Gateway Chevrolet Sales, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1966

156 N.L.R.B. 856 (N.L.R.B. 1966)

"856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in, or create the impression of, surveillance of employee
union activities.
WE WILL NOT permit, or participate in, the distribution to employees of
Vote No cards or other antiunion insignia.
WE WILL NOT enforce a rule against use of working time for union solicita-
tion while permitting the use of such time for antiunion solicitation .
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join, or
assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization , to bargain col-
lectively, through representative of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
All our employees are free to become or remain members of any labor organiza-
tion or to refrain from becoming or remaining members thereof.
MURRAY OHIO MANUFACTURING COMPANY,
Employer.
Dated--------------- ---- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone
No. 534-3161.
Gateway Chevrolet Sales, Inc. and Automobile Salesmen & Misc.
Workers Union Local No. 192 .1 Case No. 13-CA-6644. Janu-
ary 17, 1966
DECISION AND ORDER
On June 11, 1965, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. On August 26, 1965, the parties filed with the National Labor
Relations Board a stipulation of facts pertaining to the status of the
Charging Party as a labor organization. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision, and also filed
a motion to dismiss the complaint on the ground of mottness, attach-
ing certain affidavits. The General Counsel filed an answer to the
motion, also attaching an affidavit, and a brief in support of the Trial
Examiner's Decision.
i As designated in the charge and thereafter in the formal papers filed In this case.
The caption Is hereby amended to delete "AFL-CIO" from the title of the Charging
Party. The circumstances which make the AFL-CIO affiliation no longer an appropriate
part of the Union's title are set forth In our Decision in Nelson Chevrolet Company, 156
NLRB 829 . References to the Union hereinafter will exclude the AFL-CIO designation.
156 NLRB No. 89.
GATEWAY CHEVROLET SALES, INC. 857
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 Respondent's exceptions, the General Coun-
sel's brief, the stipulation of facts, the motion, answer, and affidavits
attached thereto, and the entire record in this case, and hereby adopts
only the findings, conclusions, and recommendations of the Trial
Examiner specified below.
1. In Nelson Chevrolet Company, 156 NLRB 829, the companion
case to this proceeding, we discuss the status of the Charging Party
as bargaining representative of the employees in that case and the
reasons for our belief that the 8(a) (5) finding and the issuance of a
bargaining order recommended by the Trial Examiner are not justified.
In every relevant respect, this case is on all fours with Nelson. Here,
therefore, for the reasons set forth in Nelson, we hold that the facts
and circumstances developed both at the hearing and before the
Board cast sufficient doubt upon the majority representative status of
the Union as to render unwarranted an 8(a) (5) finding and a bar-
gaining order. The Trial Examiner's conclusions of law are hereby
corrected to reflect our decision.
2. In addition to his finding of an 8 (a) (5) violation, the Trial
Examiner found that the Respondent had engaged in coercive ques-
tioning violative of 8 (a) (1). The evidence confirms the validity of
this finding, and we shall leave it undisturbed.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications: (1) Omit subparagraphs 1(a)
and 2(a) and reletter the remaining subparagraphs consecutively;
(2) Omit the first full indented paragraph from the attached notice;
(3) Omit "AFL-CIO" from the third full indented paragraph of the
attached notice; and dismissed the complaint insofar as it alleged
that the Respondent violated Section 8 (a) (5) of the Act.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer at Chicago, Illinois,
on December 7 through 9, 1964, pursuant to a charge filed August 27 and complaint
issued October 9, 1964. The complaint alleged that Respondent ( herein sometimes
called the Company ) violated Section 8(a)(1) and ( 5) of the Act by engaging in
acts of interference, restraint , and coercion ; and by refusing to recognize and bargain
with the Charging Party (herein sometimes called the Union or Local 192) as the
exclusive representative of its employees in an appropriate bargaining unit. In its
answer Respondent denied the commission of the alleged unfair labor practices.
All parties appeared and were afforded full opportunity to be heard, and to
examine and cross-examine witnesses . Briefs were filed by General Counsel and
Respondent
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record I and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, with its principal office and place of business
in Chicago, Illinois, is engaged in selling and servicing automobiles. During the past
year, a representative period, Respondent received automobiles and automobile parts
valued in excess of $50,000 directly from points outside Illinois. During the same
year Respondent's gross volume of business from sales and servicing of automobiles
exceeded $500,000. I find that at all material times Respondent has been engaged
in and is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, but Respondent denies, that the Charging Party, Local 192,
is a labor organization within the meaning of Section 2(5) of the Act. For reasons
hereafter stated, I find that Local 192, is a labor organization within the meaning of
that Section.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's business structure and sales force
Respondent operates a new-car sales department, a used-car sales department, a
service department, a parts department and a body shop. Walter Heiden is president
of the Company, and John Greene and James Holdener are managers of the new-and
used-car departments. During the period here involved, Respondent employed nine
new-and used-car salesmen; viz, Anderson, Bear, Blake, Corston, Czubek, Kies,
Schubert, Storcz (Szorts), and Walz.
Greene's duties include giving instructions to salesmen and discussing with them
such matters as car availability and new features. Greene appraises used cars for
trade-in purposes and approves salesmen's car deals. Holdener also appraises used
cars and approves deals. Greene and Holdener are salaried. Greene also receives
a yearend bonus based upon a percentage of profits.
Salesmen are paid only on a commission basis.2 Those selling a certain number
of cars per month are entitled to share commissions on house deals"-i.e., sales
by Heiden and the sales managers-as a bonus for high sales. Salesmen selling at
least 10'cars a month are also allowed the use of a new car (demonstrator) without
charge, while others are charged a penalty of $35 a month for the use of such car.
The Company gives its salesmen paid vacations at the rate of $100 per week-the
number of weeks ranging from 1 to 3 a year, depending upon the salesmen's length
of service with the Company.
Company President Heiden testified that when an individual "applies for a sales-
man's job," the Company, checks his background. If hired, he is "given an oppor-
tunity to learn the working conditions." The salesman is given, "in letter form, the
details of what he works under, commission ... bonus plans" and other information.
There is no written agreement; the salesman may quit, and Respondent may termi-
nate him, at any time.
Salesmen work in two shifts (9 a.m. to 3 p.m.; 3 to 9 p.m.), in accordance with
schedules worked out each month by salesmen and management. A salesman may
work outside his allotted shift if salesmen on duty cannot take care of customers on
the floor or if he has to arrange car delivery to a customer outside his own hours.
If he is late for work, the salesman so reports to the manager or office girl. If he
wants a day off he obtains the manager's approval. Respondent has a liberal time-off
policy 3
As noted, Respondent's two sales managers (Greene and Holdener) appraise
customers' used cars. These managers or Company President Heiden must approve
'Transcript corrected by my order dated April 13, 1965
2 Salesmen receive 30 percent of the gross profit new-car sales and 5 percent on used-car
sales, plus at least $5 per insurance contract written. Prior to September 1963 salesmen
received a salary of $50 per week and commissions based on gross profits. The com-
pensation basis was changed at the request of the salesmen
3 Company President Heiden testified that when men are absent, "we just tell them
it is not good business . . . he is working on commission. He Is injuring himself. He
is not injuring the Company."
GATEWAY CHEVROLET SALES, INC. 859
all "deals" of salesmen with customers. If a salesman disagrees with a trade-in
appraisal, the Company allows the salesman to close the deal if he assumes the risk
of loss from underappraisal.4
Respondent withholds income taxes from salesmen's checks and pays their social
security taxes .5
B. The Union organizational drive
Local 192 came into existence in March 1964. Merlin Griffith, self-described as
the "instigator" of the Union, testified that he and other officers were elected on
April 11. The officers included four officials of other unions (International Vehicle
Salesmen Independent Union; Teamsters Scavanger Truck Drivers; and Grave Dig-
gers), several of whom, including Griffith, formerly worked as automobile salesmen.
The Local affiliated itself with the Distillery Rectifying Wine & Allied Workers
International Union of America, AFL-CIO.° The Local's constitution was filed
with the Bureau of Labor Management Reports, Department of Labor on June 22,
1964.
In June 1964 two union representatives distributed leaflets among salesmen in the
showroom. Several salesmen thereafter asked Company President Heiden (who was
on the floor at the time) about his views on unionization. Heiden testified, "my
answer to them was that a little bit of education could be dangerous. If they thought
they wanted unionization, it would be well to pick on a good organization and know
something of its background." 7 According to Heiden, some of the men indicated
that they were not interested in organization, but at least one salesman "thought it
would be a good thing for the industry" in helping to stabilize automobile prices as
well as salesmen's commissions. Heiden testified that "the discussion was finally
dropped and ... I had no more meetings with the men." Unionization continued,
however, to be a topic of discussion among the men. The Union's principal salesman
organizer, Andrew Bear, testified that "everyone felt free to express his views pro
and con."
On August 17,8 salesmen Bear, Czubek, and Storcz conferred with Union Repre-
sentatives Griffith and Cecil on organization of the salesmen .9 Czubek testified that
the men were particularly "ripe to be organized" at that time because sales were "at
a low ebb." According to Czubek, Bear "told us . [before the meeting] this
particular union was organizing salesmen and he figured it was a good one and we
should go down and see what they have to say about it." The union representatives
explained to the three salesmen at the August 17 meeting "what they were doing,"
told them they were trying to organize "various dealerships," and assured them that
they would fight hard for the men. The salesmen pointed out that they were par-
ticularly interested in securing "a minimum commission" for each car sold, and
indicated they already had other benefits the Union was seeking. The union men
explained that they "eventually ... hoped" for citywide or areawide bargaining to
achieve their ultimate objectives.
The three salesmen then returned to the showroom with union membership
application cards to sign up the salesmen. Czubek testified "we were all hepped up
about the union. . . . And that enthusiasm wasn't hard to promote to the other
salesmen and they were only too [eager] to sign the cards."
Six of Respondent's nine salesmen signed union cards that night (August 17) and
two others on August 18. The card states:
I hereby petition for and accept membership in the Automobile Salesmen &
Misc. Workers Union Local No. 192 and authorize said Union to represent me
4Instances in which salesman "buy" their own "deals" appear to be infrequent Sales-
man Walz testified that in his 7 years, he has bought cars "roughly maybe a dozen times "
s The above findings respecting the status of Respondent's salesmen. are based on the
composite (and largely corroborated) testimony of Company President Heiden, and sales-
men Bear and Walz. Although at the outset of his testimony (as a General Counsel
witness), Heiden indicated that when a salesman takes his vacation "he is spending his
own money" or "it is costing him money," it is clear, as Bear and Walz testified and
Respondent in its brief concedes, that the Company has a "graduated" paid vacation
program.
6 Griffith indicated that a liquor salesman working on commission "had somewhat the
same problems as an automobile salesman."
7 Respondent's shop employees are organized by other unions, including the Teamsters.
8 All dates refer to 1964, unless otherwise stated.
9 Findings as to this meeting are based on the mutually corroborative testimony of Re-
spondent's witness Czubek and General Counsel's witness Bear. Griffith's testimony on
this point is consistent with that of these two salesmen.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and act in my behalf to negotiate and conclude any and all agreements as to
wages, hours and other conditions of employment. This authority to act for
me supersedes and cancels any authority heretofore given to any person or
organization to represent me. I agree to be bound by the Constitution -and
By-laws and rules and regulations of the Union and any contracts that may be
in existence at the time of this application or that may be later negotiated by
the Union.
C. The Union's request for recognition and bargaining 10
On August 17 Griffith wrote Respondent that the Union had been designated as
collective-bargaining representative by a majority of its salesmen, and as proof
thereof, enclosed six representation cards signed by your employees. Griffith
requested an early meeting "to commence bargaining with you at the earliest pos-
sible time . . . with respect to wages, hours, and conditions of employment." On
August 20 Company President Heiden wrote Griffith that he had just returned from
a trip and that in "answer to this [the Union's] letter, wish to advise that I do not
feel that the majority of our salesmen would consider being represented by your
Union." On August 22 the Union informed Heiden that "you must have made a
mistake" in taking the position that the Union failed to represent a majority of the
nine salesmen. Griffith stated that "just to make sure that there is no mistake, I am
enclosing two (2) more signed cards for you to check out," and reiterated his
request for collective bargaining.
About a week later, Griffith, a union attorney, and another union representative
visited Heiden in his office. Heiden credibly testified that the men "wanted to know
if I would give them an agreement for recognition of the salesmen with a union
check-off, with no further bargaining until a future date when the rest of the
automobile [agencies] would be unionized." Heiden told the union representatives
that he had to attend to "personal affairs at home," that he "could not give them
an answer" at that time, and that he would give them one "when I was able."
On September 1 Respondent filed a petition for a representation election. The
petition was dismissed by the Regional Director on October 1, in view of the
pendency of the instant complaint proceeding.'1
Around September 22 or 23, when Griffith again asked Heiden about "recognition
and bargaining," Heiden replied that he was still unable to give him an answer.
D. The salesmen's continuing contacts with the Union;
the picketing of Respondent's premises 12
In the meantime, Andrew Bear, the chief union protagonist, continued to maintain
contact with the Union concerning its organizational progress at other automobile
dealers. Invited to meet with the Union's officers, three of Respondent's salesmen
visited its headquarters, where they were reassured about union drives elsewhere.
When shown a draft contract which the Union had prepared for negotiation with
dealers, the men pointed out that they already had "most of the things covered there"
and stressed that their major objectives was "a minimum commission."
Around September 1 three salesmen again met with the Union's representatives
and discussed the printed form contract which the Union had prepared for submission
to dealers. The agreement called for a "salary plus the minimum commission per
car." When the men expressed dissatisfaction with some clauses, they were told that
"they had to start somewhere and this would be a good basis ... at the beginning."
The men "were still kind of skeptical" about the success of the organizational drive
because the Union's campaign at other dealers did not appear to be going as expected.
The subject of picketing Respondent, "if Mr. Heiden wouldn't negotiate," was then
raised. The union representatives apparently suggested that the best time to picket
was during new-car showing later in the month, but the salesmen opposed this since
they had not been making money for a long time and new-car showing was the
best earning time. When the union representatives assured them that they would see
30 The findings in this section are based almost entirely on documentary evidence and
the testimony of Company President Heiden
n It Is the Board's policy not to process representation cases during the pendency of
unfair labor practice charges. N.L.R.B. v. Auto Ventshade, Inc., 276 F. 2d 303, 307-308
(C.A. 5).
"The findings in this section are based almost entirely on the credited testimony of
Respondent's witness Czubek.
GATEWAY CHEVROLET SALES, INC. 861
to it that Nickey Chevrolet (a competing dealer) was likewise picketed so that the
salesmen "won't be hurt," the three salesmen agreed to go along with the proposal.
However, upon returning and discussing the proposed picketing with the rest of
the men all salesmen decided against picketing Respondent at the indicated time.13
Notwithstanding the foregoing, the Union, by nonemployees, began to picket
Respondent's premises around September 23 (new-car display time). The picketing
continued for approximately 60 days. All of Respondent's salesmen remained on
the job during the entire time.
E. Respondent's alleged coercive statements and interrogation
Shortly after Respondent received the Union's request for recognition dated
August 17, Sales Manager Greene talked to at least three salesmen about their union
affiliation and sympathies. Greene asked Blake, in the presence of other salesmen,
whether he had signed a union card. Blake acknowledged that he had.
Around the same time, Greene asked Walz, while the latter was in a group with
other salesmen, if he had signed a union card. After Walz admitted he had, Greene
said, "it was like a slap in the face that we hadn't talked it over with him." 14
Around the same time, Greene told Bear, the Union's leading protagonist, in the
presence of other salesmen, " I am going to have to fire the man who brought the
union slips in." Bear replied, "I don't think you are that foolish. I brought them in."
Greene said, "I might as well, that is what Mr. Heiden is going to say." Bear
answered, "I don't think Mr. Heiden is that foolish either." 15
The above findings are based on the credited testimony of Blake, Walz, and Bear.
Greene did not testify.16
F. Conclusions respecting Respondent's refusal to recognize
and bargain with the Union
It is undisputed that eight of Respondent's nine automobile salesmen signed cards
expressly authorizing the Union "to represent" them and to "act" on their behalf
"to negotiate and conclude" bargaining agreements. It is also undisputed that the
Union mailed these cards to Respondent. The Union twice (August 17 and 22)
write Respondent requesting recognition and bargaining, but Company President
Heiden rejected these requests, giving as his reason, in writing (August 20), that
"I do not feel that the majority of our salesmen would consider being represented
by your Union." On September 1 Respondent filed a petition for a Board-conducted
election.
There is no dispute about the authenticity of the salesmen's signatures on the
authorization cards. In its brief, Respondent seeks to justify its refusal to recognize
and bargain with the Union on the following grounds: (1) It was entitled to insist
upon a Board election to determine the Union's majority status; (2) the authorization
cards did not "evidence" the employees' "free choice" in selecting the Union as
majority representative; (3) the Union "failed" to make "a clear and unequivocal"
demand for bargaining; (5) Respondent's salesmen "are independent contractors,
not employees" and, therefore, not entitled to bargaining under the Act; and (5) the
Union "is not a labor organization within the meaning of the Act."
For reasons to be stated, I reject all of these contentions and conclude that
Respondent's refusal to recognize and bargain with the Union violated Section
8(a)(5) and (1) of the Act.
>a Czubek testified that "upon returning to the dealership, we got to discussing with
the other men about it-they felt . . . that it wouldn't be hurting Nickey at all to have
pickets around unless they had the actual salesmen around there picketing "
14 Walz stated that since Greene's remark was "a natural reaction" he took no offense
'- Heiden testified that around a month or so later, after the picketing had commenced,
Bear brought this matter up directly to Heiden. Heiden quoted Bear as saying "that
he heard that he would be fired for helping organize the salesmen," to which he (Heiden)
replied, "that he was hired to sell cars, that he wasn't being fired and he is still working."
ii Although Walz, on cross-examination, said he had never heard Greene make the
remarks attributed to him by Bear, there is no evidence that Walz was present when they
were made. Bear identified company officials Holdener and Greene and Salesman Czubek
as present. The first two were not called to testify and Czubek, called by Respondent,
was not questioned about the incident
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Respondent's insistence upon a Board-conducted election
At the hearing, Respondent contended that authorization cards were not acceptable
means of proving a union's majority,17 and that it had the unqualified right to test
the Union's majority in a Board-conducted election. The law is settled, however,
that although Section 9(c)(1 )of the Act provides for the determination of repre-
sentation questions by secret ballot elections, an employer violates 8(a)(5) if he
refuses to recognize and bargain with a union holding authorization cards signed by a
majority of the unit employees, unless such refusal is motivated by a good-faith doubt
of the reliability of the cards. N.L.R.B. v. Elliot-Williams Co., Inc., 345 F. 2d 460.18
"There is no absolute right vested in an employer to demand an election." N.L.R.B.
v. Tnmfit of California, Inc., 211 F. 2d 206, 209 (C.A. 9). "The duty to bargain is
not dependent on a Board election and certification." Elliot-Williams Co., supra.
The question in each case is whether, in the light of all relevant facts, the employer
entertained a genuine doubt as to Union's majority status on the basis of authoriza-
tion cards.
In its brief, Respondent points to certain factors which, it claims, justified its
"insistence" upon a Board election. It states: "There was no seeking to gain time
within which to conduct a campaign of intimidation and coercion.... There were
no unfair labor practices. [Company President] Heiden told the salesmen no more
than that they should investigate the type of organization they were joining, a highly
reasonable position considering that Local 192 was so recently organized and its
officers then unknown. Subsequent developments [i.e., discovery that the Union was
an allegedly "corrupt" organization, infra] have shown the wisdom of Heiden's
course...." Respondent also relies on the claim (discussed infra) that, as it turned
out, "Gateway's salesmen signed the union cards on the assumption that the result
would be a city-wide election."
The short answer to Respondent's contentions is that "The fact as to whether an
employer entertained a genuine doubt that a union represents a majority of the
employees is to be determined as of the time the employer refused to recognize the
union. Once it is shown that the employer entertained no genuine doubt of this
kind at the time it refused to bargain, an unfair labor practice has been established.
The fact that, as it later developed, there were grounds which might have created a
genuine doubt at that time is then immaterial.'-' Fred Snow, et al. d/b/a Snow &
Sons v. N.L.R.B., 308 F. 2d 687, 694 (C.A. 9). See also, N.L.R.B. V. Whitelight
Products Division of White Rolling & Stamping Corporation, 298 F. 2d 12, 15
(C.A. 1).19 So far as it appears, the only reason Respondent gave the Union for
rejecting its recognition and bargaining demand is Heiden's statement in his letter
of August 20 "that I do not feel that the majority of our salesmen would consider
being represented by your Union." Respondent concedes "that at the time the
charge was filed neither Heiden nor any of his salesmen knew the sort of organiza-
tion which Local 192 is." Nor is there any evidence that Heiden had any informa-
tion that the salesmen had signed for an industry-wide unit at the time of his rejec-
tion of the Union's recognition demand on August 20.20 In any event, Heiden gave
neither of these reasons for rejecting the Union's demand in his written communica-
tion of August 20, or in his subsequent verbal communications to the Union. Accord-
ing to his own testimony, after August 20 he told the Union only that he could not
give it an answer at that time. Cf. N.L.R.B. v. Economy Food Center, Inc., 333
F. 2d 468, 472 (C.A. 7).
17 Respondent took the position that "The sole purpose of those cards is for . this
Board to establish a showing of interest in a proper representation proceeding"
18 See also N L.R B. v Mid-West Towel and Linea Service, Inc , 339 F 2d 958, 962-963
(C.A 7) ; N.L R B. v M J. McCarthy Motor Sales Co , 309 F 2d 732, 734 (C A 7) ,
N.L.RB. V. Larry Faul Oldsmobile Co, Inc, 316 F. 2d 595 (CA 7), enfg 138 NLRB
697, 701-704; N.L.R.B. v. Snow & Sons, supra; N.L R B. V. Philamon Laboratories, Inc.,
298 F. 2d 176, 179 (C.A. 2).
19 The Ninth Circuit Court most recently affirmed this doctrine in N.L.R.B. v. Kellogg's,
Inc., d/b/a Kellogg Mills, 347 F. 2d 219.
20As hereafter found, although there was some discussion between Heiden and the
salesmen about the desirability of industrywide bargaining prior to the card signing, there
is no evidence that Heiden reasonably believed that the salesmen signed the cards on this
basis on August 17 and 18 Indeed, Heiden testified that he was on vacation for a week
or 10 days before August 20 and, accordingly, he hardly had the opportunity to learn the
salesmen's views on this matter
GATEWAY CHEVROLET SALES, INC. 863
Nor is it determinative that there is here no evidence of systematic and extensive
employer interference, restraint, and coercion to undermine the Union in order to
dissipate its majority, as was the situation in other cases such as the Joy Silk Mills
and Stewart cases cited by Respondent.?' Although such conduct may constitute
persuasive evidence of employer bad-faith doubt of a union majority, "proof of
such motivation is not essential in order to make such a finding if lack of a reason-
able doubt is established in some other way." Snow & Sons v. N.L.R.B., supra, 693.
See also, Dixon Ford Shoe Co., Inc., 150 NLRB 861; N.L.R.B. v. Philamon Labora-
tories, Inc, supra, 180. It is not even essential "that lack of good faith doubt be
shown only by proof that the refusal was to gain time." N.L.R.B. V. Elliot-Williams
Co., supra. "The employer acts at his peril in refusing to recognize a duly selected
bargaining agency . . . unless the facts show that in the exercise of reasonable
judgment he lacked knowledge of . . . the selection of the majority representative"
(Ibid)
In light of the entire record-particularly the fact that Respondent was in posses-
sion of eight of its nine salesmen's authorization cards and in view of the nature of
Respondent's expressed reason for refusing to deal with the Union-I find and con-
clude that Respondent's refusal to recognize and bargain with the Union was not
based on a good-faith doubt of its majority status. Under the circumstances, Heiden's
asserted ground for such refusal-"that I do not feel that the majority of our sales-
men would consider being represented by your union"-indicates that his professed
reason for rejecting the Union's recognition and bargaining demands was that the
Union was allegedly not the proper bargaining agency for his men or not one they
really meant to select. However, choice of collective-bargaining representative is
for employees and not for employer.22 "The employees' right to refrain from
joining any union cannot be twisted into a right on the part of the employer to say,
when they do join, that they did not really mean it." Cf. N.L R B. v. Whitelight
Products, supra. See also, Ray Brooks v. N.L.R.B., 348 U.S. 96, 103.
2. The Union's majority status
Respondent's contention that the authorization cards did not "evidence an expres-
sion of the employees' free choice" is grounded on its claim that "Local 192 mis-
represented its city-wide status." In support of this argument, Respondent alleges in
its brief (p. 12): "Every salesman who was called as a witness by either party
testified that at the time he signed the union card he had been led to believe that
Local 192 had, or was about to, achieve industry-wide status." Respondent relies
on the testimony of four salesmen: Bear, Czubek, Walz, and Blake.
There is no doubt that the subject of industrywide representation was a matter of
interest and discussion among the salesmen; and that the salesmen looked to union-
ization of other Chicago automobile dealers as the most feasible way of achieving
their objective of minimum commissions on automobile sales.23 In his first meeting
with the three salesmen on August 17, Union Representative Griffith himself assured
the salesmen that industrywide organization was the Union's ultimate objective.
Furthermore, Griffith testified at the hearing that that was "our goal," and the record
shows that he advertised that as the Union's aim in calling a salesmen's meeting on
September 30 However, I cannot find, as Respondent seeks, that Griffith, or any
other union official, actually represented that the Union had citywide status. Nor is
there evidence that any salesman signed his authorization card with the express
reservation that it could be used only in an industrywide unit.
si Joy Silk Mills, Inc. v. N.L.R.B., 185 F 2d 732 (C A.D C) ; NLRB v W E Stewart,
et at. , d/b/a Stewart Oil Company, 207 F. 2d 8 (C A 5)
21 Section 7 of the Act specifically guarantees to employees "the right to bargain
collectively through representatives of their own choosing " See also N L R B. v Jones
& Laughlin Steel Corporation, 301 U S. 1, 33 , N.L.R.B. v National Mineral Company, 134
F. 2d 424, 426-427 (C A 7).
23 As Crubek testified, referring to the initial decision to organize, "we felt if that would
happen, it would equalize us with the bigger dealers and they couldn't chop the prices
up . . Referring to the subsequent frustration of the salesmen (after September 1)
when they learned of the Union's difficulty in organizing other dealers, Czubek testified,
"That [unionization of other dealers] was our basis, too, of actually signing these cards.
We figured that we would be happy to be in the union as long as they could get all the
rest of them And we specified Nickey Chevrolet, for one thing, which is the closest to
us-a big dealer And if they could get them in the union, well, it would be half of the
battle "
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, neither Bear, General Counsel's witness, nor Czubek, Respondent's witness-
both of whom attended the August 17 meeting-attributed to the Union's repre-
sentatives any claim of citywide status. Bear attributed to them only the statement
that "eventually they hoped it would be ..." Czubek quoted them as saying they
were "trying to organize the various dealerships," naming three such dealers.
Although two card signers, Walz and Blake, quoted the salesmen soliciting them,
Bear or Storcz, to the effect that the Union had already organized several dealers in
"trying to make it city-wide," 24 it is clear-even assuming that these were misrepre-
sentations as distinguished from expectations, that the two signers acted thereon,
and that such "misrepresentations" were sufficient to invalidate the cards in ques-
tion 25 that-only two of the Union's eight authorization cards were tainted, still
leaving the Union with a majority of six out of nine salesmen. Cf. N.L.R.B. v.
Mid-West Towel and Linen Service Inc., supra, 963; Snow & Sons v. N.L.R.B., supra,
693, footnote 9. In any event, in the light of the entire record-including the testi-
mony of Czubek and Bear that the union officials only represented that they were
trying to organize other dealers, and the doubtful reliability of Blake's and Walz'
testimony on this subject-I have grave misgiving that the representations they
attributed to the solicitors were in fact made.26 Moreover, "an employee's thoughts
(or afterthoughts) as to why he signed a union card . . . cannot negative the overt
action of having signed a card designating a union as bargaining agent." Joy Silk
Mills, Inc. v. N.L.R.B., supra, 743; N.L.R.B. v. Winn-Dixie Stores, Inc. and Winn-
Dixie Louisville, Inc., 341 F. 2d 750, 755 (C.A. 6). The language on the card
clearly designated the Union to act as the signatory's bargaining representative, with-
out reference to industrywide representation or bargaining. Cf. Anthony 0.
Grimaldi, d/b/a Superior Rambler, 150 NLRB 1264 (58 LRRM 1228, 1229) And
Walz admitted that before signing his name, he read the authorization card-as he
put it, so as to "find out who I was signing up with, what local and all that."
I find that the Union and its agents promised or represented to the salesmen no
more than that the Union hoped or would attempt to organize other dealers in
Chicago in order to enable it to bargain effectively on a multiemployer basis. These
statements are not even misrepresentations if they accurately reflect union intention.
There is no evidence that they do not. The contrary is indicated by the fact that
around the very period here involved the Union sought to organize salesmen of
many other automobile dealers-including McCormick-Ford, Nickey Chevrolet,
Johnson-Ford, Nelson Chevrolet, and Star Pontiac.27
Accordingly, I conclude that Respondent failed to show that the Union's majority
was tainted by an alleged misrepresentation as to its "city-wide status" at the time
the salesmen executed the authorization cards. Under the circumstances, a presump-
tion of validity attaches to the authorizations on the face of the union cards See
N.L.R.B. v. Sunshine Mining Co., 110 F. 2d 780, 790 (C.A. 9), cert. denied 312
U S 678; N.L.R B. v. Winn-Dixie Stoi es, Inc., 341 F. 2d 750, 754-755 (C.A 6).
24 It appears that the Union had in fact organized at least three dealers and al,o that
It had conducted organizational drives elsewhere (infra, footnote 27).
2c Cf. N.L R B V. H Rohtstesn & Co., Inc., 266 F. 2d 407 (C A. 1) ; N L R Ii v Il ai old
Koehler, et al, d/b /a Koehler' s Wholesale Restaurant Supply , 328 F 2d 777 (C A 7)
Englewood Lumber Company, 130 NLRB 394, 395, 408. See also Amalgamated Clothing
Workers of America, AFL-CIO (Edro Corp.) v N.L R B , 345 F 2d 264 (C A 2)
"Both Blake and Walz testified as General Counsel witnesses under subpena Blake,
a man of 64, impressed me as apprehensive and fearful lest his testimony against his
employer might effect his employment. In addition to the alleged misrepresentation
about the Union's organization of other dealers, Walz indicated that he was untruthfully
informed that all but one of the other salesmen had signed authorization cards before
he was solicited, and Blake testified that he was informed that he would save on an
initiation fee if he signed up immediately. Neither claimed, however, that these alleged
representations were the controlling reasons for their signing cards ; nor does Respondent
rely on these as grounds for invalidating these cards.
' In addition to the record in this case concerning McCormick-Ford and Nickey
Chevrolet, see the record in companion case Nelson Chevrolet, Case No 13-CA-6643,
decided this day-which shows that McCormick-Ford was certified after a Board-conducted
election held on August 3, that it won an election at Station Wagon Sales ; and that it
has a recognition agreement with Star-Pontiac. The Nelson employees were signed up by
August 19 See also Trial Examiner Summer's Decision in Hickey Chevrolet Sales, Inc,
Case No 13-CA-6401 (adopted by the Board in the absence of exceptions on March 2,
1965, 58 LRRM 1512)-of which I take official notice-where it was found that the
union's campaign to organize that dealer began in the spring of 1964
GATEWAY CHEVROLET SALES, INC. 865
3. The Union's alleged failure to make an unequivocal bargaining demand
The principle relied on by Respondent-"that an employer has no duty to bargain
where the Union has not signified its desire to negotiate"-is unassailable. While
no "special formula or form or words" is necessary to invoke bargaining (Joy Silk
Mills, Inc. v. N.L.R.B. 185 F. 2d 732, 741 (C.A D C.), cert. denied 341 U.S. 914),
there must be at least "some indication" of willingness to bargain "to put the employer
in default." N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 297.
See also N.L.R.B. v. Barney's Supercenter, Inc, 296 F. 2d 91, 93-94 (C.A. 3).
However, contrary to Respondent's contention, the record shows that the Union
made clear its object to negotiate and bargain with, as well as to secure recognition
from, Respondent.
Admittedly, on August 17 and again on August 22, the Union requested Respond-
ent to meet with it and "commence bargaining with you at the earliest possible time
... with respect to wages, hours and conditions of employment." It is true, as Com-
pany President Heiden credibly testified, that about a week later the Union verbally
asked him to sign an agreement of limited scope with the understanding that the Union
would ask for "no further bargaining until a future date when the rest of the automo-
bile [agencies] would be unionized." Specifically, the agreement called for immediate
recognition of the Union, a union shop, dues checkoff, and a provision for subse-
quently negotiating wages and other benefits on 30 days notice. However, the fact
that the Union was willing to defer bargaining on most of the usual terms and con-
ditions of employment until after it unionized other dealers-ostensibly in order to
act on behalf of its members with consistency and maximum effectiveness-is imma-
terial. The ad hoc agreement it sought pertained to terms and conditions of employ-
ment as to which Respondent was under an obligation to bargain with the employees'
statutory representative. Certainly. Respondent was not prejudiced by the Union's
piecemeal bargaining approach Moreover, in any event, the record discloses that
when the Union's representative later, at the end of September, asked Heiden to bar-
gain, as well as to recognize it 28 Heiden, according to his own testimony, merely "told
him [i.e. Griffith] I had no answer for him." Furthermore, Respondent's refusal to
accord recognition to the majority representative of its employees in itself justifies a
finding of refusal to bargain. See Tinley Park Dairy Co., d/b/a Country Lane Food
Store, 142 NLRB 683, 686-687, 693; Superior Rambler, 150 NLRB 1264. Cf.
N.L R B v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.),
361 US 477, 484-485; McQuay-Norris Manufacturing Company v. N.L.R.B., 116
F. 2d 748, 751-754 (C A. 7) 29
Accordingly, I conclude that Respondent was not justified in refusing to recognize
and bargain with the Union on the ground that the Union's demands therefore were
improper and insufficient in law.30
4. The employment status of the salesmen
Respondent's contention that its salesmen "are independent contractors, not employ-
ees" is not supported by the record From all that appears, the relationship between
Company and salesmen is that of the ordinary employer-employee relationship as
found in numerous cases heretofore considered by the Board and courts. I so find.
2' As indicated in section III, D, supra, by early September the Union had printed a
proposed agreement covering wages and other conditions of employment for submission
to dealers.
11 The cases relied on by Respondent in support of its contention that the Union failed
to make an unequivocal bargaining demand are distinguishable Thus, in John Waiford,
d/b/a Waf'ord Cabinet Company, 95 NLRB 1407, the Union asked for neither recognition
nor bargaining, the request being limited to "a meeting for the purpose of discussing
certification by the Board," 95 NLRB at 1413, 1409. In Valley Broadcasting Company,
189 P. 2d 582 (C.A. 6), enfg. as modified 87 NLRB 1144, the court (agreeing with the
dissenting Board member) construed the "request for recognition . . merely a pre-
requisite he [the union agent] must comply with before he could file a petition for an
election" (87 NLRB at 1148) ; and at no time in its subsequent dealing with the Union
was the employer's "good faith . ever put to the test by the union" (id at 1149).
In Graff Motor Supply Company, 107 NLRB 175, 182, the union "merely outlined the
alternative courses of procedure available to Respondent to settle any question which
might exist as to whether the Union represented a majority."
30 It is also noted that in its petition for an election filed September 1, Respondent
expressly stated that the Union had made, and Respondent had declined, a request for
recognition by the Union.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in other employment relationships, Respondent procures the product to be sold
(automobiles), owns and maintains the showroom where it is displayed, and fixes
the prices at which it is to be sold. When "hired," the salesmen are "given an oppor-
tunity to learn the working conditions," including the already established compensa-
tion structure. The salesmen put in a full workday for Respondent, on regular shifts.
They have no capital investment, pay no rent, and employ no help. In general, all
deals worked out between salesmen and customers must receive management approval.
Although paid by commission, the salesmen do not ordinarily have opportunity for
profit or loss greater than that usually afforded any employee working on a commis-
sion basis Those meeting a certain sales quota are given bonuses (a free demon-
strator automobile and a share of the "house deal" commissions). In addition to
these fringe benefits, salesmen working for the Company a specified period receive
paid vacations, the duration of which depends on length of service with the Company.
Income taxes and social security payments are withheld from the checks of the sales-
men as ordinary payroll deductions. Finally, the relationship between Respondent
and its salesmen is continuous and indefinite, terminable at the option of either party
without contractual liability.
It is evident from the foregoing and the entire record that the work of the salesmen
is completely integrated into Respondent's regular business in a manner characteristic
of an employer-employee relationship. The salesmen constitute Respondent's basic
work force in the sale of its product. I conclude that they are employees, and not
independent contractors, under the "right to control" test traditionally used for
determining the distinction between independent contractor and employees. See
N.L R.B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983, 986 (C.A. 7);
Williams v. United States, 126 F. 2d 129 (C.A. 7), cert. denied 317 US. 655;
N.L.R.B. v. Keystone Floors, Inc., d/b/a Keystone Universal Carpet Co., 306 F. 2d
560, 562-563 (C A. 3); United Insurance Company of America v. N.L.R B., 304 F.
2d 86 (C.A. 7)
This is not to say that the record is totally devoid of factors sometimes evidencing
independent contractor relationship. Thus, Respondent' s salesmen enjoy a large
measure of discretion in the performance of their duties; it is clear, however, that such
discretion is hardly more than that required by the nature of Respondent's business.
Furthermore, although a salesman must usually secure approval of a "deal" from
management if there is disagreement on the trade-in appraisal, he may "buy" the
deal, thereby in a sense himself assuming the risk of profit or loss; these instances,
however, are infrequent exceptions. Finally, although salesmen are expected to
report absences and latenesses to the Company, they are generally free to take leave.
It is clear that these factors, even if constituting indicia of independent contractor
status, are far outweighed by those establishing the existence of an employer-employee
relationship. The nature of the relationship can be judged only by "all ... factors
in combination." Keystone Floors, supra, 563
Accordingly, I reject Respondent's contention that its salesmen are independent
contractors, outside the protection of the Act.31
5. The status of the Union as a labor organization
Section 2(5) of the Act defines the term "labor organization" as "any organization
of any kind . . in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning" wages, hours, or conditions
of employment. Theie is no doubt, and I find, that the Union (Local 192) is a
labor organization within the broad statutory definition of that term. See N.L.R.B.
v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203, 210-215. The
Union admits employees to membership, Respondent's own salesmen having signed
membership applications. Its organizers have actively campaigned among the employ-
31 It is significant that in its petition for representation election filed on September 1,
Respondent itself characterized its salesmen as employees . The petition also describes
as the appropriate bargaining unit "all new and used car salesmen ," the same appropriate
unit alleged in the complaint. Although in its answer Respondent denied the appropriate-
ness of this unit, it does not raise this question in its brief. I find that the unit, as set
forth in the complaint, is appropriate for collective bargaining, being the usual unit pre-
scribed by the Board in the retail automobile industry. See M. J. McCarthy Motor
Sales Co., 135 NLRB 828, 837, enfd. 309 F 2d 732, 733 (C.A. 7) ; Larry Faul Oldsmobile
Co , Inc., 138 NLRB 677, 701, modified on other grounds, 316 F. 2d 595 (C A 7) ; Irving-
ton Motors, Inc., 147 NLRB 565; Superior Rambler, 150 NLRB 1264. Compare Nelson
Chevrolet-the companion case, supra, footnote 27-where Respondent raised neither the
appropriate unit nor the independent contractor-employee issue
GATEWAY CHEVROLET SALES, INC. 867
ees of Respondent and other employers , talking to them and distributing union litera-
ture and authorization cards. Indeed, the Union has been certified as bargaining
representative of the employees of one dealer , has won a Board election in another,
and has a recognition agreement with a third (supra , footnote 27).
Respondent 's basic position is that Local 192 is a "corrupt" union, "organized for
ulterior purposes," and not a true or bona fide labor organization It also contends
that even if it were guilty of a refusal to bargain in August 1964, it "would not effectu-
ate the policies of the Act to require Gateway to bargain with this amoral organiza-
tion." In support of its position Respondent offered to prove at the hearing that two
of the Local's officers (Cecil and Rogers) have police records-one for automobile
theft and the other for assault and battery ; and that at the time of signing authoriza-
tion cards , the salesmen were unaware of their background . Immediately preceding
and since the close of the hearing , Respondent also moved for a continuance of the
hearing or , in the alternative , for a reopening of the case for the purpose of investi-
gating the circumstances surrounding recent ( October 15 ) action of the Local's
parent International (Distillery Rectifying Wine & Allied Workers International
Union ) placing the Local under "trusteeship ," particularly insofar as it may affect its
status as a labor organization . 32 Attached to its renewed or latest motion of March 10,
1965, is a copy of a preliminary injunction issued by a United States District Court
(Northern District of Illinois , Eastern Division ) on March 3 , 1965, in the case of
the International against the Local, enforcing the trusteeship imposed by the Inter-
national on October 15, and enjoining the Local "from engaging in any organizing
or collective bargaining in behalf" of the Local "pending the determination of this
matter or until further order of this Court " The court noted that on November 16,
the International reported to the Bureau of Labor Management Reports, Department
of Labor, that it had instituted the trusteeship proceeding under its constitution "to
correct corruption or financial malpractice ," to "assure the performance of collective
bargaining agreements ," and "to restore democratic procedures ." Among the con-
clusions reached by the court was "that jurisdiction of the subject matter is conferred"
upon it under Section 304(b ) of the Labor-Management Reporting and Disclosure Act
of 1959 (LMRDA); that "financial malpractices have occurred within the local union
within" the meaning of Section 302 of the Act ; and that the "trusteeship imposed upon
the local union was and is proper and - for pui poses allowed within the purview" of that
Section. The Local was directed to answer the International 's complaint within 20
days of the court 's order.
At the hearing and in opposition to Respondent's March 10 , 1965, motion , General
Counsel took the position that the nature and character of the Local's leadership was
not material in this proceeding ; that such matters are not cognizable in an unfair labor
practice proceeding ; that to permit litigation of such matters would unduly prolong
the hearing ; that Congress entrusted resolution of issues of this kind to the Depart-
ment of Labor; that the proceedings in the "federal district court [heretofore men-
tioned] best illustrate the fact that other forums are better equipped " to deal with
those matters ; 33 that "just as there are established procedures for designating a bar-
gaining representative there are also established procedures for terminating the status
of an agent or agency as a bargaining representative "; that, in any event , Respond-
ent "can easily determine whether or not this union desires good faith bargaining as
a labor organization . . . by offering to bargain ", and, finally, that Section 8(b)(3)
of the Act "provides a remedy against a labor organization which does not bargain in
good faith."
At and subsequent to the hearing , I rejected Respondent 's proffered proof con-
cerning the allegedly corrupt character of the Local's leadership on the basis of the
Board's decisions in Alto Plastics Manufacturing Corporation , 136 NLRB 850, and
Edward Fields, Incorporated, 141 NLRB 1183. It is on the authority of these cases
that I must again deny Respondent's renewed or latest motion of March 10, 1965.
In Alto Plastics-a representation case-the Board , refusing to withhold its proc-
esses, directing an election despite evidence of improper and corrupt practices in the
32 By order dated December 24 (after the close of the hearing ), I granted Respondent
30 days within which to produce additional justification for reopening the case On
January 25 , 1965, Respondent submitted certain information respecting the status of the
trusteeship proceeding . Its request for additional time to investigate the matter was
denied by order dated February 3, 1965. On March 10, 1965, Respondent renewed its
motion for a reopening of the case ; that motion is pending
33 See also United Brotherhood of Carpenters and Joiners of America , et at v Brown,
59 LRRM 2140 (C.A. 10).
217-919-66-vol. ' 156-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
administration of the union's affairs. The Board stated [136 NLRB at 852-853] that
although it was "acutely aware" that "individuals with highly dubious records .. .
have insidiously infiltrated, and gained control over, certain segments of the American
labor movement for their personal gain," and although it was "greatly concerned
about the abuses to which some employees have thus been subjected," it was "outside
the Board's statutory competence and ... the Board is therefore without power under
the Act to remedy them." The Board reasoned (136 NLRB at 853-854):
In titles I through VI of the Labor-Management Reporting and Disclosure Act
of 1959, Congress expressly dealt with such matters. It is particularly significant
that the remedies provided in the LMRDA were given to individual employees
directly, and to the public through the intervention of the Secretary of Labor
or the Department of Justice The theory underlying this type of remedial
legislation is not to "illegalize" the organization itself, but to afford protection
to all parties concerned by creating specific Federal rights and remedies whereby
the activities of the organization and its officers and agents are regulated and
subjected to judicial review in the vindication of those rights. Had Congiess
desired to strike directly at the organization itself, Congress would have said so.
Moreover, in Leedom v. International Union Mine, Mill sand Smelter Woikers,
352 U S. 145, the Supreme Court held that the Board did not have any implied
power to withhold its processes from a union as a remedy for the filing of a false
non-Communist affidavit by the union's president under Section 9(h) of the
Act, as the only remedy for a violation of that section was the one provided in
the Criminal Code. We believe the same rationale is applicable in the instant
case. Congress provided certain remedies in the LMRDA for parties aggrieved
as a result of unlawful activities in the conduct of internal union affairs. It
would be manifestly improper for the Board to fashion a remedy . . . Congress
did not see fit to authorize. There is not the slightest indication in the LMRDA
that Congress intended to place the regulation of internal union affairs within
the Board's province. Nor did Congress, in amending the Act, seek to amend it
in this respect. On the contrary, Section 603(b) of the LMRDA provides: ".. .
nor shall anything contained in [titles I through VI] ... of this Act be construed
to confer any rights, privileges, immunities, or defenses upon employers, or to
impair or otherwise affect the rights of any person under the National Labor
Relations Act, as amended." [Emphasis supplied.] Thus Congress gave very
explicit expression in the law to its intent that the Board should not withhold its
procedures or remedies where unions or employers, or their officers or agents,
breached the obligations laid down in titles I through VI of LMRDA. [Foot-
notes omitted.]
The Board later applied these principles in Edward Fields, supra-an unfair labor
practice case. There, as here, serious allegations were made respecting the manage-
ment of the internal affairs of the local selected by the employees as bargaining repre-
sentative through authorization cards. There, too, it was claimed that the union was
under the domination of an indiviidual with a serious criminal record. The Trial
Examiner rejected the company's contentions on the authority of Alto Plastics and
his action was affirmed by the Board. (141 NLRB 1182, 1184-1185.) See also
The General Tire of Miami Beach, Inc., et al., 137 NLRB 473, 474, footnote 3-
another complaint case where the Board gave effect to the Alto Plastics doctrine 34
In its brief, Respondent argues that the "technical and sterile definition of `labor
organization' in Section 2 of the Act must be construed in the light of" the overrid-
ing congressional objective expressed in Section 1 of the Act, to protect and confer
benefits upon "workers" rather than upon labor organizations. (Cf. N.L.R.B. V.
Hymie Schwartz, d/b/a Lion Brand Manufacturing Company, 146 F. 2d 773, 774
(C A. 5).) In addition, it stresses that, "while the Board was not created to enforce
the Labor Management Reporting and Disclosure Act, it does not follow that the
Board may ignore so important and vital a piece of legislation, particularly since it
stands in part materia with the Act itself." Respondent relies on Southern Steamship
Company v. N.L.R.B., 316 US. 31, where the Supreme Court held that the Board
must heed congressional objectives expressed in other legislation-in that case sup-
pression of mutiny on the high seas-in its administration of the Act. The Court there
said "that the Board has not been commissioned to effectuate the policies of the
Labor Relations Act so single-mindedly that it may wholly ignore other and equally
important Congressional objectives. Frequently the entire scope of Congressional
34 Edward Fields and General Tire were reviewed by the Courts of Appeals for the
Second and Fifth Circuits, respectively, 325 F. 2d 754 and 332 F. 2d 58. Both courts
disposed of the cases without having to reach the Alto Plastics issue.
GATEWAY CHEVROLET SALES, INC. 869
purpose calls for careful accommodation of one statutory scheme to another and it
is not too much to demand of an administrative body that it undertake this accommo-
dation without excessive emphasis upon its immediate task " 316 U.S at 47.30
Respondent in effect invites reconsideration of the Alto Plastics doctrine. How-
,ever, so long as that doctrine remains in effect, it is binding upon me and I must fol-
low and apply it. As the Board has pointed out, "it is the sole prerogative of the
'Board to decide when to reverse its own precedents" and when to reexamine policies
and interpretations previously formulated. The Prudential Insurance Company of
America (Insurance Agents' International Union, AFL-CIO), 119 NLRB 768, 773.
See also Ranco, Inc., 109 NLRB 998, 1010, footnote 8. Accordingly, I adhere to my
ruling at the hearing that the question whether Local 192 is a corrupt or racketeer
Union, or dominated by individuals with criminal records, is not germane to the
determination of whether the Local is a labor organization within the meaning of the
Act. For the reasons stated, I cannot recommend that the Board withhold its proc-
esses from the Union or that it decline to issue a bargaining order to remedy Respond-
ent's unlawful refusal to bargain, even assuming that Respondent were able to estab-
lish as true and credible, the evidence it proffered.31,
G. Conclusions respecting Respondent's alleged coercive
statements and interrogation
As found in section III, E, supra, shortly after it received the Union's August 17
recognition and bargaining demand, Sales Manager Greene spoke to three salesmen
about their union affiliation and sympathies. He individually questioned Blake and
Walz whether they signed union cards. In Blake's case, his affirmative reply ended
the conversation. In Walz' case, Greene remarked that his joining the Union was
"like a slap in the face" because the employees had not fii st "talked it over with him."
Around the time of these incidents Greene warned Bear, the Union's principal
.employee organizer, that he was "going to have to fire the man who biought the
Union slips in."
In view of the fact that Respondent already had in its possession a majority of its
-employees' authorization cards, including Blake's and Walz', it is doubtful that the
purpose of Green's qeustioning was designed merely to ascertain the Union's majority
status 37 Cf. Blue Flash Express, Inc, 109 NLRB 591. See also, N.L R B. v Mid-
West Towel and Linen Service, Inc., 339 F 2d 958, 960-961 (C.A 7) Considering
,Greene's contemporaneous "slap in the face" remark, and his threat to fire the sales-
man responsible for bringing in the cards, the reasonable inference is that the pur-
pose of the questioning was to express Respondent's displeasure at the employees'
selection of the union. Accordingly, and in view of Respondent's subsequent unlaw-
ful refusal to bargain, I find, contrary to Respondent's contention, that the question-
ing was not "isolated" and "innocuous." Cf. Porto Mills, Inc., 149 NLRB 1454,
35 Compare Aerojet-General Corporation , 144 NLRB 368, 371, where the Board recently
said, "Administration of the National Labor Relations Act, it must be remembered, is an
important, but not the sole , instrument of the national labor policy Although exclusive
jurisdiction over representation matters has been committed to the Board, we do not
regard this as a license to carry out our responsibilities with myopic disregard for other
important considerations affecting the national interest and well-being . We have in the
past in appropriate situations taken into account and sought to accommodate our pro-
ceedings to other instruments of the national labor policy We believe that this also is
such a situation " [ Footnotes omitted 1
3e It is possible that the issue here posed covering the character of the Local ' s leader-
ship will become moot if and when the Local 's parent International prevails in the pend-
ing trusteeship proceeding in the United States District Court. As noted, that court
has already issued an order confirming the trusteeship , pending ultimate resolution of
the issue The court' s order requires the Local to release custody of all records and assets
to the trustee designated by the International (Joseph J. O'Neill ), who "was placed in
charge" of the Local. The trustee status of the Local does not affect Respondent's
.obligation to bargain with the Local through the duly designated trustee. See Darling
and Company, 116 NLRB 374, 375-376; Terminal System, Inc , et at., 127 NLRB 979,
980-981 , Pennington Bros , Inc., 124 NLRB 935, 936 Cf. Industrial Rayon Corporation,
130 NLRB 427, 438, enfd. 297 F. 2d 62 (C.A. 6) ; Silvino Giannasca, d/b/a Imperial
Reed if Rattan Furniture Co., 117 NLRB 495 ; Awning Research Institute , 116 NLRB 505.
37 The cards were mailed to Respondent with the Union's August 17 letter requesting
recognition . Respondent never questioned the authenticity of the cards In any event,
-it undoubtedly had in its possession W-2 forms and other documents against which
: it could have checked authenticity.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
footnote 30.38 In reaching this conclusion , I have not overlooked Respondent's
argument that Walz testified at the hearing that he regarded Greene's remark as "a
natural reaction ." Cf. Time-O-Matic, Inc. v. N.L.R.B., 264 F. 2d 96, 99 (C.A. 7);
N.L.R.B. v. Hill and Hill Truck Line, Inc., 266 F. 2d 883, 885 (C.A. 5). Nor do I
discount the fact that Company President Heiden later reassured Bear that he would
not be fired for his union activity. It is noted that such reassurance was not given
Bear until a month after the threat was uttered and only after the height of the Union's
organizational activity.
Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating employees concerning their union affiliation and activity.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist
therefrom, and take certain affirmative action designed to effectuate the policies of the
Act. Since I have found that Respondent unlawfully refused to recognize and bargain
with the Union, the Recommended Order will require Respondent, upon request, to
bargain collectively with the Union and, if an understanding is reached, to embody
such understanding in a signed agreement.
For the reasons already set forth in section III, F, 5, supra, I reject Respondent's
request that the Board decline to issue a bargaining order to remedy Respondent's
unlawful refusal to bargain, even assuming Respondent were able to establish the
truth of the evidence it proffered concerning the alleged corruptness and undesirable
character of the Union. It should be pointed out, however, that in the event it devel-
ops that the Union fails to fulfill its statutory obligation as exclusive bargaining rep-
resentative of the employees in the appropriate unit, the Board may, on appropriate
application, rescind the Union's authority to act in that capacity. See Edward
Fields, Incorporated, 141 NLRB 1182, 1196. Cf. Independent Metal Workers Union,
Local No. 1 (Hughes Tool Company), 147 NLRB 1573.
CONCLUSIONS OF LAW
1. Gateway Chevrolet Sales, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All automobile salesmen employed by Respondent at its location in Chicago,
Illinois, excluding office clerical employees, all other employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4 At all times since August 17, 1964, the Union has been the exclusive representa-
tive of all the employees in the above-appropriate unit, for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5 By refusing to recognize and bargain with the Union on and after August 20,
1964, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. By the conduct above described and by coercively questioning employees con-
cerning their union affiliation and activity, Respondent has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act -
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that Gateway Chevrolet Sales, Inc., its officers,
agents, successors, and assigns, shall:
As General Counsel notes in his brief, the complaint failed to allege Greene's threat
to fire as a violation of 8(a)(1) Since General Counsel specifically states that because of
this circumstance he does not claim the threat to be a violation, I make no finding in
this respect. Cf. Federal Tool Corporation, 130 NLRB 210, 216, footnote 15. However,
as General Counsel further urges, this does not preclude consideration of the threat for
"background" purposes to shed light on the character of Respondent's other conduct.
Hendrix Manufacturing Company, Inc v. N.L.R.B, 321 F 2d 100, 103-104 (C.A. 5).
GATEWAY CHEVROLET SALES, INC. 871
1. Cease and desist from-
(a) Refusing to recognize and bargain collectively with Automobile Salesmen &
Misc. Workers Union Local No. 192, AFL -CIO, as the exclusive representative of
the employees in a unit composed of its automobile salesmen at Chicago, Illinois,
excluding all other employees , office clerical employees , guards, and supervisors as
• defined in the Act.
(b) Coercively questioning employees with respect to their union affiliations , activ-
ities , or desires.
(c) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the right to self-organization , to join or assist the above-
named or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in any other concerted activities for the
purpose of collective bargaining or other mutual aid or protection , 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 employ-
ment, as authorized by Section 8(a)(3) of the National Labor Relations Act, as
amended.
2. Take the following affirmative action which I find will effectuate the policies
-of the Act:
(a) Upon request , bargain collectively with the above -named Union , as the exclu-
sive representative of the employees in the Unit set forth above , with respect to rates
of pay, wages , hours of employment , and other conditions of employment, and if
an understanding is reached , embody the same in a signed agreement.
(b) Post at its place of business in Chicago , Illinois, copies of the attached notice
marked "Appendix ." 39 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 13 , shall, after being duly signed by a representative of Respondent, be
posted by Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 13, in writing , within 20 days from
the receipt of this Decision , what steps Respondent has taken to comply therewith 40
39 In the event that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order"
10 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Automobile Salesmen &
Misc. Workers Union Local No. 192 , AFL-CIO, as the exclusive representative
of all of our automobile salesmen , with respect to rates of pay and other terms
and conditions of employment , and if an understanding is reached , embody the
same in a signed agreement.
WE WILL NOT coercively question our employees concerning their union affilia-
tions, sympathies , or activities.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations , to join or assist Automobile Salesmen & Misc . Workers Union
Local No. 192 , AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor orga-
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nization as a condition of employment, as authorized in Section 8(a)(3) of the-
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named labor organization or any other labor
organization.
GATEWAY CHEVROLET SALES, INC.,
Employer.
Dated------------------- By------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,.
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois, Telephone No. 828-7572.
Mid-States Metal Products, Inc. and Willard Ray Dobbins
Local 738, International Chemical Workers Union , AFL-CIO
[Mid-States Metal Products , Inc.] and Willard Ray Dobbins.
Cases Nos. 26-CA-1903 and 26-CB-260. January 17, 1966
DECISION AND ORDER
On July 7, 1965, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that the above-
named Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent
Union filed exceptions and a supporting brief ; the Respondent
Employer filed exceptions; and the General Counsel filed cross-
exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagori a].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
exceptions, cross-exceptions, briefs, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
i The Trial Examiner found, as to the Respondent Employer, that its promulgation in
a collective-bargaining agreement of, and its enforcement of, a rule, which prohibited
solicitation for or against any labor organization on company premises during nonwork-
156 NLRB No. 90.