Grand Auto, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1024 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grand Auto, Inc. and Retail Clerks Union Local 1434,
Retail Clerks International Association, AFL-CIO.
Cases 32-CA-281 and 32-RC-45 (formerly 20-
CA-13160 and 20-RC-14255)
September 29, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 16, 1978, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a response to Respondent's exceptions.
Pursuant to the previsions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found, and we
agree, that Respondent committed violations of Sec-
tion 8(a)(1) of the Act by (1) threatening to discharge
unit employees if they sought union representation
and (2) by promising and granting wage increases and
adjustments of wage scales to discourage employee
support for the Union. The Administrative Law
Judge also concluded that Respondent's unfair labor
practices prevented the likelihood of a free and fair
election being held and therefore warranted the impo-
sition of a bargaining order. In finding that a bargain-
ing order was required as part of the remedy, the Ad-
ministrative Law Judge failed to indicate when
Respondent's bargaining obligation commenced. In
accordance with our decision in Trading Port, Inc.,
219 NLRB 298 (1975), we find that Respondent's bar-
gaining obligation commenced May 13, the date the
Union acquired majority status in the appropriate
unit and requested recognition and bargaining.2 We
further find, as alleged in the complaint but not men-
tioned by the Administrative Law Judge, that Re-
spondent violated Section 8(a)(5) and (1) of the Act
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Producrs, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Although Respondent formally refused to bargain on June I, 1977. we
find Respondent was obligated to bargain as of May 13, the date on which
the Union both represented a majority of Respondent's employees and re-
quested recognition and bargaining.
by its refusal to bargain with the Union and by its
unilateral grant of wage increases to employees.
The complaint alleged, inter alia, that since May
13, 1977, 3 the Union represented a majority of Re-
spondent's employees in the Sparks and Carson City,
Nevada, stores and that since May 13, and continuing
to date, the Union has requested it to recognize and
bargain with the Union. The complaint also alleges
that Respondent unilaterally granted employees wage
increases. The record establishes, and the Administra-
tive L.aw Judge found, that on May 13 the Union had
secured valid authorization cards from 19 of the 33
unit employees. In addition, between May 13 and
June 1, the Union secured 9 more authorization cards
for a total of 28 out of a unit of 33 employees. On
May 13, the Union, by letter, requested recognition
and bargaining, and on June 1., Respondent formally
refused to recognize the Union as the exclusive bar-
gaining representative of its employees. In the mean-
time, Respondent engaged in unfair labor practices,
which made the likelihood of a free and fair election
improbable. In these circumstances, all of the ele-
ments for finding violations of Section 8(a)(5) and (1)
have been alleged and litigated.
Accordingly, we find that the record supports and
compels a finding that Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain
with the Union and by granting wage increases im-
mediately preceding the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge as modified be-
low and hereby orders that the Respondent, Grand
Auto, Inc., Sparks and Carson City, Nevada, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in said recommended Order, as so modi-
fied:
1. Delete paragraph l(c) and add the following:
"(c) Refusing to recognize and bargain collectively
with Retail Clerks Union Local 1434, Retail Clerks
International Association, AFL CIO, as the exclusive
bargaining representative of its employees in the ap-
propriate unit described below.
"(d) Instituting unilateral changes in wages, hours,
and terms and conditions of employment of unit em-
ployees without first bargaining with the Union.
However, nothing herein is to be construed as requir-
ing Respondent to rescind wage increases already
granted.
1 All dates herein are 1977 unless otherwise noted.
238 NLRB No. 147
1024
GRAND AU7TO. INC
"(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
Notr I(E To EMPL OYELS
POSTED BY ORDIER OF TlHIF
NATIONAL LABOR RELAHIONS BOARD
An Agency of the United States Government
WE WIIl.. NOT threaten our employees with
discharge fbr seeking representation by Retail
Clerks Union Local 1434, Retail Clerks Interna-
tional Association, AFI ('IO. or any labor or-
ganization.
WE WIL l NOT promise or grant our employees
wage increases and favorable wage adjustments
to dissuade their efforts to secure representation
by the above labor organization.
WI: Wll 1. NOT refuse to recognize or bargain
collectively with Retail Clerks Association
Union Local 1434, Retail Clerks International
Association, AFL-CIO, as the exclusive bargain-
ing representative of our employees in the appro-
priate bargaining unit described below.
Wi WILl. NOI in any other manner interfere
with, restrain, or coerce our employees in their
right to form, join, or assist the above labor or-
ganization, to bargain collectively concerning
their rates of pay, wages, hours, and working
conditions through that labor organization, or to
engage in other concerted activities for the pur-
pose of collective bargaining or mutual aid and
protection.
WE WILL NOT institute unilateral changes in
the wages, hours, and terms and conditions of
employment of unit employees without first bar-
gaining with the Union.
WE WIL. recognize and bargain collectively
with the above labor organization concerning the
rates of pay, wages, hours, and working condi-
tions of our employees in the following unit:
All of our selling and nonselling employees
employed at our Sparks and Carson City, Ne-
vada, locations, excluding guards and supervi-
sors as defined in the Act.
GRAND AU1i, IN(.
DECISION
STATEMEN ()F THE CASE
GEoRGiE C1RIS'IENSEN, Administrative Law Judge: On
January 10 and 11, 1978. 1 conducted a hearing at Reno,
Nevada. to try issues raised by a complaint issued on Sep-
tember 27, 1977,' and amended on November 16 and on
January 5, 1978.2 and Retail Clerks Union Local 1434. Re-
tail Clerks International Association, AFI CIO's.' July 20
objections to an election conducted on July 18. Since the
complaint and election objections alleged the same com-
pan3 conduct as basis therefor. they were consolidated for
hearing and resolution.
The amended complaint and election objections allege
that Grand Auto, Inc..' dissipated the Union's majority rep-
resentative status among an appropriate unit of the Compa-
ny's employees by:
I. Threatening an employee with discharge of the
unit employees if they selected the Union as their col-
lective-bargaining representative.
2. Threatening an employee with reclassification of
jobs of unit employees with a consequent reduction in
wage scales if the unit employees selected the Union as
their collective-bargaining representative.
3. Threatening an employee that the unit employees
would be required to become members of the Union if
they selected the Union as their collective-bargaining
representative.
4. Threatening employees with cancellation of exist-
ing fringe benefits if they selected the Union as their
collective-bargaining representative.
5. Promising and granting wage increases to em-
ployees to discourage their support of the Union.
The Cor(paln denied its representatives made the al-
leged threats, denied one of the persons alleged to have
threatened employees with cancellation of existing fringe
benefits was its agent, and contended the promised and
granted wage increases were granted in accordance with
policy and procedures established prior to commencement
of the Union's organizational campaign and therefore were
not violative of the Act.
The issues before me are whether the alleged threats were
made, whether one of the alleged threats was made by an
agent of the Company and whether the alleged threats and
promises. if made. and the wage increases were violative of
the Act. An added issue is whether or not a bargaining
order is warranted.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine and
cross-examine witnesses, argue, and file briefs. Briefs have
been received from the General Counsel and the Company.
Based upon my review of the entire record,' observation
of the witnesses, perusal of the briefs, and research. I enter
the following:
FINDINGS OF FACT
I. Jt!RISDI('I'I()N AND I ABOR )R(;ANIZAI()ON
The complaint alleged, the answer admitted, and I find
that the Company, a California corporation, was engaged
Read 1977 after all further date references omitting the year.
2 The complaint was hased upon charges and amended charges filed by the
Union on July 21 and 26 and September 14.
Hereafter called the Union.
'Hereafter called the Company.
Errors in the Iranscript have been noted and corrected.
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at times pertinent in the sale and installation of automotive
parts at various locations in California and two locations in
Nevada, namely, Sparks and Carson City; that during the
calendar year 1976 it received gross revenues in excess of
$500,000 and purchased goods valued in excess of $5,000
from suppliers located outside the State of California; and
that, on the basis of the foregoing, the Company at times
pertinent was an employer engaged in commerce in a busi-
ness affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The complaint also alleged, the an-
swer admitted, and I find that at times pertinent the Union
was a labor organization within the meaning of Section 2(5)
of the Act.
II. IHF AI.I.EGFD UNFAIR L.ABOR PRACTICES AND ELE( I()ON
MISC ONDUCT
A. Background
Prior to 1976, the Company's operations were limited to
California: i.e., it operated 68 facilities within the State of
California. In 1976, it opened its first two facilities outside
of California, one at Sparks, Nevada, and the second at
Carson City, Nevada. The former facility opened for busi-
ness on July, 1976, and the latter on October 1, 1976.
Interviews were conducted and personnel hired to man
the Sparks facility during April, May and June, 1976; per-
sonnel were interviewed and hired at Carson City in August
and September 1976 (some personnel were also transferred
from Sparks to Carson City).
The Company established a starting pay scale for full-
time sales/installation personnel at both locations of $3 per
hour, with automatic progression each 3 months thereafter
to a top rate of $4 after 9 months and a starting pay scale
for mechanics of $4.23 per hour, with automatic progres-
sion each 6 months thereafter to a top rate of $6.50 after 2-
1/2 years.6 Regular part-time employees in the former cate-
gory were placed on the same pay scales, but with progres-
sion at 6-month intervals in the case of the former and 1-
year intervals for the latter of top rates after 1-1/2 and 5
years, respectively. Several of the new hires in the sales-
installation category were informed at hire that there would
be a review and evaluation of their performance I year
after their hire (when they would have been at the top rate
for a 3-month period) and a possible merit increase at that
time.7 In the internal memorandum addressed to the Com-
pany's vice president for administration (Richard Halliday)
by the then corporate director of personnel (Fred Misa-
kian), setting forth the wage scales, Misakian stated the
scales were designed to secure qualified employees at com-
petitive labor overhead costs and establish wage levels cal-
culated to "afford the company the best possible chance of
operating a non-union establishment."'
B. The Initial Employee Contact With the Union
In late 1976, the Nevada employees began to discuss the
possibility of securing union representation to improve their
6 A number of employees with prior experience, however, were hired at
step rates above the starting rate.
' Company President Merle Krantzman made a statement to that effect to
a group of Carson City employees just before that store opened.
I The Company's employees at its California facilities were almost com-
pletely union-represented.
wages, etc. Sparks employee Arthur Murchland contacted a
representative of the Union (Doris Lowe) to learn what
wages and benefits the Sparks and Carson City employees
might expect the Union to secure for them and how to go
about securing union representation: Lowe advised Murch-
land in both areas, and he. in turn, passed on Lowe's advice
to other employees.
By January or February 1977, a sufficient number of the
Nevada employees has expressed interest in union represen-
tation to warrant setting up a meeting with a union repre-
sentative. When Murchland contacted the Union to ar-
range for a meeting between Lowe and the Company's
Nevada employees, however, he was informed Lowe was
away from the area on an assignment and was not expected
back in the area for some time.
C. The Alleged April Threat
On or about April 18, Carson City employee David Pe-
terson approached Carson City Manager Hank Teague to
inquire about a wage increase: when Teague responded
there wasn't any money available for a wage increase, Pe-
terson stated the employees might get better wages if they
organized and went union. Teague replied that the employ-
ees would be unwise to do that; if company headquarters
learned the employees were seeking union representation,
they would fire and replace the whole crew.!
D. The Continued Denial of Requests for Wage Increases
During the same period (April and May 1977), Murch-
land asked Sparks Manager Don Rick about a wage in-
crease (Murchland reached the top of the rate range for his
classification in March). After telephoning Oakland head-
quarters of the Company, Rick advised Murchland he had
discussed the subject of wage increases for the Nevada em-
ployees at the top of their rate ranges with the Oakland
office and had been informed there were not going to be
any' raises for such employees. Carson City employee
Claude Minor's request in this same period for a wage in-
crease drew similar response: when Minor asked Teague for
a wage increase, Teague replied Minor was at the top rate
for his job (mechanic) and no increase was possible. When
Minor protested he had been promised an $8.50 per hour
rate when he was hired, Teague referred him to Eugene
Coleman, supervisor of the mechanical department; when
Minor telephoned Coleman and stated his position, Cole-
man replied Minor was a liar, no Nevada mechanic was
entitled to more than $6.50 per hour, the top mechanic rate,
and that was all Minor or any other Nevada mechanic was
going to get. Sparks employee Robert Stockton's request
during this period for a raise drew the reply from Teague
that Stockton was at the top rate for his job and no increase
would be forthcoming.10
9 Peterson's testimony to this effect is credited; he was a direct and forth-
right witness; his testimony was corroborated by Sparks employee Wesley
Ross and was not denied by Teague.
0' The testimony of Murchland, Minor, and Stockton was uncontradicted
and is credited.
1026
GRAND AUTO. INC.
E. The Ulnion Attainment o/ Majority Representative Sttlts
On May 12, Lowe, who had returned to the area. met
with a group of the Sparks employees. She explained the
Union's policies, programs. and procedures, answered ques-
tions, and solicited the signatures of the employees in at-
tendance to union membership applications."
Fourteen of the 16 sales-installation-mechanical person-
nel employed at the Company's Sparks installation signed
the proffered membership applications. In a meeting con-
ducted by Lowe the following day at Carson City. 5 of the
17 sales-installation-mechanical personnel employed at the
Company's Carson City installation signed membership ap-
plications. Between May 13 and June I. Lowe solicited and
secured 9 additional signed membership applications from
Carson City sales-installation-mechanical personnel, for a
total of 14 such applications among the Carson City em-
ployees and a grand total of 28 applications out of total
work force of 33 sales-installation-mechanical employees at
the 2 locations.
F. The Request brr Recognition and Petition
On the basis of the 19 applications LIowe had previously
secured from the Sparks and Carson City sales. installation.
and mechanical employees, on May 13. the Union ad-
dressed a letter to Company President Merle Krantzman at
the Company's Oakland. California. headquarters wherein
the Union notified Krantzman that the Union represented a
majority of the Company's selling and nonselling employ-
ees at Sparks and Carson City, excluding guards and super-
visors; offered to submit proof of its majority representative
status within the unit to a neutral person: and requested
recognition and bargaining over a contract covering the
rates of pay, wages, hours, and working conditions of the
Company's employees within the unit.
On May 16, the Union filed a petition with the Regional
Office for certification as the exclusive collective-bargaining
representative of the Company's selling and nonselling em-
ployees at its Sparks and Carson City stores, excluding
guards and supervisors as defined in the Act.
G. The Alleged Maq Threat
On or about May 20, Peterson and Teague had another
conversation concerning Union representation: in the
course of the discussion, Teague produced a copy of a con-
tract between the Company and Machinists Lodge 1546
covering mechanical and related personnel employed by
the Company in northern California and stated sarcasti-
cally he would welcome Union contract coverage of the
Sparks employees under terms of that contract, since the
trainee wage rates specified therein would permit the Com-
pany to lower the wages of its trainees."
A The applications, inter alia. authorized the Union to act as the signatorv
employees' representative for the purpose of bargaining collectively with the
Company on their behalf concerning their wages, hours, and working condi-
tions.
12 Peterson was training fobr service manager at that time or had completed
such training a short time before.
H. The Company Refiusal To Recognie lthe L'nion and
Election Agreement
On June 1. the Company formally declined to recognize
the Union unless and until it was certified as the exclusive
representative of an appropriate unit of the Company's
Sparks and Carson City employees.
On June 9, the Company and the Union executed a
Stipulation for Certification Upon Consent Election within
a unit consisting of all selling and nonselling employees em-
ployed by the Company at its Carson City and Sparks, Ne-
vada. locations, excluding guards and supervisors as de-
fined in the Act. By that time 28 of the 35 employees within
the stipulated unit had signed and submitted to the Union
signed membership applications. An election was scheduled
for July 18.
1. The Alleged June 27 Threats and Promise
On June 27, George Tansill, who had replaced Misakian
as corporate director of personnel." conducted separate
meetings of the unit employees at the Sparks and ('arson
Cits facilities of the Company. In the course of those meet-
ings. Tansill outlined and praised the fringe benefits pro-
vided by the Company. particularly the benefits provided
under the Company's noncontributory hospital and surgical
plan, and stated that the plan was the same one provided
the top executives of the Company. the benefits were supe-
rior to those provided under the Union's area contracts.
there was going to be a wage increase in July.'4 if the em-
ployees designated the Union as their collective-bargaining
representative at the July 18 election all the Union could do
was to seek a contract, and negotiations would start from
zero, and the Union was weak and could not do much for
the employees. In response to inquiries concerning whether
they would still be covered by the company hospital and
surgical plan if the Union was designated as their represent-
ative. Tansill replied that the Company plan would cease or
terminate when the Union came in and negotiated its
plan."
Tansill also stated that while, in his judgment, an agency
,3 I find that at times pertinent Company President Krantzman, Vice Pres-
ident for Aministration Halliday, Corporate Directors of Personnel Misakian
and Tansill, Mechanical Supervisor Coleman, and Managers Teague and
Rick were supervisors and agents of the Company acting on its behalf within
the meaning of the Act
t4 This was the first time any unit employees were informed that a wage
increase was in the offing (pnor to June 28, employees who requested wage
increases were told no increases were contemplated; see findings abose)
While the Sparks and Carson City managers (Rick and Teague) urged corpo-
rate headquarters earlier in the year to authonze wage increases exceeding
the top of the existing wage scales, it is apparent the top corporate manage-
ment of the Company did not authonze such grant until it became aware of
the Union's organizational campaign and the employees' major source of
dissatisfaction -their wage rates.
5 A number of employees testified Tansill stated the Company plan would
terminate on the Union's selection as their bargaining representative. and
others (as well as Tansill) testified he stated the company plan would termu-
nate on the Union's selection as their bargaining representative and negotia-
tion of an agreement containing Ihe union plan, I find it more reasonable that
Tansill, an experienced labor relations representative. made the latter state-
ment but that the full text of his remarks did not register with some of the
employees.
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop was illegal in Nevada,'6 if it was negotiated into a
contract between the Company and the Union all the unit
employees would be required to join (or make payments to)
the Union (Peterson's testimony to this effect was uncontra-
dicted and is credited).
J. The Alleged July 6 Threats
Tansill subsequently asked James Seggern, a representa-
tive of the insurance brokerage firm (Frank B. Hall Com-
pany) which handled the Company's insurance, to visit
Sparks and Carson City and address the unit employees
concerning the insurance benefits provided to the employ-
ees by the Company.
On July 6, Seggern conducted separate meetings of the
unit employees at Sparks and Carson City, described the
benefits provided under the company plan, and stated they
were of superior quality, certainly superior to those pro-
vided in the Union's area contracts. Seggern repeated Tan-
sill's observation that company benefits would cease or ter-
minate if the employees selected the Union as their
representative on union negotiation of its plan.'
K. The July 13 and 16 Promises
On July 13, Company President Krantzman sent a letter
to each unit employee reiterating Tansill's comments that
the Union was weak and could not win a strike: that while
the Union could make all kinds of promises, all it could
really do was to sit down with the Company and attempt to
negotiate a contract; that the existing company health and
welfare plan was far superior to the Union plan and was
provided at no cost to the employees; that a substantial
wage increase would soon be granted; and that the com-
pany record demonstrated it provided wages and fringe
benefits equal to those provided by its competitors in the
area.
On July 16, Tansill reappeared at Sparks and Carson
City to announce all unit employees would receive an 8-
percent wage increase retroactive to July 1, a 4-percent
wage increase effective January 1, 1978, a review and an-
other wage adjustment on July 1, 1978, the addition of two
additional steps at the top of the sales/installer wage scale
providing further increases at 6-month intervals (for a range
of $3.24-$4.66, effective July I) and a 2-year progression,
plus the addition of two steps at the top of the mechanic
wage scale providing increases at 6-month intervals (for a
range of $4.56-$7.59) and a 3-1/2-year progression.'s
'6 Nevada law prohibits any employer and union within the State to enter
into an agreement conditioning employment on membership in or payments
to that union.
7 Again a number of employees testified Seggern stated the company plan
would cease or terminate on the Union's selection as their representative,
and others testified he stated the company plan would cease or terminate on
the Union's selection and negotiations of an agreement containing the union
plan; for the reasons set out in fn. 15, 1 find that Seggern made the latter
statement but that a number of the employees interpreted his remarks to
mean the company plan would terminate on their selection of the Union as
their representative.
1i Regular part-time sales/installation and mechanical personnel received
the same amount of increase on July 1 and January I, 1978, as the full-time
personnel in those categones and continued to advance automatically each 6
months within the rate ranges for their occupations. Two additional steps
were also added to their progression schedule, extending such progression in
the case of sales/installation part-timers over 2-1/2 years and in that of
mechanics over 3-1/2 years.
L. The Wage Increases
Both the July I and January I increases were imple-
mented by the Company.
M. The Election
On July 18, there were 34 employees within the stipu-
lated unit;'" 28 cast ballots; 14 cast ballots for the Union
and 14 cast ballots against it.
N. Analysis and Conclusions
1. The unit and the Union's representative status therein
On the basis of the parties' June 9 stipulation to an elec-
tion within a unit consisting of all the Company's selling
and nonselling employees employed at its Carson City and
Sparks, Nevada, locations, excluding guards and supervi-
sors as defined in the Act, I find and conclude such unit at
times pertinent was appropriate for collective-bargaining
purposes within the meaning of Section 9 of the Act.
Inasmuch as 19 employees within the unit just specified
authorized the Union to represent them for the purpose of
bargaining collectively with the Company concerning the
wages, hours, and working conditions of the 33 employees
within that unit prior to the Union's May 13 request that
the Company recognize and bargain with the Union con-
cerning the wages, etc., of those unit employees, and inas-
much as by June 1, 28 of the employees within the unit had
authorized the Union to represent them for the purposes of
bargaining collectively with the Company concerning their
wages, etc., I find that since May 13 the Union has repre-
sented a majority of the Company's employees within the
unit.
2. The alleged April threat
I find and conclude that by Teague's April 18 statement
to Peterson that the Company would fire and replace the
whole crew if its top management learned the employees
were seeking union representation the Company threatened
an employee with the discharge of the entire work force if
they sought and secured union representation and thereby
violated Section 8(a)(1) of the Act and interfered with em-
ployee free choice in the election.
3. The alleged May threat
I find and conclude that Teague's May 20 statement he
would welcome union representation of the employees since
it would enable the Company to lower the current rates
paid to trainees if the trainee rates contained in a current
Company-IAM contract were to be agreed upon by the
Union and the Company as the trainee rates covering the
Nevada trainees neither abstractly nor concretely by Peter-
son can be or was considered a threat to reduce trainee
wages. I therefore find and conclude the evidence is insuffi-
"1 The employment of two unit employees terminated in early July; three
of four unit employees hired in June were still employed on July 18. Of the
34 employees within the unit on July 18. 26 executed union membership
applications between May 12 and June I
1028
GRAND AUTO. INC
cient to support a finding the Company by Teague's May
20 statement violated the Act or interfered with the election
and will recommend those portions of the complaint and
election objections so alleging be dismissed.
4. The alleged June 27 threats and promise
Since I have entered findings that Tansill stated on June
27 the Company's health and welfare plan would cease or
terminate when the Union came in and the Company and
the Union agreed to substitute its plan for the company
plan and that employee belief he said the company plan
would cease or terminate if they selected the Union as their
representative was based upon their interpretation of that
statement, I find and conclude Tansill's June 27 statement
did not violate the Act or prevent a fair election and shall
recommend that those portions of the complaint and elec-
tion objections so alleging be dismissed.
I also find Tansill's June 27 comment the employees
would be required to join or pay dues to the Union in the
event the Union won the election and the Union and the
Company agreed to insert an agency shop provision in a
subsequent agreement between them neither violated the
Act nor interfered with a free and fair election, inasmuch as
Tansill also stated such an agreement was unlawful in Ne-
vada and was simply explaining the effect of such an agree-
ment in States which permitted it. I therefore shall recom-
mend those portions of the complaint and election
objections alleging such comment violated the Act and in-
terfered with a free and fair election be dismissed.
I find, however, by Tansill's June 27 promise of a wage
increase effective July I, the Company violated Section
8(a)(1) of the Act and prevented a free and fair election.
It is clear the Nevada employees' major grievance and
reason for seeking representation by the Union stemmed
from their belief that their wages were inadequate and local
management's advice that no adjustments could be ex-
pected. Tansill and Krantzman were well aware of this
when, with an election scheduled in the near future, they
promised the employees a retroactive wage adjustment. A
more effective means for discouraging continued employee
support of the Union would be difficult to visualize.
5. The alleged July 6 threat and agency question
On the basis of my findings that Seggern's July 6 ad-
dresses to unit employees concerning the health and welfare
benefits purchased by the Company through his firm for
their benefit was authorized and caused by the Company in
an obvious bid to play up the alleged superiority of the
benefits under the company plan over those provided in the
plan contained in contracts between the Union and other
employers in the area and to generate fear among unit em-
ployees that those benefits would be lost if they voted for
the Union in the election scheduled 12 days later, I find and
conclude Seggern was an agent of the Company acting on
its behalf when he addressed the unit employees on July 6.
1 find, however, that Seggern's July 6 remarks to the unit
employees neither violated the Act nor interfered with the
election; while his comments were interpreted by listening
unit employees to mean their voting the Union in would
mean loss of the company plan, I find Seggern stayed
within legal bounds by stating the company plan would
cease or terminate when the Union was voted in and its
plan was negotiated. I therefore shall recommend those
portions of the complaint and election objections alleging
Seggern's comments violated the Act and interfered with
the election be dismissed.
6. The alleged July 13 and 16 promises of wage increases
and grant thereof
For the reasons set out in section II, N, 4. above, I find
that by Krantzman's July 13 and Tansill's July 16 promises,
just 5 and 2 days before the July 18 election, of substantial
wage increases retroactive to July I (plus later increases and
other upward adjustments) and the effectuation thereof the
Company violated Section 8(a)(1) and prevented a free and
fair election.
CONL t SIONS OF LAWV
1. At times pertinent the Company was an employer en-
gaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning of
Section 2(2), (5). (6). and (7) of the Act.
2. At times pertinent Krantzman. Halliday, Misakian,
Tansill, Coleman, Teague, and Rick were supervisors and
agents of the Company acting on its behalf, and Seggern
was an agent of the Company acting on its behalf, within
the meaning of the Act.
3. A unit consisting of all the Company's selling and
nonselling employees employed at its Sparks and Carson
City, Nevada, locations, excluding guards and supervisors
as defined in the Act, is an appropriate unit for collective-
bargaining purposes within the meaning of Section 9 of the
Act.
4. Since May 13, the Union has represented a majority
of the Company's employees within the unit just specified.
5. The Company violated Section 8(a)(1) of the Act and
prevented a free and fair election by its April 18 threat to
discharge unit employees if they sought union representa-
tion.
6. The Company violated Section 8(a)(1) of the Act and
prevented a free and fair election by its June 27. July 13,
and July 16 promises of wage increases and adjustments of
its wage scales and by its July I and January 1, 1978, wage
increases and adjustments.
7. The Company did not otherwise violate the Act or
prevent a free and fair election.
8. The aforesaid unfair labor practices and election inter-
ference affected commerce as defined in the Act.
THE REMEDY
Having found the Company engaged in unfair labor
practices, I shall recommend the Company be directed to
cease and desist from such practices and to take affirmative
action designed to effectuate the purposes of the Act.
Having found that by such unfair labor practices the
Company prevented a free and fair election. I shall recom-
mend the election be set aside and the Company directed to
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize the Union and bargain with the Union as the
exclusive representative of the unit employees concerning
their rates of pay, wages, hours, and working conditions.20
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I recommend the issuance of the following:
ORDER2
The Respondent, Grand Auto, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge for seeking
union representation.
(b) Promising and granting its employees wage increases
and other wage adjustments to discourage their support of
Retail Clerks Union Local 1434, Retail Clerks International
Association, AFL-CIO.
(c) Otherwise interfering in its employees' exercise of
their rights to form, join, or assist the above labor organiza-
tion, to bargain collectively through the above labor organi-
zation, or to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protec-
tion.
20 I find the promise and grant of a substantial wage increase, the primary
grievance of the unit employees, immediately prior to the election a suffi-
ciently substantive prevention of a free and fair election to warrant a bar-
gaining order.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the following action designed to effectuate the
purposes of the Act:
(a) Recognize and, at its request, bargain with the afore-
named Union concerning the rates of pay, wages, hours,
and working conditions of:
All of the Company's selling and nonselling employees
employed at its Sparks and Carson City, Nevada, loca-
tions, excluding guards and supervisors as defined in
the Act.
(b) Post at its places of business at Sparks and Carson
City, Nevada, copies of the attached notice marked "Ap-
pendix." 22 Copies of that notice, on forms provided by the
Regional Director for Region 32, shall be signed by an au-
thorized representative of the Company and posted imme-
diately upon their receipt and maintained for 60 consecu-
tive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to insure
the notices are not altered, defaced, or covered by other
material.
(c) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
the Company has taken to comply with the Order.
The election conducted on July 18, 1977, is set aside, and
the petition filed by the aforementioned Union in Case 32--
RC 45 is dismissed.
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1030