unit , the Union ' s majority , the Union's
demands for recognition , and Respondent's refusals on
November 29 and December 2. The critical question is
whether or not the Respondent had a good-faith doubt re-
garding the Union 's majority when it refused to recognize
and bargain with the Union . For under familiar principles,
if it had no such doubt, its refusal was unlawful . Joy Silk
Mills, Inc. v. N.L.R.B., 185 F .2d 732 (C.A.D.C.), cert.
denied 341 U.S. 914; Aaron Brothers Company of
California, 158 NLRB 1077. The burden of establishing
the absence of such a doubt, as Respondent correctly
contends, is upon the General Counsel.
Whether such doubt is absent depends on the circum-
stances of each case, and no two cases are identical.
However , certain principles may be distilled from the
facts present , and conclusions reached , in the numerous
cases involving this question . Where an employer, based
on information suggesting that a union does not have a
majority , expresses doubt regarding a claimed majority,
and there is no reason to question his good faith, the
required burden of proof has not been met . Poray, Inc.,
160 NLRB 697; Phil-Modes, Inc., 159 NLRB 944;
Paramount Paper Products Co., 154 NLRB 1064, 1068.
Similarly, the burden is not sustained where the employer
has no information regarding a union 's majority other
than the union 's claim , he expresses a distrust of cards as
a means of establishing a majority , and there is nothing to
show bad faith. Hercules Packing Corporation, 163
NLRB 264; H & W Construction Co., Inc., 161 NLRB
852; Aaron Brothers Company of California , supra. On
the other hand , where an employer receives and believes
information showing that the union has a majority, and
there is no reason for him to believe that the majority was
obtained by coercion or other improper methods, his
claim of doubt may be regarded as advanced in bad faith.
Retail Clerks Union , Local No. 1179 •[John P. Serpa,
Inc.] v. N.L.R.B., 376 F.2d 186 (C.A. 9); Johnnie's
Poultry Co., 146 NLRB 770; H & W Construction Co.,
Inc., supra; Snow & Sons, 134 NLRB 709 , enfd. 308
F.2d 687 (C.A. 9).27
In my judgemnt, the General Counsel has sustained his
burden in the instant case.
(1) Respondent 's information and belief as to the
Union 's majority
Wilner and Ansley gave slightly conflicting versions as
to exactly what Wilner said regarding the claim of majori-
ty on November 29. However , it is unnecessary to
resolve the conflict , since the absence of a good-faith
doubt as to such majority is shown irrespective of which
version is accepted . According to Wilner , he told Ansley
that he did not believe that the Union represented a
majority, and that , if Ansley had some authorization
cards, Wilner questioned the circumstances under which
the cards were obtained. But Wilner's disbelief as to the
Union 's majority is refuted by three incidents to which I
have already referred . In the first , which occurred on or
about November 15, Cutler was told by an unnamed em-
26 Respondent incorrectly asserts in its brief (pp. 11-12) that Wilner Construction Co, Inc ., 165 NLRB 1062 For a case in which the em-
made these statements to Ansley ployer did not believe such information, see Gruber's Food Center, Inc,
17 The Snow decision was recently cited with approval in Struksnes 159 NLRB 629.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee that "the men had signed cards for the union to
represent them." Cutler immediately requested confirma-
tion from employee Savage, who informed him that
"everybody had signed" for "Union Representation" and
Cutler so informed Wilner. During the second incident,
which took place in late November or early December
1966, employee Short, in response to interrogation by
Wilner, told him that "everybody" had signed. The
third incident involved Wilner's statements during a
meeting of salesmen held in the first 2 weeks of
December 1966. Employee Lemos' testimony as to what
Wilner said at the meeting is uncontradicted, and I credit
it. On direct examination, he testified as follows:
A. I believe he started the meeting out by stating
that we had all signed cards for Union representation
and that it was our right to request Union representa-
tion.
Q. Was anything further said about the fact that
some employees may have signed cards?
A. I believe he knew that everybody had signed
the cards but nothing to any great extent was said
about it.
On cross-examination, he gave the following testimony:
Q. Now, at this meeting what did Mr. Wilner say
to you about the cards? Would you tell me again?
A. He said that he understood that we had all
signed cards wanting the Union's representation and
it was our right, we had a right to do so. He was very
calm about it. I don't recall too much of anything else
being said about it.
I find that these three incidents establish that, despite
Wilner's expressed doubt on November 29 that cards had
been signed by a majority or indeed by any of his em-
ployees, he had information from three of the eight em-
ployees in the unit that bargaining cards had been signed
by all the salesmen; and what is even more important,
that Wilner believed such information. Although the
evidence of his belief, i.e., Wilner's statements during the
third incident, involved conduct which apparently post-
dated the Union's requests for recognition, such evidence
is relevant and material in ascertaining Respondent's
good-or bad-faith doubt on the dates of these requests.
Converters Gravure Service, Inc., 164 NLRB 397. I
further find that there is- no basis for Wilner's alleged
doubts regarding the circumstances under which the card
signatures were obtained. Such an assertion of doubt, as
Respondent recognizes in its brief (p. 16), must have a
reasonable basis and cannot rest on mere speculation.28
Wilner gave Ansley no reason for questioning the circum-
stances under which the card signatures were obtained,
the record discloses no such reason, and Respondent has
suggested none. On the contrary, Wilner's version of his
statements to Ansley on November 29 indicates nothing
more than speculation.
Turning to Ansley's version of what Wilner said con-
cerning the Union's majority, it differs materially from
Wilner's version in only one respect - that one of the
reasons given by Wilner for refusing to bargain was that
"some of the signers were under the impression that this
was a petition for an election."29 If Wilner had a bona fide
belief that the cards signed by the salesmen were solely
P8 N.L R.B. v. Superior Sales, Inc., 366 F.2d 229, 237 (C.A.8);
N.L.R.B. v. C. J. Glasgow Co., 356 F.2d 476, 479 (C.A.7); N.L.R.B. v.
The Howe Scale Co., 311 F.2d 502, 504 (C.A 7); Hammond & Irving,
Inc., 14 NLRB 1071, 1073; G.P.D., Inc., 163 NLRB 830; Poray, Inc.,
for the purpose of obtaining an election and did not
authorize the Union to bargain for them, he would have
been justified in rejecting the Union's request for bargain-
ing. I find, however, that Wilner did not have such a be-
lief. Wilner's version of his conversation with Ansley
makes no reference to the purpose of the cards, nor does
Respondent argue in its brief that Wilner declined recog-
nition because of a belief that the cards authorized only a
vote. This suggests that Wilner did not take Savage's
reference to a vote very seriously. Moreover, Wilner's
letter of November 16 to the Board, i.e., the day after
Cutler's conversation with Savage, stated that he had
conclusive proof that a union representative had give his
salesmen signature cards "for their authorization to have
the union represent them." That letter shows Wilner re-
garded the cards as authorizing the Union to represent
the salesmen for purposes of collective bargaining.
I accordingly find that Wilner did not have a bona fide
belief that the card signatures were improperly obtained.
And in view of his information and belief that all the
salesmen had signed bargaining cards, I find that he did
not have a good-faith doubt regarding the Union's status
as majority representative of his salesmen on and after
November 29 and, therefore, that his refusal to bargain
and insistence upon an election on and after that date con-
stituted a delaying tactic evidencing a rejection of the col-
lective-bargaining principle.
There is no merit to Respondent's contentions that the
Board's initial decision in the Serpa case, 155 NLRB 99,
requires a contrary conclusion, and that the rationale of
the Ninth Circuit, in reversing that initial decision, is in-
applicable here. In its initial Serpa decision, the Board
found that the information received by the employer was
insufficient to apprise him of the union's majority. In
reversing the Board's refusal to find an 8(a)(5) violation,
the court predicated its decision on the conclusions that
the information showed such a majority and that the em-
ployer believed the information. Thereafter, the Board
reversed its initial decision and adopted the court's view.
(166 NLRB 336.) Thus, contrary to Respondent's conten-
tion, the Serpa decisions support a finding that Respond-
ent did not have a good-faith doubt as to the Union's
majority. Such a finding is also supported by the Board's
decision in Johnnie's Poultry, supra. There the Board
found that the employer did not have a good-faith doubt
regarding the Union's majority, since he had learned of
such majority through interrogation of its employees and
through a petition which they had signed, and had no
basis for doubting the majority. Although enforcement
was refused in that case,30 the court did not reject the
principle that an employer's asserted doubt is not bona
fide where he learns of and has no reason to doubt the
Union's majority. It merely disagreed with the Board's
evaluation of the evidence and held that the information
obtained by the employer was insufficient to put him on
notice that a clear majority supported the Union.
(2) Respondent's defenses
In view of my findings as to Wilner's information and
belief regarding the Union's majority, I reject Respond-
160 NLRB 697.
Y' In this connection , I note Cutler 's testimony that he was told by em-
ployee Savage that the cards signed by the salesrhen were "for a vote."
30 344 F 2d 617 (C.A. 8).
EAST BAY RAMBLER, INC. 1009
ent's various defenses purporting to show that Wilner's
expressed doubt regarding the Union's majority was
justified.
(a) Respondent points out that Ansley failed to offer
the authorization cards to Wilner. However, there is
nothing to show that such failure created any doubt on the
part of Wilner as to the accuracy of the information which
he had theretofore obtained. Moreover, since, as Wilner
testified, he told Ansley that he questioned the circum-
stances under which card signatures may have been ob-
tained and refused to agree to Ansley's request for a card
check by a neutral person,31 it would have been a futile
and hence unnecessary gesture for Ansley to offer the
cards to Wilner as proof. J. H. Rutter-Rex Manufacturing
Company, Inc., 164 NLRB 5.
(b) Respondent also contends that Wilner's doubt was
justified by such prior events as the rejection of the Union
by Respondent's salesmen at elections in 1962 and in
February 1965, and the Union's disclaimers of recogni-
tion in August and September 1966 in response to
Respondent's petition for an election. Whatever proba-
tive value prior election losses and union disclaimers
might have in other circumstances, they do not justify a
doubt as to majority where, as here, the evidence shows
that the Employer, more than 18 months after the last
election, obtains and believes information showing that
the Union has acquired majority status. This evidence is
sufficient to distinguish the instant case from those relied
upon by Respondent.32
(c) Respondent further contends in its brief (pp. 8,
19-20) that the "Board was wrong" in dismissing
Respondent's July 1966 petition for election; that An-
sley's testimony in the instant proceeding proves that the
Union was in fact seeking to unionize Respondent's
salesmen and, therefore, that it was seeking recognition
despite its disclaimers;33 that the disclaimers thus con-
stituted a fraud upon the Board as well as upon Respond-
ent; and that, where such fraud occurs, an employer can
hardly fail to have a good-faith doubt as to the Union's
majority status.
Respondent concedes that the Trial Examiner has no
authority to reverse the Board's dismissal of its petition
and to order an election. It contends, however, that, by
finding that Respondent did not unlawfully refuse to bar-
gain, the Trail Examiner can and should prevent the
Union from reaping the fruits of its fraud and protect
Respondent from being compelled to bargain without the
election to which it has been and is entitled.
These contentions are without merit. Unlike a claim
that fraudulent preelection statements made by a union
invalidate a Board election and certification of that
union,34 Respondent's contention that the Union was
seeking recognition despite its disclaimers raises a col-
lateral issue which does not go to the heart of the 8(a)(5)
allegations of the complaint herein . It is therefore argua-
ble that that issue should be presented to the Board and
that I do not have authority to permit its relitigation in
this proceeding . On the other hand , it may be argued that,
if Respondent has newly discovered or previously
unavailable evidence of fraud which could materially af-
fect the Board 's determination that the Union was not
seeking recognition at the time of its disclaimers, that
issue may be relitigated before me, and I should consider
the matter of fraud in recommending a remedy, because
it would not effectuate the purposes of the Act to require
recognition of a union which has committed a fraud.35
I need not resolve this problem inasmuch as the record
contains no evidence which would warrant relitigation of
the disclaimer issue. In affirming the Regional Director's
dismissal of Respondent ' s petition for an election, the
Board considered the Union 's continued attempts to ob-
tain membership or authorization cards from Respond-
ent's salesmen , but nevertheless concluded that there
were insufficient facts to support a finding that the Union
was seeking "immediate recognition." In so concluding,
the Board cited Martino 's Complete Home Furnishings,
145 NLRB 604, in which the Board dismissed the em-
ployer's petition for an election , holding that since the
union was not claiming immediate recognition , there was
presented no currently existing question concerning
representation . In other words, the Board held that mere
attempts by the Union to organize Respondent's
salesmen did not constitute a request for immediate
recognition entitling Respondent to an election . Contrary
to Respondent's claim , Ansley's testimony fails to
establish that the Union was seeking recognition, or even
attempting to unionize the salesmen , at the time of the
disclaimers . Accordingly, I find that such testimony,
although newly acquired by Respondent , sheds no new
light on the Union 's desires concerning recognition at the
time of its disclaimers. But assuming arguendo that the
testimony proves that the Union was attempting to
unionize the salesmen , it would be cumulative since the
Board has already considered evidence of such attempts.
An employer is not entitled to a second chance to litigate
in an unfair labor practice proceeding , a determination
previously made in a representation proceeding, where
the new evidence relied on would not materially affect
that determination . Cf. Belber Manufacturing Corp., 146
NLRB 358, 361-362; accord, N.L.R.B . v. Sun Drug Co.,
Inc., 359 F . 2d 408 (C.A. 3).
(d) Respondent also argues that unlike the employer
in Serpa, it sought to reopen the dismissal of its July 1966
election petition and filed a new petition for election in
December of that year . According to Respondent, this
was all it could be asked to do. But the filing of an election
31 The principle, asserted by Respondent , that an employer is not
required to agree to a neutral card check has no application here, in view
of my findings regarding Respondent's information and belief as to the
Union's majority
32 Hammond & Irving, Inc, 154 NLRB 1071; Superex Drugs, Inc.,
150 NLRB 972; Nalco Chemical Co., 163 NLRB 68; N L.R.B v
Johnnie's Poultry Co., supra, Peoples Service Drug Stores v. N.4.R.B.,
375 F 2d 551 (C.A 6); Hercules Packing Corporation, 163 NLRB
264; Strydel Incorporated, 156 NLRB 1185, Converters Gravure Ser-
vice, Inc., 164 NLRB 397; and N.L.R.B. v. GreatAtlantic & Pacific Tea
Co., Inc, 346 F.2d 936 (C.A. 5)
33 Ansley testified as follows. "The picketing ceased on August 4 We
had withdrawn all efforts or intent to unionize this dealership and had dis-
claimed to the Employer any efforts to organize these members and during
that time we received several calls asking us to.take them into our Union."
In its brief (p. 8), Respondent asserts that "any attempt to unionize
Respondent's dealership could not have been withdrawn unless it had ex-
isted in the first place, and it is perfectly apparent from Ansley's testimony
that the purpose of the picketing had been to unionize Respondent's
dealership" despite the Union's disclaimers.
34 See, for example , United States Rubber Co v. N.L.R.B., 373 F.2d
602 (C.A. 5).
35 A refusal to order recognition, it may be argued , would not deprive
the employees of the right to representation by their chosen representa-
tive, since it cannot be assumed that they would wish to retain a represent-
ative guilty of fraud.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition does not by itself establish an employer's good
faith. As pointed out in Johnnie's Poultry Co., supra, 146
NLRB at p. 774, the employer's "prompt action in filing
the representation petition [does not] necessarily demon-
strate a good-faith doubt - it could as well have been to
gain time in which to dissuade employees from the choice
they had made." And in Serpa, supra, the court pointed
out that the Act is designed to prevent "delaying tactics
... used with the hope that the Union `would just go
away."' I find that Respondent's election petitions con-
stituted such delaying tactics.
(3) Respondent's other conduct
Respondent's information and belief that the Union
represented an uncoerced majority of the salesmen are
sufficient to establish that it did not have a good-faith
doubt as to such majority. However, if further evidence
were required, it is present in Respondent's other con-
duct; i.e., the unlawful interrogation of and promises of
possible benefit to its salesmen , the unlawful discharge of
Morrison , and Wilner's statement to Ansley that he did
not want any union telling him how to run his business.36
Respondent contends that even if such conduct is held
unlawful, it was not indicative of a desire to destroy the
Union's majority or of a rejection of the collective-bar-
gaining principle. It is unnecessary to decide whether
such conduct, standing alone, would be sufficient to
establish the absence of a good-faith doubt regarding the
Union's majority status. For if nothing else, it constitutes
additional evidence that Respondent rejected the princi-
ple of collective bargaining and thus reinforces my con-
clusion that it did not have a good-faith doubt regarding
the Union's representative status.37
In sum, I find that Respondent did not have a good-
faith doubt as to the Union's majority status in an ap-
propriate unit on and after November 29, and that its
refusal to bargain with the Union and insistence upon an
election on and after that date violated Section 8(a)(5) and
(1) of the Act.
been paid by Respondent from the date of his discharge
to the date on which Respondent offers reinstatement as
aforesaid, less his net earnings, if any, during the said
period. The loss of earnings under the order recom-
mended shall be computed in the manner set forth in F.
W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By unlawfully interrogating its employees concern-
ing union activities, and by promising possible benefits to
employees to induce rejection of the Union, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By discharging Clifton Morrison because of his
union activity, Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of
the Act.
3. All automobile salesmen employed at Respondent's
San Leandro, California, facility, excluding all other em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Sections 8(a)(5) and 9
of the Act.
4. On November 29, 1966, and at all material times
thereafter, the Union represented a majority, and has
been the exclusive bargaining representative, of all the
employees in the aforesaid appropriate unit for purposes
of collective bargaining within the meaning of Sections
8(a)(5) and 9 of the Act; and Respondent on that date
was, and has since been, obligated to recognize and bar-
gain with the Union as such.
5. By refusing, upon request, to recognize or bargain
with the Union for the employees in the above-mentioned
appropriate unit on and after November 29, 1966,
Respondent engaged in unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
II. THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which I find necessary to remedy and remove the effects
of the unfair labor practices and to effectuate the policies
of the Act.
Affirmatively, I shall recommend that, upon request,
Respondent bargain collectively with the Union; and that
it offer Clifton Morrison immediate and full reinstatement
to the position which he held at the time of his discharge
or to a substantially equivalent position, without preju-
dice to his seniority and other ritghts and pivileges,
dismissing if necessary an employee hired subsequent to
the date of such discharge. I shall further recommend that
Respondent make Morrison whole for any loss of
earnings suffered because of his discharge by paying to
him a sum of money equal to that which he would have
36 As already noted, one of the Union's objectives was elimination of
night work by Respondent's salesmen and Wilner was concerned about
the competitive disadvantage that would result therefrom. Because of that
concern, as well as the demeanor of Wilner and Ansley , I credit the
latter's testimony that Wilner made this statement and reject Wilner's
denial.
It is recommended that East Bay Rambler, Inc., its of-
ficers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning
their union activities, and promising benefits to em-
ployees in order to induce rejection of a union or
unionization.
(b) Discouraging membership in any labor organiza-
tion by discriminating against any of its employees in re-
gard to their hire, tenure, or any term or condition of em-
ployment.
(c) Refusing, upon request, to recognize and bargain
with Automobile Salesmen's Union, Local 1095, Retail
Clerks International Association, AFL-CIO, as the ex-
clusive bargaining representative of all the employees in
the unit herein found to be appropriate.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of any of the
rights guaranteed in Section 7 of the Act.
37 It is of no significance that some of the unlawful conduct preceded
the Union 's demand for bargaining N.L.R B v. Boot-Ster Mfg. Co , Inc.,
361 F.2d 325, 326 (C.A. 6).
EAST BAY RAMBLER, INC..
2. Take the following affirmative action:
(a) Upon request, bargain collectively with the said
Local 1095 as the exclusive representative of all em-
ployees in the said appropriate unit with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a written, signed
agreement.
(b) Offer to Clifton Morrison immediate and full rein-
statement to his former or a substantially equivalent posi-
tion, and make him whole for any loss of earnings he may
have suffered by reason of Respondent's discrimination
against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Notify the above-named employee, if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) 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
and the right of reinstatement under the terms of this
Recommended Order.
(e) Post at its place of business in San Leandro,
California, copies of the attached notice marked "Ap-
pendix." 38 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by the Respondent's -authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60, consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.39
38 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
39 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 20, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
1011
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we -hereby notify our em-
ployees that:
WE WILL NOT unlawfully discriminate against Clif-
ton Morrison or any other employee.
WE WILL offer to Clifton Morrison immediate and
full reinstatement to his old job and pay him for all
back earnings lost as a result of the discrimination
against him.
WE WILL NOT interrogate our employees concern-
ing their union activities, promise them benefits to in-
duce rejection of unionization, or in any other
manner interfere with them in the exercise of their
guaranteed statutory rights.
WE WILL, upon request, bargain collectively with
Automobile Salesmen's Union, Local 1095, Retail
Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of all employees
in the unit described below, with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment; and, if an understand-
ing is reached, embody such understanding in a writ-
ten, signed agreement. The bargaining unit is:
All automobile salesmen employed at our San
Leandro, California, facility, excluding all other
employees, guards and supervisors as defined in
the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of said
Local 1095, or any other labor organization.
EAST BAY RAMBLER, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, San Francisco,
California 94102, Telephone 556-3197.
336-845 0 - 70 - 65