Graneto-Datsun

National Labor Relations Board - Board Decisions

May 14, 1973

203 N.L.R.B. 550 (N.L.R.B. 1973)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graneto-Datsun , a Graneto Company and District No.
9, International Association of Machinists and Aero-
space Workers , AFL-CIO, and Automotive, Petro-
leum and Allied Industries Employees Union Local
618, Teamsters, Jointly and Jack T. Scott, and Auto-
motive, Petroleum and Allied Industries Employees
Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Cases 14-CA-6736,
14-CA-6740, and 14-CA-6742
May 14, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On December 5, 1972, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith.
While we agree that a bargaining order should is-
sue, we disagree with the Administrative Law Judge
with respect to the appropriateness of the units re-
quested by the Unions . We are unwilling to fragment
an automotive service department into the two units
the Administrative Law Judge found to be appropri-
ate, but shall adhere to our established practice of
finding all employees of an automotive service depart-
ment to be a single appropriate unit .2
'Respondent has excepted to certain credibility findings made by the
Administrative 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 were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C .A. 3). We have carefully examined the record and find
no basis for reversing his findings.
The General Counsel excepts to the Administrative Law Judge 's failure to
find that statements made by Respondent 's service manager and supervisor,
Tom Scott, to Respondent's employees at a meeting conducted on March 2,
1972, violated Sec. 8(a)(l) of the Act . The Administrative Law Judge made
all necessary subsidiary findings based on uncontroverted evidence, but he
inadvertently failed to find that such conduct violated Sec. 8 (axl). We there-
fore find that such conduct violated Sec. 8 (a)(l) of the Act . However, we see
no need to modify the recommended Order or notice in this respect , as such
finding is only cumulative in nature.
We do not reach the question of whether Respon-
dent violated Section 8(a)(5) of the Act, for there has
been no demand for recognition in this appropriate
unit.
We agree, however, with the Administrative Law
Judge's findings that Respondent committed exten-
sive and flagrant violations of Section 8(a)(1) and (3)
of the Act. Thus, during the Unions' campaigns, in
addition to numerous incidents violative of Section
8(a)(1) of the Act which involved individual employ-
ees, Respondent also held several meetings with its
service department employees at which threats were
made, inter alia, to close the shop and discharge all the
employees if the Unions came in, and promises of
increased wages and benefits were made if the em-
ployees would forego the Unions. Later, all the service
shop employees were discharged for striking; and,
after their reinstatement, two of them were discharged
again, under pretextual circumstances, because of
their roles of bringing in the Unions.
We conclude that, in the above setting of pervasive
and egregious unfair labor practices with their far-
reaching coercive impact, a free choice could not be
exercised by the employees in an election. We shall
therefore issue a bargaining order here to remedy the
extensive and flagrant violations of Section 8(a)(1)
and (3)?
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
Order of the Administrative Law Judge, as herein
modified, and hereby orders that Respondent, Grane-
to-Datsun, a Graneto Company, Manchester, Mis-
souri, its officers, agents, successors , and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order, as so modified:
1. Delete paragraph 1(d) of the Administrative
Law Judge's recommended Order.
2. Substitute the following for paragraph 2(c) of the
Administrative Law Judge's recommended Order:
"(c) Upon request, bargain collectively with Dis-
trict No. 9, International Association of Machinists
2 See W. R Shadoff, 154 NLRB 992; Austin Ford, Inc., 136 NLRB 1398:
Mid Missouri Motors, 194 NLRB 505, 509.
The actions of the Unions indicate their cognizance of this practice and
that the appropriate unit herein is one which includes all service department
employees . Thus, on March 9 the Unions petitioned for an election, request-
ing that they be certified as the joint representative of a unit described as "All
Service Department employees." We also note that the original charge in this
case was filed by both Unions , jointly, alleging that Respondent refused to
bargain with them in a unit of "all service department employees."
7 As both Unions , by actions noted in fn. 2, supra, have indicated their
willingness to jointly represent the emplyees in the unit which we find appro-
pnate, we shall order Respondent to bargain with both Unions as the joint
representative of its employees in the unit found appropriate.
203 NLRB No. 90
GRANETO-DATSUN
and Aerospace Workers, AFL-CIO, and Automotive,
Petroleum and Allied Industries Employees Union,
Local 618 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , jointly, as the exclusive representative
of Respondent's employees in the appropriate unit
with respect to rates of pay, wages , hours of employ-
ment, and other terms and conditions of employment,
and, if an understanding is reached with said joint
representative , embody such understanding in a
signed agreement." '
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question any of our employees
about their union activities or membership or
their attitude toward District No. 9, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, and/or Automotive, Petroleum
and Allied Industries Employees Union, Local
618 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT make threats, including threats
to close our service department, in the event that
any union is successful in organizing our employ-
ees.
WE WILL NOT make any threats of bodily harm
to any of our employees in reprisal for their
union activities.
WE WILL NOT make promises to our employ-
ees of better wages, working conditions, and oth-
er conditions of employment in order to induce
them to disaffiliate or disassociate themselves
from any labor organization. Nor will we grant
our employees any benefits for that purpose.
WE WILL NOT give our employees the impres-
sion that we are spying on their activities with
regard to any union or any effort on their part to
participate in concerted or protected activities.
WE WILL NOT discharge any of our employees
or withhold paychecks to discourage member-
ship in any labor organization or for the purpose
of reprisal against our employees for any union
or concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
551
exercise of their right to form, join, or assist or be
represented by District No. 9, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, and/or Automotive, Petroleum and
Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor orgaini-
zation, to bargain collectively through represen-
tatives of their own choosing, or engage in other
concerted activity for the purpose of collective
bargaining or other mutual aid or protection or
to refrain from any or all such activity.
WE WILL offer to Franklin Cupples and Gary
Emas immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and WE WILL make each of the
foregoing employees whole for any loss of earn-
ings that he may have suffered as a result of our
discrimination against him.
WE WILL, upon request, bargain collectively
with District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO,
and Automotive, Petroleum, and Allied Indus-
tries Employees Union, Local 618, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America,
jointly, as the exclusive representative of our em-
ployees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and
if an understanding is reached, embody such un-
derstanding in a signed agreement. The appropri-
ate unit is:
All automobile and truck mechanics and ma-
chinists, parts men, lubrication men, porters,
and truck drivers, excluding salesmen , office
clerical and professional employees, guards
and supervisors as defined in the Act.
All our employees are free to become or remain or
refrain from becoming or remaining members of the
Machinists or the Teamsters, as the case may be, or
any other labor organization, except to the extent that
this right may be affected by an agreement in con-
formity with Section 8(a)(3) of the National Labor
Relations Act, as amended.
GRANETO-DATSUN, A
GRANETO COMPANY
(Employer)
Dated By
(Representative) (Title)
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be-defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 210 North 12th Boulevard , Room 448,
St. Louis, Missouri 63101 , Telephone 314-622-4167.
DECISION
STATEMENT OF THE CASE
MORTON D . FRIEDMAN , Adminstrative Law Judge: Upon
a charge filed in Case 14-CA-6736 on March 9 , 1972, by
District No . 9, International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter called the Ma-
chinists or District 9, and Automotive , Petroleum and Al-
lied Industries Employees Union , Local • 618, Teamsters,
herein referred to as the Teamsters, and an amended charge
in Case 14-CA-6736 filed on April 7, 1972, and a charged
filed on March 14, 1972, in Case 14-CA-6740 by Jack T.
Scott, an individual, and a charge filed on March 14, 1972,
in Case 14-CA-6742 by the Teamsters , the Regional Direc-
tor for Region 14 of the National Labor Relations Board,
herein called the Board, issued a consolidated complaint on
April 19, 1972, on behalf of the General Counsel of the
Board against Graneto-Datsun, a Graneto Company, here-
in called Graneto or the Respondent , alleging violations of
Section 8(a)(l), (31 and (5) of the National Labor Relations
Act, as amended (29 U.S .C. Sec. 151, et seq.), herein called
the Act. In its duly filed answer , the Respondent, while
admitting certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice a hearing in this case was held at St.
Louis, Missouri, on various dates between May 22, 1972,
and June 6 , 1972. All parties were represented and were
afforded full opportunity to be heard, to introduce relevent
evidence, to present oral argument , and to file briefs. Oral
agrument was waived . Briefs were filed by Counsel for the
General Counsel and the Respondent . Upon consideration
of the entire record herein , and upon my observation of
each witness as he appeared before me , I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation which is en-
gaged in the City of Manchester , Missouri , in the retail sale
of new and used automobiles , automobile parts, and service,
derived during the calendar year ending December 31, 1971,
gross revenues in excess of $500,000 from the retail sale of
new and used automobiles , automobile parts, and service.
Additionally during the said calendar year , which period is
representative of its operations , Respondent purchased and
caused to be transported and delivered to its place of busi-
ness in Manchester, Missouri , directly from points located
outside the State of Missouri automobiles and automobile
parts valued in excess of $50,000.
It is admitted , and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that the Teamsters is a labor
organization within the meaning of Section 2(5) of the Act.
The Respondent denies that District 9 of the Machinists
is a labor orgainization. The record reveals I that District 9
organizes employees within the jurisdiction of the Machin-
ists in the State of Missouri, negotiates contracts , and han-
dles grievances. District 9 has subordinate local lodges, and
is, in reality , the service organization for the members be-
longing to the various local lodges which make up the dis-
trict. The representatives of District 9 are selected in
elections participated in by referendum by all members of
the various lodges within the district's jurisdictional area.
These representatives handle matters that pertain to those
lodges within the jurisdictional area of the District 9.
Additionally, introduced into evidence is a current collec-
tive-bargaining agreement between District 9 and The
Greater St. Louis Automobile Association, Inc., and the St.
Claire-Madison Automobile Association, Inc., which sets
forth the terms and working conditions of members of the
various constituent lodges of Local 9 employed by the two
automobile dealers associations.
Accordingly, on the basis of the foregoing and upon pre-
cedent 2 I find and conclude that District 9 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
As noted above, the Respondent is an automobile dealer-
ship which maintains a service department for its customers.
The service department employees were unorganized until
some time in February 1972 when the Machinists and the
Teamsters began an organizational drive among them. The
details of this organizational drive and the events which
followed are more fully set forth hereinafter. Thereafter the
Machinists and the Teamsters made written requests for
recognition and bargaining in separate units within the ser-
vice department upon the Respondent. The Respondent
ignored these requests. It was during this period of time that
the actions complained of and which form the basis for the
complaint herein were taken by supervisors of the Respon-
dent. Thereafter, the Respondent's service department em-
ployees went on strike and the charges herein were filed.
The complaint, in substance, alleges various acts of inter-
ference, coercion , and restraint consisting in the main of
threats of reprisal against the employees and promises of
benefit to destroy the Union's majority. It also alleges that
1 The testimony of James W. Redman , Marvin E Timmerberg , and For-
rest W. Brandon All of which testimony was uncontroverted on the record.
2 District No 9, International Association of Machinists, AFL-CIO (Greater
St Louis Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB
1354.
GRANETO-DATSUN
the Respondent unlawfully discharged the striking employ-
ees and refused to pay them for work performed during the
week immediately preceding the strike , in violation of Sec-
tion 8(a)(3) of the Act. The complaint further alleges that
the Respondent unlawfully refused to bargain with the two
Unions in their respective units in violation of Section
8(a)(5) and (1) of the Act.
The Respondent's answer denies the commission of any
unfair labor practice and affirmatively alleges that the de-
mands of the two Unions were defective in that they re-
quested overlapping classifications in the units claimed to
be appropriate for the purpose of collective -bargaining. Ad-
ditionally, the Respondent denies that the employees were
engaging in a concerted work stoppage and strike inasmuch
"as the conflicting demands for recognition asserted by the
two Unions constitutes a jurisdictional dispute between the
two involved Unions which has no relevency to the
Respondent's employment practices or to Respondent's
obligations under the Act." Furthermore, in an amendment
to its answer , which amendment was filed during the hear-
ing herein, the Respondent denies that Tom Scott , the ser-
vice manager, whom the complaint alleges committed a
number of the acts of interference , coercion , and restraint,
possessed the authority to speak for the Respondent, al-
though the complaint admits Scott was a supervisor.
Thus the issues framed by the pleadings and the conten-
tions of the parties are:
1. Did admitted Supervisor Tom Scott have the authority
to speak for the Respondent so as to make his acts imputa-
ble to the Respondent?
2. Did Scott and other supervisors of the Respondent
commit the various acts constituting interference , coercion,
and restraint as alleged in the complaint?
3. Did the two Unions involved make demands for rec-
ognition upon the Respondent which were cognizable under
the Act?
4. Do the two Unions represent the majority of the em-
ployees in the separate units claimed to be appropriate?
5. Did the Respondent unlawfully discharge the service
department employees who went on strike and did the Re-
spondent unlawfully withhold earned wages in reprisal for
the employees' union activity?
6. Do the actions of the Respondent , in totality , consti-
tute sufficient basis for a bargaining order?
B. Interference, Coercion, and Restraint
At the outset, it should be noted that with regard to the
alleged acts of interference , coercion , and restraint, the tes-
timony of the various employees involved and who were
presented as witnesses by the General Counsel remained
unrefuted by the Respondent except in one instance. The
Respondent offered the testimony of only a single witness,
its sales manager , Jack M . Smith , who was involved in only
one alleged act of interference . Tom Scott , Respondent's
service manager , who had been discharged by the Respon-
dent shortly before the hearing herein , was not called by the
Respondent nor was Joseph Graneto, the Respondent's
vice president and general manager who was also involved
in two instances of alleged interference. Although some of
the witnesses who testified as to the alleged act were not
553
accurate in their testimony with regard to dates of events,
a careful search of the record reveals no profound inconsis-
tencies between their testimony on direct examination and
their testimony under lengthy cross-examination which
would warrant a discrediting of their direct testimony.
Moreover, from my observation of these witnesses I re-
ceived the impression that they were reliable witnesses. Ad-
ditionally , in many instances several of the witnesses were
parties to the same events and their versions of what oc-
curred did not differ markedly. Accordingly, inasmuch as
their testimony is unrefuted except in one instance , I credit
such testimony.
As hereinbefore stated, Tom Scott was the Respondent's
service manager in charge of the service department. He was
an admitted supervisor . The Respondent , in its amended
answer, denies that Scott had authority to speak for the
Respondent and contends that any act committed by Tom
Scott or any statement made by him to the employees of the
service department were made without the knowledge or
authority of the Respondent and that such acts and state-
ments cannot lawfully be imputed to the Respondent. The
testimony of Respondent's only witness , Jack M . Smith,
Respondent's sales manager, merely outlined the
Respondent's corporate organization. He testified, in sub-
stance, that Fred Graneto was the president and owner of
the Respondent and was the only one who could make
decisions as to the hiring of employees , the giving of wage
raises, and other administrative acts . Smith further testified
that Joseph Graneto was general manager of the Respon-
dent on a day-to-day basis and was generally in charge of
the Respondent's operations . Jack Smith was the sales man-
ager of both the new and used car sales of the Respondent.
In his testimony, Smith inferred that all three of the fore-
going were senior to Tom Scott 's operation of the service
department. However, although Smith testified that Scott
could not directly hire or discharge any employee, he did
admit that Scott supervised the service department employ-
ees in their work and directed their activities on behalf of
the Respondent. There is no testimony presented to show
that the men in the service department were ever told of any
limitations on Tom Scott's authority as a supervisor, nor
were they ever informed that Tom Scott could not speak
authoritatively for the Respondent.
From the foregoing, I find and conclude that although
Tom Scott might have been the lowest supervisor in the
Respondent 's hierarchy , the Respondent is answerable for
his actions and statements . The law is well settled , and it is
unnecessary here to recite the numerous cases in which the
Board and the courts have held, that employers are respon-
sible for the actions of supervisors and that such actions
may be imputed to the employer to the extent of finding the
employer in violation of the various sections of the Act.
The first incident involving Service Manager Tom Scott
occurred long before the Unions began their organizational
drives. Franklin D. Cupples, a mechanic, was hired on Sep-
tember 22, 1971. He was interviewed several days prior
thereto by Tom Scott. In this interview Scott asked Cupples
if the latter was a member of a union . Cupples replied that
he was, indeed, a member of the Machinists and that he held
a withdrawal card. Service Manager Scott then informed
Cupples that if the latter were hired and came into the
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's employ with the intent of joining a union or
bringing a union in to the shop , Cupples would be dis-
missed , and, moreover, anyone else who did so would also
be dismissed . In that interview Tom Scott also told Cupples
that Mr . Graneto (probably referring to Fred Graneto, pres-
ident and owner) would not have a union in the shop and
if need be he would close the place.
The inquiry of Cupples by Tom Scott as to whether Cup-
pies was a member of the Union and threats that Cupples
or anyone else who engaged in union activities would be
discharged and, furthermore , the inference that if Graneto
had to contend with the Union he would close the shop
constitute unlawful interrogation and threats in violation of
Section 8 (a)(1) of the Act . I so find.
Evidently , some time thereafter , Service Manager Tom
Scott became disenchanted with conditions at the
Respondent 's service department , especially with regard to
his own income . Approximately February 3 , 4, or 5, 1972,
Tom Scott engaged Cupples in a conversation . Scott asked
Cupples how the latter felt about Joining the Union and how
Cupples felt about the men joining the Union . Cupples
reminded the service manager that the latter had told Cup-
pies that Fred Graneto would not allow a union in the shop.
Then Scott said "the only way you are going to get anything
around here is either join together or join a union ." No one
else was present at that conversation.
Again , approximately on February 7 or 8, Service Man-
ager Scott engaged Cupples in a second conversation. Scott
again asked Cupples how the latter felt toward the men
joining a union. Cupples again reminded Scott that Scott
had told him that Fred Graneto would not have a union in
the shop . Cupples told Scott that the latter would have to
get all of the men to cooperate , otherwise there would be no
sense in trying to have a union . Scott replied that if Scott
would get all of the men together would Cupples be willing
to go along with it. Cupples answered in.the affirmative.
On February 14, Service Manager Scott again ap-
proached Cupples, and told the latter he had talked to the
men and that they all wanted a union . He asked Cupples if
the latter would make the necessary arrangements, for a
union meeting . Cupples asked Scott when the latter wanted
it done and Scott answered, "Right away , if possible." 'Cup-
pies thereupon called the Machinists from the shop, but the
representative to whom he wanted to speak was not there.
Cupples left his telephone number. Thereafter the union
representative called Cupples . Service Manager Scott an-
swered and called Cupples to the telephone. At that point
Cupples made arrangements for a Machinists representative
to meet with the employees on the next day.
Although Service Manager Scott 's motivation at that
point of time in interrogating employee Cupples on three
different occasion as to the latters union proclivities and
desires might well have been for the purpose of promoting
Scott 's personal interest and not that of his employer, the
Respondent , nevertheless , this interrogation constituted in-
quiry into an employee 's union activities and sympathies by
a representative of management and, accordingly , constitut-
ed interference with employees ' Section 7 rights. It was
therefore violative of Section 8(a)(1) of the Act.
Before Tom Scott instructed or asked Cupples to make
contact with the Machinists , he talked to various men in the
shop . One such conversation occurred on either February
12 or 13 , 1972, and was with Tom Scott 's brother Jack Scott,
a mechanic in the shop . Tom Scott asked Jack Scott the
latter's opinion of whether they should go union . Jack Scott
said that he did not necessarily want to go union , that he
would rather have some kind of organization without it, if
possible , but if that was the only way they could get what
they wanted that he would go union . Jack Scott told Tom
Scott that before he made up his mind one way or another
he wanted to see a union contract . Tom Scott answered,
"Well, let me know because I am supposed to let Frank
Cupples know whether you guys are interested or not so we
could call and have a representative come out and talk to
you."
In view of the fact that at the time in question , Tom Scott
was the apparent promoter of a union movement among the
employees in Respondent 's service department , and in view
of the fact that Tom and Jack Scott were brothers and
closely associated , I conclude that Service Manager Scott's
interrogation of his brother , although conducted for the
purpose of eliciting his brother 's opinion whether unioniza-
tion would be beneficial , lacked the coercive force that is
ordinarily associated with unlawful interrogation . Accord-
ingly , I find that this incident did not constitute such inter-
ference as would amount to a violation of Section 8(a)(1) of
the Act . Accordingly , I shall order dismissed subparagraph
C of paragraph 5 of the complaint herein which alleges this
interrogation to be unlawful.
The following day, February 15, most of the service de-
partment employees met at noon hour at a nearby restau-
rant with Marvin Timmerberg, a business representative of
the Machinists . The details of that meeting are set forth later
in this Decision . It is sufficient to note here , however, that
at this meeting Timmerberg explained the process of be-
coming a union member and the employees who attended
signed membership applications which designated the Ma-
chinists as their bargaining representative.
After the meeting with Timmerberg ended , the employees
returned to their work at Respondent 's service department.
Several employees were thereafter almost immediately en-
gaged in conversation by Service Manager Tom Scott. Thus,
Service Manager Scott asked his brother Jack if all the
employees had signed up to join the Machinists . Tom Scott,
who evidently had had a change of heart , then told Jack
Scott that they might be able to accomplish something with-
out the Union ; that he had been talking to Joe Graneto and
he was pretty sure that he had sold him on a percentage
agreement for the men . He said it had not been decided yet
how much the percentage would be but that it would be 25
or 50 percent. Jack Scott informed Tom Scott that the men
had signed applications for membership but that they would
not actually be members until they had paid their initiation
fees. Then Tom Scott wanted to know if there was going to
be a strike . Jack Scott informed his brother that there was
no talk of any strike at that time . Tom Scott suggested that
the men ought to try to find some other way of doing things
without the Union , because Fred Graneto would close the
doors before he would let a union in.
During that same afternoon of February 15, Service Man-
ager Scott conversed with Franklin Cupples. Scott -asked
Cupples what had happened at the meeting and what was
ORANETO-DATSUN
involved. He also asked Cupples what Tom Scott 's chances
of joining the Union as a working foreman were . Tom Scott
had indicated that he wanted to sign a card . Tom Scott
further asked Cupples what the chances were of getting a
union in and what Cupples thought personally. Cupples told
Tom Scott that the men had all held together so far and that
they would probably get the Union in and that Scott's
chances of coming in as a working foreman were good.
Stanley Pinski, an employee-mechanic who attended the
meeting, was also questioned that afternoon by Tom Scott.
The service manager asked Pinski what the men had dis-
cussed at the meeting with the Machinists representative.
Scott said that he would like to know what the Union of-
fered the men . Tom Scott further wanted to know what the
employees and the union representative did down there
beside talk . In connection with this Tom Scott asked Pinski
if the employees had signed union cards.
Pinski told Tom Scott , in answer to Scott's questioning,
that the men had all listened and asked questions and that
they thought the Union was a good idea; that thereafter
they took a vote and decided that they would go with the
Union . Thereafter, Pinski told Scott , the men signed cards.
Scott then stated that it was "kind of stupid" for the men
to have signed at that time and that they should have waited
and talked the matter over some more.
In the light of the threat to his brother to the effect that
Fred Graneto would close the doors before he would let a
union come in, and in light of his comment to Pinski that
the men were stupid to sign union cards at that time, it is
clear that the questioning by Service Manager Scott of Jack
Scott, Cupples, and Pinski was coercive and constituted
unlawful interrogation within themeaningof Section 8(a)(1)
of the Act.
Furthermore , having learned from his brother that the
men had signed union cards, it is apparent that Service
Manager Scott 's statement to his brother that the men might
be able to do something without the Union and that he was
pretty sure that he had sold Joe Graneto on a percentage
agreement with the men and that this percentage could
either be 25 or 50 percent constituted a promise of benefits
made to discourage union activity and was therefore viola-
tive of Section 8(a)(1) of the Act.
That evening after work , at approximately 6 o'clock, Ser-
vice Manager Scott held a meeting with the service depart-
ment employees at a nearby restaurant , The Home Plate
Inn. Several of the employees who attended that meeting
testified as to what occurred? From this testimony I find
that the following occurred at the meeting, though not nec-
essarily in the sequence given.
Service Manager Scott asked the assembled employees
what had happened at the meeting with the union represen-
tative earlier that day. When the employees told him that
they had signed union cards, Service Manager Scott then
stated, in substance, that Fred Graneto had said that he
would not allow a union in the shop and would close the
doors and fire everyone. He then told the men that they
should forget about the Union and make some kind of
3 Employees Jack Scott , Harrington, Gary Reed, and Stanley Pinski. As
heretofore noted , their testimony was not refuted by the Respondent's only
witness , Smith . Smith did not testify regarding these incidents.
555
agreement with the Respondent with Service Manager Scott
as their representative. He also warned the employees that
if they went union they would either be placed on a flat-rate
basis and would not be able to make a living, or, if they were
put on straight salary, they would not be able to put out
enough work for the Respondent to warrant the
Respondent's keeping them employed. He further discussed
the percentage plan which he had related to his brother
earlier that day. He further told the men that the Respon-
dent knew he was having this meeting and was there to spy
upon the men in order to find out what the Union had told
them about wages and other matters.
I find and conclude that at that meeting at the Home
Plate Inn on February 15, 1972, Service Manager Tom Scott
unlawfully interrogated employees regarding the benefits of
union membership; unlawfully threatened that Respondent
would cease operations before allowing employees union
representation; by the percentage plan unlawfully promised
benefits to employees; and by stating that he was there to
spy upon the employees gave the impression of surveillance
of employees union activities. It is clear that such activity
and such statements are violative of Section 8(a)(1) of the
Act and I so find.
Service Manager Scott , employee Gary Reed, and em-
ployee Jack Scott, upon occasion, rode together to and from
the Respondent's facility. On at least two occasions between
February 15 and 21 during such rides Service Manager
Scott made the statement that Fred Graneto had said that
he would close the doors and would fire everyone before he
would allow a union in his shop. Service Manager Scott
repeated this statement at several times during the working
hours in the shop to various employees at the time when he
was encouraging the men to take the percentage plan road
instead of going with the Union. At those times he repeated
that the shop would close down if the employees went
union 4
Accordingly, I find that these statements made to Reed
and to other employees including Jack Scott constituted
threats or reprisal against the employees for their union
activity and adherence and therefore were violative of Sec-
tion 8(a)(1) of the Act.
Sales Manager Smith testified that Respondent's wage
review policy sets the dates for wage review after the first
90 days after an employee is hired, after the first 9 months
from the employee's date of hire, after the first 15 months
from the date of hire and thereafter, annually. Respondent's
employees' records show that this is so inasmuch as in the
case of each individual involved herein, there were dates set
up for 3 months, 9 months, and 15 months, from the starting
date of each individual. However the Respondent's records
further show that this wage review policy was more or less
ignored.
On February 24, 1972, shortly after Service Manager
Tom Scott began his activities to discourage union activity
as heretofore found, he approached employees Jack Scott,
Franklin Cupples, and Stanley Pinski, and informed them
Although there was some discrepancy regarding dates between the testi-
mony of Reed and Jack Scott as to when and where these statements were
made, the testimony was not controverted by any Respondent witness and
f therefore conclude that the statements were made somewhere between the
dates of February 15 and 21 or 22.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had received a 5-1/2 percent wage increase. In the
case of Jack Scott the 3-month, 9-month, and 15-month
review dates were in no way related to February 24, 1972,
inasmuch as Jack Scott was hired on July 12, 1971. In the
case of Pinski there was possibly some relationship inas-
much as his 9-month review date was January 22, 1972.
However, it was a full month thereafter that his wage in-
crease was announced. In the case of Frank Cupples his
3-month period for review was December 22, 1971, and his
next review was not due until June 22, 1972. Accordingly,
I conclude that the date of February 24, 1972, was basically
not related to the review dates of these three employees.
Additionally, as mentioned above, by February 24, Tom
Scott had embarked on his antiunion campaign. Moreover,
I note that the Machinists letter to the Respondent request-
ing recognition for the mechanics and other employees is
dated February 17, 1972, a Thursday, and that the
Respondent's records show that the book date of the raises
of these 3 individuals was February 21. From this it can be
inferred the Respondent had received the Machinists' de-
mands by the time it granted the wage increases. Nor does
there seem to be a relationship between the date the wage
raises for these three employees were announced and the
end of phase I of the Government's Wage and Price Control
policy and the beginning of phase II which permitted, ba-
sically, a 5-1/2 percent increase in wage increases. This
conclusion is reached because phase II began on November
14, 1971, and the wage increase involved herein were not
announced until some 3 months later.
Because the Respondent did not offer any evidence, aside
from setting forth its normally ignored wage review policy,
and because the wage increases were given after Tom Scott,
the service manager, began his antiunion activities and the
Respondent received the Machinists' request for bargain-
ing, I find and conclude that Respondent, through Service
Manager Scott, granted benefits to these three employees in
order to discourage employee union activity in violation of
Section 8(a)(1) of the Act.
On February 22, another meeting was called by Service
Manager Scott at the Home Plate Inn. Several employees
testified as to what occurred at that meeting.' Service Man-
ager Scott announced that he had been discussing a percent-
age plan with Joe Graneto. Scott told the employees that the
plan would call for either 25 or 50 percent of anything they
made over double their wages. Thus if a man's salary was
$100 a week and he performed $200 worth of labor per week
for the Respondent, he would receive a percentage of either
25 or 50 percent of anything over that $200. He further
explained to the men that if they joined the Machinists all
of the men would be put on a flat rate and that they could
never make it. Tom Scott then said that as a result they
would end up being fired or laid off because they could not
make the flat rate.
Scott further stated that he would try to contact Fred
Graneto the next day and talk to him about the plan. All
the employees present agreed that the plan seemed like a
good one and that Service Manager Scott should talk to
Fred Graneto about it Service Manager Scott explained,
5 Employees Harrington, Reed, and Emas. As noted above the testimony
of these employees is wholly uncontradicted in the record
when he opened the meeting, that the Respondent had re-
ceived a letter from "the Union" and that is why the plan
was being offered. However, the two porters, Kelly and
Hutch, and Emas, the partsman, spoke up against the plan
because they did not perform mechanical work. Upon that
protest, Service Manager Scott told Emas that if the latter
were not quiet he would not be going to work the following
day.6
From the foregoing I find that Service Manager Scott at
that meeting threatened employees that they would be as-
signed additional work in a union shop which would result
in their being laid off or discharged, and also threatened
employee Emas that he had better be quiet if he did not wish
to be fired. Service Manager Scott also promised that the
Respondent would institute a new plan if the employees
abandoned the Union. These statements constitute interfer-
ence, coercion, and restraint in violation of Section 8(a)(1)
of the Act.'
On February 23, at approximately 1:15 p.m., in the
Respondent's service area, Joe Graneto and Service Manag-
er Scott held a meeting with employees Cupples, Pinski,
Harrington, Reed, Emas, Hutch, Kelly, and Jack Scott.
Joe Graneto asked each man individually to tell him what
his trouble was. The men were reluctant to speak up. Em-
ployee Harrington finally stated that he was not having any
trouble with money, as he thought his salary was equitable,
but he thought the other men were unhappy about the
amount of pay they were receiving. Jack Scott finally spoke
up and said that the biggest problem the men were having
was that they were not getting enough money and were not
getting their raises at the times they were supposed to get
them. Joe Graneto then asked the men assembled if Service
Manager Scott had spoken to them about payment on a
percentage basis. At that point, Tom Scott said that he had
mentioned it but he had only outlined it and had not given
details.
Joe Graneto then proceeded to give the men some of the
details of a proposed percentage plan. He said the men
would get a guaranteed weekly pay as a base. If the Respon-
dent made enough on a man's labor equal to double a man's
base pay, then the men would receive a percentage of ev-
erything over double the base pay of either 25 or 50 percent.
He explained that if a man was making a $100 a week and
that the Respondent could show that it made over $200 a
week on labor for that man he would receive a percentage
of everything over $200: Graneto further explained the per-
centage would be either 25 or 50 percent.
Joe Graneto then went on to explain that as far as the
parts men, the lube men, and the porters were concerned,
something would have to be worked out because they were
6 Reed testified that it was at that meeting of February 22 that Service
Manager Scott told the men that the Respondent 's officers and officials knew
he was there at the meeting and that he had come for the company as a spy
to find out what he could about the union activities of the men However,
because this particular statement by Service Manager Scott seems to have
occurred at an earlier meeting , I find Reed's memory as to the dates when
Scott made the statement not to be too dependable and do not find that at
that meeting Scott made this statement alleged by Reed to have been made
by him
I do not find that other allegations contained in subparagraph I of para-
graph 2 of the complaint have been proven by the testimony offered by the
General Counsel and accordingly I shall order dismissed that portion of the
paragraph not so proven
GRANETO-DATSUN 557
in a separate unit . However , nothing specific was decided
upon and time ran out . It was time for the men to return to
their work.
Joe Graneto agreed to have another meeting with the men
at 6 o'clock on that evening . However , the later meeting was
called off . Service Manager Scott explained that Joe Grane-
to had been in contact with the Respondent 's attorney and
had been told to stay clear of any meeting where he had to
make a decision . The attorney said that if there was going
to be any more meetings pertaining to wages such a meeting
would have to be held with Fred Graneto . It should be
noted that the word "union" or the name of any union was
not mentioned at this meeting by either Joe Graneto of
Service Manager Scott.
Although counsel for the General Counsel alleges and
contends that in asking the men at that particular time what
was bothering them , in view of all of the surrounding cir-
cumstances Joe Graneto was interrogating the employees
concerning their union activities and sympathies , I do not
find this to be true . Although the Machinists letter request-
ing recognition could well have been received by Joe Grane-
to by that time , there was nothing in the conversation which
inquired into the men 's union activities or sympathies. I
therefore do not find that the interrogation by Joe Graneto
of the men at this meeting was coercive and unlawful.
However, in view of all the circumstances , among them
Tom Scott 's threats and other activities with regard to the
employees in the service department and the fact that Re-
spondent must have received the letter from the Machinists
requesting recognition by the time of the meeting , I find and
conclude that the suggestion by Joe Graneto that the men
be put on a percentage basis in order to increase their earn-
ings and that the nonmechanics wages be increased by some
new wage plan constituted a promise of benefit to the em-
ployees in order to induce them to forego their union activi-
ties and sympathies . Such offer constitutes interference with
the employees ' Section 7 rights and is therefore violative of
Section 8(a)(l) of the Act.
Later the same day Joe Graneto spoke to Kelly and
Hutch , the two porters . According to Kelly , Graneto told
the two porters that he was trying to work out a raise for
everyone but that he did not know the details nor did he say
when the raises would be put into effect . During the strike
which is detailed hereunder Kelly and Hutch returned to
work and at that time were given raises . The General Coun-
sel contends that Joe Graneto's statements to Kelly and
Hutch were promises of benefits constituting interference
with employees' Section 7 rights in violation of Section
8(a)(l) of the Act . I agree and so find.
On or about March 1, Jack Scott received a call from
Union Representative Marvin Timmerberg, of the Machin-
ists, who told Jack Scott that he had not received any re-
sponse from Graneto -Datsun to the Machinists ' letter
requesting recognition . Timmerberg thereupon suggested
that the men meet with him at an early date. Jack Scott
agreed to have the men meet with Timmerberg at 6 o'clock
the following day, March 2. At approximately I I a.m. the
same morning , Jack Scott told his brother , Service Manager
Tom Scott, that the union meeting had been set for the next
evening at 6 p.m. Jack Scott said that if there were going to
be any negotiations directly between the employees and the
Respondent it had to be between that time and 6 o 'clock the
next evening, when the meeting with the Union was sched-
uled because at that meeting a strike might be called.
The following afternoon , March 2 , Tom Scott called a
meeting of the employees at the Respondent 's premises
which was attended by Pinski , Reed , Cupples , Harrington,
Emas, Kelly, Hutch , and Jack Scott . Service Manager Scott
told the assembled men "I just had a call from Fred. The
first thing he said was he would close the shop before he
would let the union come in." Then Tom Scott went on to
say that Fred Graneto had told him that the next thing to
do was to fire every man in the shop . Tom Scott then in-
formed the men assembled that he had talked Fred Graneto
out of this action for the time being . He told the men that
the condition was that the men forget the Union. He related
that Fred Graneto told him that any man that wanted to
continue working for Graneto -Datsun the way things were
right then could do so . He also informed the employees that
Fred Graneto would be willing to have a conversation with
any man , individually , who had any problem pertaining to
wages , hours , benefits , and other matters, but that he would
not talk to them as a group . Service Manager Scott further
informed the men that Fred Graneto had told him to tell the
men that any man that did not want to continue under these
terms could pick up his tools and toolbox and "hit the door
because he's fired."
Jack Scott then asked his brother whether that meant that
the men should just forget the Union and do everything that
the company wanted them to do; that each man could take
his chances on what ever he could get from the company,
either a raise or discharge , or else just be fired anyway. Tom
Scott answered that he was saying that. Whereupon Jack
Scott said that that was what it boiled down to and Tom
Scott agreed . However, Tom Scott added that the records
would not show that the men were fired for joining the
union. The records would show they were fired for ineffi-
ciency. Jack Scott then reminded his brother that this would
look mighty peculiar in view of the fact that some of the men
had worked there satisfactorily as mechanics for a period of
up to 2 years. Tom Scott answered that was what the record
would show . He then warned the assembled employees that
they were going to have to give their answer immediately
because Fred Graneto was waiting for Tom Scott to call
Graneto back . Thereupon the men caucused and agreed
that they would do what the company desired but that they
would go to the union meeting that night anyway to see
what would happen.
At the meeting on the evening of March 2 , with Represen-
tative Timmerberg of the Machinists and Representative
Porterfield of the Teamsters , the employees decided that
Timmerberg and Porterfield should make one more attempt
to contact the Respondent to seek recognition and bargain-
ing. The union representatives informed the men that on the
following Monday morning, March 6 , they would come to
the Respondent's premises and request recognition and bar-
gaining . They told the men that if this did not bring results,
they would like the men to go out on strike . The employees
decided unanimously to go along with that suggestion.
On the morning of March 6 , about 9 a .m., Porterfield and
Timmerberg approached Joe Graneto at the Respondent's
automobile showroom , the details of which are herein below
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth . Suffice it to say, they were refused recognition and
as a result called the men in the service department out to
strike . Almost all of the employees of the service department
complied with the strike call and walked out.
Among the employees who walked out on strike that day
was Stanley Pinski . Later that same night about I1 p.m.
Pinski received a telephone call at his home from Service
Manager Scott . Scott told Pinski that Scott had a chance to
get two of the men to come back to work and that he could
get their jobs back for them . Pinski asked who these men
were and Service Manager Scott said that they were Tim
Harrington and Pinski . Pinski asked Scott if Pinski would
get anything out of it by way of a raise . Tom Scott answered
that all Pinski would get was his job back . Thereupon, Pin-
ski told Tom Scott that the men were out picketing for good
reason and wanted more than just a job; they wanted more
security . Tom Scott answered that he hated to see all the
men who walked out "go down the gutter like they did." He
added that he would like to notify Tim Harrington so that
he could talk to Harrington also.
This conversation between Service Manager Scott and
employee Pinski contained a threat by Scott to Pinski of
adverse action and retalihtion against the employees for
having engaged in a strike and other union activities pro-
tected by Section 7 of the Act . Accordingly , it constituted
a violation of Section 8(a)(1) of the Act.
On March 9 , while the strike and picketing still contin-
ued, Pinski had a further conversation with Service Manag-
er Scott , this at the restaurant known as the Home Plate
Inn. Also present at the conversation was Bob Ponder, a
former employee of the Respondent . Tom Scott told Pinski
in the presence of Ponder that all of the employees had been
fired that Monday, March 6, when they went out on strike.
Pinski asked Service Manager Scott when the latter found
out that the men were fired . Scott answered that he was
given this information on the Friday before the strike and
the information was to the effect that the employees were
to be fired as of the coming Monday . Tom Scott then stated
that he had it "in black and white " why the men were
discharged . Scott asked Pinski if the latter would like to see
this paper . When Pinski answered in the affirmative , Service
Manager Scott showed Pinski a paper stating that Pinski
had put in only 6 .4 hours of work out of a 40-hour work-
week . Pinski then asked Scott if that meant that Pinski was
incompetent and was Pinski considered incompetent so
suddenly after working satisfactorily for the Respondent for
a period of 10 months . Pinski also stated, referring to Har-
rington , "Tim has been here for over a year and all of a
sudden he is incompetent now." Tom Scott became angry
and changed the subject and did not answer Pinski's ques-
tion.
Service Manager Scott 's statement to Pinski that the men
were discharged the day they went out on strike constitutes
interference , coercion, and restraint and is therefore viola-
tive of Section 8(a)(1) of the Act.
According to the testimony of employee Gary Emas, he
joined the striking employees on March 6 , and walked the
picket line usually in the mornings. Emas further testified
that on the mornings of March 25 , 29, and 30 at approxi-
mately 9 to 9:30 a .m. while picketing in front of and across
the driveway entrance to the Respondent 's premises, auto-
mobiles driven by Sales Manager Jack Smith came into the
driveway without warning and in such a manner as to barely
miss hitting Emas . On the third of these occasions, when
Smith came to a stop , Emas asked Smith what the latter was
tying to do . According to Emas he said to Smith "This is the
third time you have done this, what are you trying to do kill
me or something?" Smith answered "My friend , any time
anybody walks back and forth across my driveway, which
is my driveway and it doesn 't prove a thing to me, I am
going to run them over and not hesitate a bit ." With this
Emas looked at Smith and said "Do you want to go to jail
or be sued or go to court?" To this statement Smith replied,
"My friend , if I get sued it sure won ' t be for you because
you'll be dead, if I ever hit you." Smith then continued "The
most your widow would get is $2-3,000 out of it ." With that
Smith entered the Respondent's premises.
In testifying Smith admitted that upon one or two occa-
sions while turning into the driveway of Respondent 's prem-
ises he almost hit Emas. Smith also admitted that on one
such occasion he had a discussion with Emas. However,
Smith did not testify as to the content of this discussion.
Smith, in testifying , stated that as one approached the drive-
way of the Respondent the view of the driveway was ob-
structed by heavy traffic and the sign of a real estate
company cut off the view of a driver approaching from the
right to the extent that the driver could not see until he was
practically in the driveway whether anyone was standing or
walking in the driveway.
Because Smith in his testimony did not deny the conver-
sation which occurred on March 30 , and because he did not
explain or relate what occurred in that conversation, I find
from my observation of both of the witnesses and from their
testimony that Emas was telling the truth as to what Smith
stated on that occasion . I find that Smith 's statement to
Emas on March 30 was a virtual admission that Smith was
seeking to frighten Emas in retaliation for Emas' picketing
the Respondent 's premises. I find that the purpose of
Smith 's conduct was to interfere with Emas ' protected right
to engage in picketing. Accordingly , therefore, I conclude
that Smith 's conduct in threatening Emas both by his verbal
statement on March 30 , and his conduct in driving into the
Respondent's driveway as Emas was picketing so as to
frighten or threaten Emas, constituted threats of reprisal for
engaging in protected activity and as such was violative of
Section 8(a)(1) of the Act. '
C. The Discriminatory Discharges and
Withholding of Paychecks
1. The discharges
As heretofore related , most of the Respondent's service
department employees went out on strike on March 6,,and
participated in picketing the Respondent 's premises. Also,
as found above , at the beginning of the strike, March 6,
Service Manager Scott called Pinski at home and told the
latter that Service Manager Scott had a chance to have two
of the employees reinstated. Scott also said that he hated to
see all of the men who had walked out "go down the gutter."
Again , 3 days later, Service Manager Scott told Pinski that
the strikers had been fired as of the day they went on strike
GRANETO-DATSUN 559
and that Scott had learned this the Friday before. Addition-
ally, as also found above, on March 2, before the strike
action was taken, Service Manager Scott instructed the em-
ployees, after stating that he had talked Fred Graneto out
of firing the employees, Fred Graneto had said that the men
could stay, in substance, if they "forgot the union business."
The walkout and the strike were certainly overwhelming
indication by the employees to the Respondent that the
employees would not "forget about the union business."
Finally the Respondent's own records are marked to show
that employees Jack Scott, Stanley Pinski, Timothy Har-
rington, Frank Cupples, Gary Reed, and Gary Emas quit as
of March 6, 1972.
The General Counsel contends that all of these factors
must lead to the ultimate conclusion that the Respondent
discharged the above-named employees because of their
activities in and their sympathies for the two Charging
Unions.
The Respondent contends otherwise, claiming that the
Respondent never discharged any of the employees. In sup-
port of its contention the Respondent cites the fact that
during the hearing herein, to be exact on May 24, 1972,
when these employees notified the Respondent, in writing,
that they agreed and offered unconditionally to return to
work the Respondent immediately, on May 25, accepted
unconditional individual offers to return to work and in-
formed the employees to report to work within 10 days from
that date. Respondent further cites the fact that employee
Kelley who went out on strike returned to work within 3 or
4 days thereafter and was not discharged by the Respon-
dent, nor was he refused reinstatement or work.
Respondent further points to the testimony of its only
witness, Sales Manager Jack Smith, to the effect that the
Respondent was not aware of the activities of Service Man-
ager Scott with regard to the various acts of alleged Section
8(a)(1) threats, interrogation, and other interference with
the employees' Section 7 rights. If Smith is credited, this
would seem to indicate that die conversations on March 6
and 9 between Service Manager Scott and employee Pinski
were not necessarily true reflections of the action or a lack
of action which the Respondent took after the strike. How-
ever,°Smith admittedly did not take an active part in making
labor relation policy for the Respondent. Nor, moreover,
did he have personal knowledge of any conversations be-
tween Fred Graneto, Joe Graneto, and Service Manager
Scott. Moreover, the fact that Respondent noted on its re-
cords that the employees "quit" as of March 6 would indi-
cate that the Respondent no longer considered them
employees because they went on strike.
While it is true that the record does not reveal that the
employees as a group or individually, with a possible excep-
tion of Pinski, were ever notified formally that they were
discharged, I nevertheless find and conclude that the Re-
spondent did, indeed discharge the employees on March 6,
1972. I further find that this discharge was taken in retalia-
tion for their union activity and to discourage union activity
and it was therefore discriminatory and violative of Section
8(a)(3) and (1) of the Act.
In accordance with the strikers' offer to return to work
and the Respondent's acceptance of such unconditional of-
fer, Jack Scott, Pinski, Harrington, Cupples, Reed, and
Emas all returned to work immediately. However, although
all of the other employees who were put back to work pur-
suant to the foregoing offer and acceptance where placed in
their former jobs, Gary Emas was not. On the first morning
that Emas returned to work he was told to work in the lube
rack, which he did. Furthermore, Emas removed and rotat-
ed tires, drove cars to an auto top subcontractor, cleaned up
and swept out several cars, and replaced a bumper on a car
which took Emas approximately 4 hours. After he replaced
the bumper, Emas swept the floor around the parts cage and
around the staircase and other parts of the shop. Then he
was assigned to clean up the parts cage, dust off the parts
in the shelves, and perform cleanup work for the remainder
of the day. This was not the type of work Emas had done
prior to the strike and discharge.
Before the walkout and the discharge on March 6, Emas
was the parts man in the Respondent's service department.
His job consisted of filing parts orders and taking care of
ordering parts from the supplier and from various Datsun
depots in the United States and Japan. He issued parts to
the mechanics and, if necessary, located parts which were
not in stock if needed by a mechanic. His working area was
located in the parts cage completely. He did no work as a
mechanic, lubeman, or porter.
When Emas returned to work, there was a new parts
man who performed the work Emas formerly performed.
On Tuesday, May 30, Joe Graneto assigned Emas to the
parts man and told him that the new parts man would give
him work to do. The parts man had Emas rearrange parts
and articles. Emas was also ordered by the parts man to run
errands to various suppliers and to junkyards to pick up
parts for cars. Before Emas had not formerly run such er-
rands, at least not to the extent he did on that day.
On May 30 Emas, on three different occasions, inquired
of Joe Graneto as to whether Emas could take off the next
day, May 31, for the purpose of taking his own car to a body
shop. This was necessary because an insurance adjuster
would then be able to make an assessment of damage to
Emas' car which had evidently been in an accident. On each
of the three occasions during that day when Emas requested
this permission of Joe Graneto, Graneto neither assented to
nor denied Emas' request, but merely ignored Emas com-
pletely. The next day, May 31, Emas did not report for work
because of the necessity of having to take his car to the body
shop as stated above. However, before the beginning of the
working day he called the office secretary and told her that
he would not be in and the reasons therefor. This was the
procedure which had been followed by Emas on other occa-
sions prior to the strike and which other employees have
also followed. No one had ever been reprimanded, accord-
ing to Emas, for following this procedure. Additionally,
Emas had been told, as had the other men, by Service Man-
ager Scott that if a man could not be at work for personal
reasons it was required that he call the office secretary who
in turn would inform Service Manager Scott.
On June 1, at the usual reporting time, Emas reported to
work. He went to the parts cage and was preparing to open
the cage in the absence of the other parts man when Joe
Graneto told him to report to the showroom office. Joe
Graneto came into the office of the showroom, had Emas
sit down and said nothing further to Emas. About 15 min-
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utes later Emas started to get up. Joe again told him to sit
down and kept him waiting there for most of the morning.
Finally, about 10 :45 Joe Graneto handed Emas a letter
stating that Emas was discharged . The reason for the dis-
charge as stated in the letter , was "for taking off work
unauthorized."
Sales Manager Jack Smith , the only witness for the Re-
spondent, did not testify as to the reasons for Emas' dis-
charge except to reiterate what was contained in the letter.
It is apparent from all of the foregoing that the Respon-
dent did not reinstate Emas to his former or equivalent
position . Additionally , Joe Graneto 's treatment of Emas
after his reinstatement was indicative of Graneto's attitude
toward Emas . Joe Graneto 's refusal to answer Emas' re-
quest or deny the same when Emas:asked for the day off on
May 30 for the purpose of having his car attended to is
further evidence of this attitude . Finally, Joe Graneto's
treatment of Emas on June 1, before he gave the letter of
discharge to Emas, having Emas sit in his office for several
hours without saying a word to him , indicated that Joe
Graneto harbored a grievance against Emas for having par-
ticipated in lawful union activity . I therefore find and con-
clude that Emas' absence on May 31 was seized upon by Joe
Graneto as a pretextual excuse for ridding the Respondent
of a union adherent and I further find that the discharge was
in reprisal for Emas' union activity. This conclusion is bol-
stered by the fact that Emas' testimony as to the procedure
followed before the strike when taking a day off for personal
reasons was not denied in any way by Respondent's only
witness . Accordingly I find that the discharge of Emas on
June 1 was discriminatory and violative of Section 8(aX3)
and (1) of the Act .8
Franklin Cupples returned to work on May 26, 1972, in
response to the Respondent 's offer of reinstatement. Cup-
ples was assigned to the same type of mechanic work that
he had performed before the strike and discharge. Accord-
ing to Cupples' testimony , on June 1 , he was assigned to
repair a sports car. To do so the car had to be placed on a
rack . This rack was about 3 feet off the ground and its use
required that the car be driven up a ramp onto the rack.
According to Cupples, at that time there were a number of
cars being worked on near the rack and he could not ap-
proach the rack directly from the front in order to drive it
up the ramp . However he maneuvered the rack and very
carefully drove the car up the ramp. Just as he thought he
was completely on the rack the two front wheels went over
the side of the rack and the car landed on its frame, with
the two front wheels hanging down . The rest of the car
remained on the rack . Cupples testified that he and a num-
ber of the men replaced the car on the rack and there was
no damage to the car. Thereafter he completed the work
that was assigned.
Cupples further testified, and was not contradicted, that
during the winter before the events herein , Bob Ponder, a
former employee of the Respondent , had a similar mishap
in putting a car on the rack . At that time the car was re-
placed as it was in Cupples case , there was no damage to
Although the discharge of Emas and , as hereafter related , of Cupples, was
not alleged in the complaint and, in fact , occurred during a recess in the
hearing herein , it was fully litigated Pioneer Flour Mills, 174 NLRB 1202.
the car, and Ponder was neither reprimanded nor disci-
plined in any way. '
Upon cross-examination Cupples admitted that on the
day following the incident of the car rack he was told by Joe
Graneto to push a stalled car from the driveway area into
the service area. Cupples went to the car and tried to start
it in the normal fashion. However, the car would not start.
Joe Graneto then said to Cupples, according to Cupples "I
don't think it will run Frank, we are going to have to push
it in."
Cupples was further asked on cross-examination whether
he had been assigned to torque the head of a car and had
taken about 4 hours to perform the work. Cupples denied
that he had done any such work and could not remember
it. Cupples further stated that such ajob would take perhaps
20 minutes to a half hour to perform, but he could not
remember having performed such work on any car at the
time specified by Respondent's counsel.
Cupples further testified on direct that on June 2, 1972,
he was given a letter of discharge by Joe Graneto. This letter
informed Cupples that he was discharged for "not following
orders, misuse of company time, and disregard of
customer's property."
Jack Smith, Respondent's only witness, and sales manag-
er of the Respondent, stated that he had been one of the
individuals who assisted in placing the wheels of the car,
which had gone off the rack, back on to the rack. He admit-
ted, in his testimony, that there was no damage to the car.
The only difference between his testimony and Cupples'
testimony with regard to the car was in the number of men
required to lift the car up to place the front wheels back on
the rack. Smith further testified that he was told that Cup-
ples was discharged not only for this incident but that Joe
Graneto also told Smith that Cupples was discharged be-
cause he took 4 hours to torque the head of a car when the
normal time was one-half hour and that Cupples had at-
tempted to start a car which had a bent valve after Joe
Graneto had told Cupples to push the car into the
Respondent's service department. It should be noted that
insofar as the alleged incident concerning the failure to
torque the head of a car in the normal amount of time, the
Respondent's shop records would have shown this, but were
not introduced or even offered or produced at the hearing.
From my observation of the witnesses on the witness
stand , and because except for the incident of the car on the
rack, Smith had no personal knowledge of the incidents but
had merely been told about them by Joe Graneto, I do not
accept Smith's version of what occurred and accept Cupples
denial with regard to the alleged incident of consuming too
much time in torquing the head of a car. Certainly, the
person who knew most about this incident, Service Manager
Scott, was not produced, nor did the Respondent offer to
produce for testimony its vice president and general manag-
er in charge of its facility, Joe Graneto. As noted above,
neither did the Respondent produce its shop records.
By reason of the foregoing, and by reason of all of the
circumstances surrounding the discharge of the employees
who went on strike and the reinstatement and the
Respondent's apparent unwillingness to deal with the
Unions I find and conclude that, although Cupples might
not have been the ideal employee and may have made some
GRANETO-DATSUN 561
mechanical mistakes , the three incidents or alleged inci-
dents cited in Cupples' discharge and testified to by Jack
Smith were seized upon by the Respondent in order to rid
itself of an active union adherent. This conclusion is further
strengthened by consideration of the fact that Cupples testi-
fied that a former employee who had driven a car off the
rack in the same manner as had Cupples had not been
reprimanded in any manner.
Accordingly, I find and conclude that the discharge of
Cupples was discriminatory in that it was used, at least in
part, for the purpose of discouraging union activity and was
therefore violative of Section 8(a)(3) and (1) of the Act .9
2. The withholding of the paychecks
March 6, the day the employees went out on strike, was
a payday. As noted above, the men went out on strike at
approximately 9:30 in the morning of that day before pay-
checks were distributed. Upon a number of occasions dif-
ferent employees thereafter requested their paychecks from
Joe Graneto and Fred Graneto but their requests were ig-
nored. Finally, on the third day of the strike Jack Scott
asked Service Manager Tom Scott what had to be done by
the men to obtain their paychecks. Service Manager Tom
Scott informed Jack Scott that the men had to turn in their
uniforms.
A day or so after the strike began, employee Harrington
asked Joe Graneto's secretary what had to be done by the
men in order to secure their paychecks. He was told by the
secretary that the men had to turn in their uniforms. Ap-
proximately a week after the strike began, Harrington, in
conformity with the foregoing information, turned in his
uniform. With him at that time were employees Pinski and
Emas who also turned in their uniforms. Although these
three employees turned in their uniforms, they did not re-
ceive their paychecks until the Respondent made its offer to
reinstate the employees. Thus, none of the employees re-
ceived their paychecks until that time.
The foregoing constitutes all of the evidence pertaining to
this allegation of the complaint. Yet, the Respondent in its
brief maintains that it had a company policy regarding pay-
ment of final paychecks. This policy is that until certain
conditions are met, namely return of uniforms and compa-
ny tools and execution of a receipt and release, the check
would be retained and not paid to the employee. As set forth
above, none of the employees were told that it was required
that they turn in their tools or sign a receipt for the pay-
checks. There was no testimony that any of the men knew
of the company policy which the Respondent in its brief
claims existed at the time of the strike. Furthermore, there
9 The General Counsel contends that a finding should be made that the
employees who walked out and who were discharged on March 6, 1972, by
the Respondent were unfair labor practice strikers and therefore entitled to
reinstatement to their former or equivalent positions when they made uncon-
ditional application to return to work on May 24, 1972 . However , inasmuch
as the Respondent discharged the striking employees on March 6 , 1972, the
day they walked out and began to picket the Respondent , it is unnecessary
to make this determination . This is so because even assuming that the em-
ployees who walked out were merely economic strikers and not unfair labor
practice strikers, they were discharged before they were replaced and were
therefore entitled to reinstatement to their former or equivalent positions.
N.L R B v. International Van Lines, 409 U.S. 48 (1972).
is no indication anywhere in the record, or in the
Respondent's contentions, that any of the men who went
out on strike on March 6 took with them any company
tools. The only thing that was told to some of them was that
they would get their checks if they turned in their uniforms.
The record shows that three employees followed these in-
structions and did turn in the uniforms and yet did not
receive their checks.
I, therefore, find and conclude that the Respondent with-
held the paychecks of the employees who went on strike for
the purpose of retaliation for their protected activity and for
the purpose of forcing them to give up such activity. This
conduct on the part of the Respondent constituted discrimi-
nation in regard to a term and condition of employment,
payment for work performed for the Respondent. I further
find that this course of action was taken for the purpose of
discouraging membership in the two labor organizations
involved herein. Accordingly, I find that the Respondent,
by withholding the paychecks, violated Section 8(a)(3) and
(1) of the Act.
D. The Refusal of the Respondent to Bargain
With the Union
1. The organizational efforts, the
requests for recognition and the failure of the
Respondent to answer the requests
As earlier set forth in this Decision, certain employees of
the Respondent met with Machinists Representative Mar-
vin Timmerberg. At the meeting mechanics Pinski, Harring-
ton, Cupples, and Jack Scott signed union cards. Gary
Reed, a lube man, also signed a card but was informed at
that time that he might not be eligible for membership in the
Machinists and that this matter would be straightened out
at a latter date. Thus, on February 15 the four, full-time
mechanics working in the Respondent's service department
signed union designation cards for the Machinists.
On February 21, employees Gary Emas and Gary Reed
met with Business Representative Richard Porterfield of the
Teamsters. As noted before, Reed is a lube man and Emas
was the Respondent's parts man. Porter Joe Kelley was also
scheduled to meet with Porterfield on that day but did not
arrive. Emas and Reed signed designation cards for the
Teamsters on that date. Emas was given a card by Por-
terfield for Kelley. The next day Kelley signed a card desig-
nating the Teamsters as his bargaining representative. There
was one other porter in Respondent's service department at
that time, a man by the name of Hutch, who neither met
with the Union nor signed a designation card.
On February 17, 1972, James J. Redman, Machinists offi-
cial, after receiving the designation cards from Business
Representative Timmerberg, wrote a letter addressed to the
Respondent in which he requested recognition and bargain-
ing for a unit described at length. On February 22, 1972,
Carl E. Gibbs, business representative of the Teamsters,
having received the union designation cards from Business
Representative Porterfield signed by Emas, Reed, and Kel-
ley, requested, by letter of that date, addressed to the Re-
spondent, recognition and bargaining for a unit described
as "parts men, lubrication men, utility men, porters and
truck drivers."
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent does not deny having received those
letters requesting recognition and bargaining . However, af-
ter receipt of the letters , the Respondent failed to answer
them or to communicate with either the Teamsters or the
Machinists in any manner whatsoever . Before and after the
receipt of these letters requesting recognition, the Respon-
dent committed the violations of Section 8(axl) herein-
above found.
On March 2, 1972, not having received any reply from the
Respondent, Timmerberg and Porterfield met with a num-
ber of the Respondent's employees at a restaurant near the
Respondent's premises and at that meeting stated that they
would make a personal attempt to speak to the Respon-
dent's representatives and again request recognition
and explain their position . Timmerberg and Porterfield told
the men that if recognition was refused , and the men agreed,
they would then call a strike . The employees assembled at
that meeting agreed to this arrangement.
In accordance with the foregoing plan, at approximately
9 a.m. on Monday morning , March 6 , 1972, Timmerberg
and Porterfield entered the premises of the Respondent,
went into the salesroom , and told Joe Graneto who they
were . Before they could explain their position or make any
request for recognition whatsoever they were told, in so
many words by Joe Graneto , that if they were not there to
buy cars to get out . Thereafter, Timmerberg and Porterfield
signaled the service department employees , who then went
out on strike and began picketing the Respondent 's prem-
ises . To date, the Respondent has not answered the requests
for recognition and has continuously refused to bargain.
The Respondent defends its refusal to bargain upon sev-
eral gounds . The first ground claimed , that District 9 of the
Machinists is not a labor orgainization , is disposed of at the
outset of this Decision , above. The second ground which the
Respondent proffers is that the requests for recognition de-
scribed overlapping units . Therefore the Respondent could
not answer the requests for recognition in that such requests
constituted what to the Respondent looked like a jurisdic-
tional dispute between the Teamsters and the Machinists.
Respondent did not want to be caught in the middle of such
dispute . The Respondent further agrees that the situation is
further confused by the fact that on March 9, 1972, in Case
14-RC-6980 the two Unions herein filed a joint petition for
representation of a unit described as "all service department
employees." Also, on the same date , the Teamsters and the
Machinists in Case 14-CA-6736 filed a joint charge in
which it described the unit as "all service department em-
ployees." Thus, argues the Respondent, there was never
sufficient or proper demand made for bargaining in appro-
priate units so that the Respondent could respond thereto.
The situation , according to the Respondent, was so con-
fused that the Respondent had no way of knowing for what
units the two Unions were demanding recognition.
Respondent also offers as a defense for its refusal to
bargain the allegation that the cards of the employees were
not obtained by candid representations made by the
Unions' representatives and were therefore not valid au-
thorization cards. It also attacks the card of Joe Kelley
specifically as having been signed by him before it was filled
out. In connection with the unit majority question and the
unit designation question the Respondent also contends
that after the cards were filled out, and at least up until the
time just before the strike, the employees of the Respondent
were negotiating directly with representatives of the Re-
spondent and had, therefore, not in reality designated the
Unions as their bargaining representatives.
Lastly, the Respondent defends its refusal to bargain on
the ground that approximately 2 years before the events
with which the instant proceeding is concerned, the Ma-
chinists set up an informational picket line at the Respon-
dent's plant, and that Marvin Timmerberg was seen
on that line. During the night of March 9, 1970, shots were
fired by persons unknown and damaged a number of dis-
play vehicles on the Respondent's property. The Respon-
dent infers that Timmerberg had something to do with this
incident and therefore inferentially claims that it does not
have to bargain with the Unions for this reason.
The foregoing defenses, contentions, and arguments of
the Respondent are dealt with hereinafter seriatim.
1. The appropriate units
In its letter of February 17, 1972, requesting recognition
and bargaining, District 9 described the unit it was seeking
as "journeymen, automobile and truck mechanics, machin-
ists , electrical machinists, welders, trimmers, metalmen,
fender, body painters, radiator repairmen, refrigeration, au-
tomotive air conditioning mechanics, service salesmen and
towermen, apprentices and working foremen."
The Teamsters request for recognition and bargaining
dated February 22, 1972, described the unit it was request-
ing to represent as follows: "parts men, lubrication men,
utility men, porters, and truckdrivers."
While the unit description of the unit requested by the
Machinists is lengthy and the Respondent does not and did
not employ people in all of the categories stated in the unit
request, it did employ automobile mechanics, truck me-
chanics, and machinists. I find that the designation of other
classifications is mere surplusage and not so confusing as to
have left the Respondent in doubt as to which employees,
by classification, the Machinists were requesting.
The same conclusion is made with regard to the unit
request made by the Teamsters. The Respondent did em-
ploy parts men, lubrication men, porters, and a truckdriver.
While it is true the Respondent did not have any such
classification as utility men as such, actually the porters and
the lube men did odd jobs around the service department
which would normally be regarded as utility work.
Thus, I find and conclude that with regard to the de-
mands made by the two Unions involved, there was not
such confusion or overlapping of classifications as to place
the Respondent in the position of believing it was placed in
the middle of a jurisdictional dispute. I therefore find that
the Respondent's contention in this respect is without merit.
However, the Respondent contends that confusion was
further injected into the situation by the filing of the repre-
sentation petition jointly by the two Unions, requesting a
unit of "all service department employees" and by the filing
of the original charge in the instant proceeding which de-
scribed the units "as all service department employees."
However, an amended charge was filed in which the sepa-
rate units were described and are the units described in the
GRANETO-DATSUN
complaint herein . The Respondent's argument that the fil-
ing of the petition in the original charge in this proceeding
served to confuse the Respondent so that it did not know
which units the Unions were requesting is without legal
ground . Both the charge and the petition are not formal
pleadings but are used only for the purpose of instituting
proceedings and investigation and are subject to
amendment as a matter of right.10
Accordingly, the filing of the petition and the charge
cannot be construed as a waiver by either of the Unions of
their continuing demand to represent the employees in sepa-
rate units, in accordance with their original written de-
mands.
With regard to the basic appropriateness of the units
requested, introduced into evidence were contracts between
the Machinists and The Greater St. Louis Automobile Asso-
ciation, Inc. and St . Claire-Madision Automotive Associa-
tion, Inc., which indicate that the area practice for units in
automobile sales and service agencies consists of the classi-
fications described in the Machinists request for recogni-
tion . Thus, it is established , that in the St. Louis area the
Machinists have historically represented employees in just
such units . This conclusion is further bolstered by the testi-
mony, uncontradicted , of the Machinists representatives to
this effect.
Likewise, introduced into evidence is a current agreement
between the Greater St. Louis Automotive Association, Inc.
and the Teamsters which describes units with the associa-
tion members much as described in the unit demand of the
Teamsters February 22 request for recognition . Thus, I find,
that , historically, the Teamsters in the St. Louis area have
represented employees in the categories described in its re-
quest for recognition.
Thus I find that the following unit claimed by the Ma-
chinists is a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All automobile truck mechanics and machinists ex-
cluding parts men, lubrication men, porters, truckdriv-
ers, salesmen , office clerical and professional employ-
ees, guards and supervisors as defined in the Act.
I further find that the following unit claimed by the
Teamsters is a unit approprate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act:
All parts men, lubrication men, and truckdrivers ex-
cluding automobile and truck mechanics and machin-
ists, salesmen, office clerical and professional employ-
ees, guards and supervisors as defined in the Act.
2. The majority status of the respective Unions
At the time of the request for recognition made by the
Machinists, the Respondent had four employees in the clas-
sification covered by the Machinists unit description. All of
these employees were mechanics and all of them signed
cards entitled "Membership Application for the Machin-
'o N LR.B v. Fant Milling Company, 360 U .S. 301; Rhode Island, Inc., 132
NLRB 1534.
563
ists" on February 15, 1972. These employees are Jack T.
Scott, Franklin D. Cupples, Timothy J. Harrington, and
Stanley W. Pinski . All of these employees testified that they
had signed the cards, that they had read them, and that they
knew what they were signing at the time they signed them.
The cards , in addition to being applications for membership
in the Machinists, also clearly state on the face thereof "you
are hereby authorized to act as my representative for collec-
tive bargaining."
Jack Scott testified, without contradiction, that Timmer-
berg told him before he signed the application for member-
ship that it was an application for membership in the
Machinists and that it entitled the Machinists to bargain for
the employees and that it could be used in an NLRB elec-
tion later on. The Respondent did not adduce any affirma-
tive proof that the employees were told anything before
signing the cards which would constitute misrepresentation
or coercion . Accordingly, I find and conclude that the cards
are proper designations of the Union by the four individu-
als, above named , of the Machinists as their bargaining
representative.
The Respondent claims , however, that the employees did
not really intend when they signed the cards to have the
Unions represent them but were merely applying for mem-
bership and that they were undecided at the time whether
to "go union." Respondent cites in support -of this the testi-
mony to the effect that after signing the union cards, in their
conversations with Service Manager Scott and with Vice
President and General Manager Joe Graneto , the men were
still bargaining for themselves and that at the earliest, the
Unions did not represent them until shortly before the strike
when, on February 2, at the meeting with Timmerberg and
Porterfield it was announced that Timmerberg and Por-
terfield would again request recognition and, if refused,
would call a strike. This contention is without merit. The
mere fact that the employees bargained directly for a period
of time with the Respondent 's representatives was no more
than they were entitled to do under the Act even though
represented by a labor orgainization . It should be noted that
none of the employees revoked their cards at any time and
fully supported the union movement when the strike was
called.
Respondent further apparently contends that the cards
were tainted because the initiative for the union movement
came from Service Manager Tom Scott, a supervisor. How-
ever, Scott took no part in any union meeting and further-
more , did not induce the employees to designate the
Machinists or the Teamsters as their bargaining representa-
tives nor did he solicit the signing of the cards. Under these
circumstances the cards cannot be held to have been taint-
ed.11
Respondent also employs , from time to time, an air con-
ditioning mechanic who works in the evenings only. There
is no showing in the record to support a finding that this
individual is a regular part-time employee . Accordingly, he
is not included in the unit.
Thus, it is apparent that on February 15 and at all times
thereafter the Machinists enjoyed majority status and repre-
sented all of the four employees in the unit hereinabove
11 See Juniata Packing Company, 182 NLRB 934, 935.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found to be appropriate for the purposes of collective bar-
gaining by the Machinists. I further find that at all times
since February 15, 1972, and continuing to date, District 9
has been the representative for the purposes of collective
bargaining of the employees in the aforesaid unit and is the
exclusive bargaining representative of all the employees in
said unit for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
Within the framework of the unit hereinabove found to
be appropriate for representation by the Teamsters the Re-
spondent employs James Hutch and Joe Kelley, porters,
Gary Emas, parts man, Gary Reed, lubrication man. There
is also another employee in the Respondent's employ, Al
Landreth, an over-the-road truckdriver whose sole duty is
to pick up the new automobiles which the Respondent sells
at the ports of debarkation such as New Orleans, Louisiana,
and truck these new cars to the Respondent 's place of busi-
ness. His contact with the Respondent 's other employees is
minimal at best. The Teamsters is not affirmatively seeking
to represent this over-the-road truckdriver as part of its
service department unit . Accordingly, he is excluded be-
cause it is not shown that he is under the same supervision
as the other service department employees, his contact with
them is minimal and on the evidence presented by Respon-
dent he does not have any significant community of interest
with the porters, parts man, and lube man who constitute
the unit sought by the Teamsters.
Therefore it is found that the unit sought by the Team-
sters, as hereinabove set forth, consists of four employees
and of these four employees three signed application cards.
Emas and Reed signed application cards for membership in
the Teamsters on February 21, 1972. This card also contains
words as follows "and designate it as my representative for
purposes of collective bargaining, hereby revoking any con-
trary designation." As in the case of the Machinists, Por-
terfield, the business representative of the Teamsters, made
no inaccurate representation nor did he induce the employ-
ees to sign cards in a fraudulent or coercive manner. These
employees testified they signed the card voluntarily and
knew what they were signing. Although Reed had also
signed a card designating the Machinists as his bargaining
representative, it should be noted that at that time he was
informed by Machinists Representative Timmerberg that
his status was not quite clear and that there was a good
chance he would have to join the Teamsters, rather than the
Machinists . Inasmuch as Reed's primary assignment was
lubricating cars and inasmuch as he only helped mechanics
infrequently, he is properly in the unit represented by the
Teamsters. Moreover, the card he signed specifically states
that he revokes any contrary designation.
Accordingly, I find that Emas and Reed designated the
Teamsters Union as their bargaining representative when
they signed their applications for membership in the Team-
sters.
On February 22, 1972, Joe Kelly signed an application for
membership in the Teamsters similar to that signed the day
before by Emas and Reed. However, Kelley signed the card
in blank after discussing the purpose thereof with Emas who
gave him the card. Both Kelley and Emas testified that
Kelley knew the purpose of the card, Kelley having been a
member of a number of unions previously and at one time
having been a member of the Teamsters. Kelley gave Emas
the information necessary for Emas to fill out his card be-
cause Kelley is unschooled and obviously had difficulty in
filling out the card by himself. Thereafter, Emas immedi-
ately filled out the card at Kelley's direction although not
in Kelley's presence and turned the card over to the Team-
sters Representative Porterfield. Although Kelley did not
read his card, he obviously, from the testimony, understood
what the card was for and signed it after his conversation
with Emas. I therefore conclude and find that Kelley by
signing the card under the circumstances designated the
Teamsters as his bargaining representative and that, there-
fore, Kelley's card should be counted.12 Although Kelley
went out on strike on March 6 with the rest of the employ-
ees, he returned to work 2 days later. His abandonment of
the strike is not construed as withdrawal of his authoriza-
tion of the Teamsters as his representative because he took
no steps whatever to revoke his card.13 Nor did he testify at
the hearing that he did not desire the Teamsters to represent
him.
By reason of all of the foregoing, I find that since Febru-
ary 22, 1972, the Teamsters have represented a majority of
three out of the four employees in the unit which is claimed
and which is hereinabove found to be appropriate for the
purpose of collective bargaining. I further find that these
employees designated and selected the Teamsters as their
representative for purposes of collective bargaining with the
Respondent and is now the exclusive representative of all
such employees in the said unit.
The Respondent makes one further argument with regard
to the cards signed by the employees and the majority status
of the two unions involved. The Respondent claims that the
unions do not represent the employees because at the time
of the hearing there was no indication that the employees
had been accepted into membership in either of the Unions.
The Board has found that this does not in any way invali-
date the delegation of authority appearing on the face of the
cards.14
3. Concluding findings as to the refusal to bargain
It has heretofore been found that the Respondent has
engaged in numerous unfair labor practices in violation of
the Act. The conduct of both Service Manager Tom Scott
and Vice President and General Manager Joe Graneto dem-
onstrate that the Respondent, upon learning of the pending
unionization of its employees, set out on a course of conduct
to prevent representation of its employees by the two Unions
involved herein. This attitude of the Respondent was fur-
ther demonstrated by the discriminatory discharges of em-
ployees Emas and Cupples in violation of Section 8(a)(3) of
the Act. Respondent further demonstrated its antiunion
motivation when Joe Graneto refused to even talk to the
union representatives when they appeared at the
Respondent's premises on March 6. Because both the Ma-
chinists and the Teamsters possessed majority status in their
12 j. P. Stevens, & Co, Inc. Gultsian Division, 179 NLRB 254, 269.
13 Easton Packing Company, 180 NLRB 1092.
14 Tower Enterprises, Inc, d/b/a Tower Records, 182 NLRB 382.
GRANETO-DATSUN
respective separate appropriate units, this conduct on the
part of the Respondent heretofore recited indicated its bad
faith in refusing to recognize and bargain with the Unions
in accordance with their requests for bargaining. Accord-
ingly, I find and conclude that the Respondent has failed
and refused to bargain with the Unions in violation of Sec-
tion 8(a)(5) and (1) of the Act.15 Moreover, this conduct is
sufficient upon which to base a conclusion that the holding
of any fair election has been rendered impossible as a means
of determining the employees desires for representation.16
By reason of all of the foregoing, I find that a bargaining
order is warranted.
There remains one final contention of the Respondent
requiring disposition. As noted heretofore the Respondent
inferentially contends that it is not obliged to bargain with
the Machinists by reason of the damage to its property
caused at a time 2 years before the events herein when the
Machinists were conducting an informational picket line at
the Respondent's premises and when Timmerberg appeared
on the said picket line. I find this contention to be without
merit. The evidence with regard to this matter does not show
that either Timmerberg or any other representative of the
Machinists was responsible for bullet holes found in the
Respondent's automobiles. Therefore, on this basis alone,
there is no merit to the Respondent's contention, aside
from any other reasons why the Respondent's argument in
this respect cannot be sustained.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be rec-
ommended that it cease and desist therefrom and take cer-
tain affirmative action, set forth below, designed to
effectuate the policies of the Act.
It having been found that the Respondent by threats,
interrogation, and promises of benefits interfered with, re-
strained, and coerced employees in violation of Section
8(a)(1) of the Act, I shall recommend that the Respondent
cease and desist therefrom. It having been found that the
Respondent discriminatorily discharged its employees, and
then having reinstated them and having failed in reinstating
employee Gary Emas to his former or substantially equiva-
lent position, and having then discharged discriminatorily
the said Franklin Cupples and Gary Emas, I shall recom-
mend that Respondent offer Cupples and Emas immediate
15 Merritt Motor Company, 181 NLRB 1099; Bauman Chevrolet, Inc, 173
NLRB 474.
16 N.L.R.B. v. Gissel Packing Company, 395 U.S. 575.
565
and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges. In addition, I shall recommend that
the Respondent make Cupples and Emas whole for any loss
of earnings they may have suffered by reason of the discri-
mination against them by payment to each of them a sum
of money equal to that which they would normally have
earned from the date of their discharge, less net earnings
during said period. Backpay shall be computed with interest
on a quarterly basis in the manner described by the Board
in F. W. Woolworth Company, 90 NLRB 289, 291-294, and
Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as
the employees were on strike at the time of the discharge,
I shall not order backpay for these employees during the
period from March 6, 1972, until their offer unconditionally
to return to work on May 24, 1972. Inasmuch as on that date
the employees were reinstated to their former jobs with the
exception of Emas and inasmuch as their salaries were the
same as that prior to the strike, there will not be ordered any
backpay for that period.
In view of the nature of the unfair labor practices herein
found, including discrimination, which goes to the very
heart of the Act, 7 there exists the danger of commission by
the Respondent of other unfair labor practices proscribed
by the Act. Accordingly, I shall recommend that Respon-
dent be directed to cease and desist from in any other man-
ner infringing upon the rights guaranteed in Section 7 of the
Act.
Having found that Respondent has unlawfully refused to
bargain with the Unions in good faith and has thereby
violated Section 8(a)(5) of the Act, I shall recommend that
the Respondent cease and desist from refusing to so bar-
gain, and shall further recommend that the Respondent
bargain, upon request, with each of the Unions for their
separate units and, if understandings are reached, embody
such understandings in signed agreements.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Graneto-Datsun, a Graneto Compa-
ny, is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, and Automotive, Pe-
troleum and Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8(a)(1)
of the Act.
4. By discriminatorily discharging its employees who
went on strike and by discriminatorily discharging thereaf-
ter employees Franklin Cupples and Gary Emas, the Re-
17 N L R B v Entwistle Mfg Co., 120 F.2d 532, 536 (C A 4).
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has violated Section 8 (a)(3) and (1) of the Act.
5. By discriminatorily withholding the paychecks of em-
ployees who went on strike, the Respondent violated Sec-
tion 8(aX3) and (1) of the Act.
6. All automobile and truck mechanics and machinists
excluding parts men, lubrication men, porters , truckdrivers,
salesmen , office clerical and professional employees, guards
and supervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
7. At all times since Februrary 15, 1972, District No. 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, has been the exclusive representative
of all employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, or other terms and conditons of em-
ployment.
8. All parts men, lubrication men, porters , and truckdriv-
ers, excluding automobile and truck mechanics and ma-
chinists, salesmen , office clerical and professional employ-
ees, guards and supervisors , as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
9. Since on or about February 22, 1972, Automotive,
Petroleum , and Allied Industries Employees Union, Local
618, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, has
been the exclusive representative of all the employees in the
aforesaid unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, or
other terms and conditions of employment.
10. By refusing since February 17, 1972, and February
22, 1972, respectively, and thereafter, to bargain collectively
with the aforesaid labor organizations as representatives of
the employees in their respective units, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:'s
ORDER
Respondent, Graneto-Datsun, a Graneto Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities and their attitude toward the Union , threatening
employees with reprisals including threats to close the ser-
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.
vice department if the employees select a union or unions
to become their bargaining representatives, threatening em-
ployees with physical harm in reprisal for their union activi-
ties, promising the employees benefits to induce them to
abandon their adherence to the Unions and by granting
employees benefits for the same purpose, and by giving
employees the impression of surveillance of the employees'
union activities.
(b) Discouraging membership in District No. 9, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, and/or Automotive, Petroleum, and Allied In-
dustries Employees Union, Local 618, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, or any other labor
organization , by discharging any employee for engaging in
protected union or concerted activity, by discriminating
against employees in any other manner including withhold-
ing of paychecks in regard to their hire and tenure of em-
ployment, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to form,
join, assist, or be represented by District No. 9 International
Association of Machinists and Aerospace Workers, AFL-
CIO and/or Automotive, Petroleum and Allied Industries
Employees Union, Local 618, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing or to engage in other concerted activity for the
purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any and all such activity ex-
cept to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(aX3)
as guaranteed in Section 7 thereof.
(d) Refusing to bargain collectively with District No. 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, and Automotive, Petroleum and Al-
lied Industries Employees Union, Local 618, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the exclusive repre-
sentatives of its employees in the following appropriate
units:
As to the Machinists-All automobile and truck mechan-
ics and machinists excluding parts men, lubrication men,
porters, truckdrivers, salesmen , office clerical and profes-
sional employees, guards and supervisors as defined in the
Act.
As to the Teamsters-All parts men, lubrication men,
porters, and truckdrivers, excluding all automobile and
truck mechanics and machinists, salesmen , office clerical
and professional employees, guards and supervisors as de-
fined in the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the act:
(a) Offer Franklin Cupples and Gary Emas immediate
and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges enjoyed, and make each whole for any
loss of earnings each may have suffered by reason of the
GRANETO-DATSUN 567
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all payroll
records, social security payment records and reports , and all
other reports necessary to analyze the amount of backpay
due under this order.
(c) Upon request, bargain collectively with District No.
9, International Association of Machinists and Aerospace
Workers, AFL-CIO, and Automotive , Petroleum and Al-
lied Industries Employees Union , Local 618 , affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive bar-
gaining representatives of the Respondent's employees in
their respective units found appropriate with respect to rates
of pay, wages, hours of employment , and other terms of
conditions of employment, and, if understandings are
reached with such unions , embody such understandings in
signed agreements with each union.
(d) Post at its automobile service department in Man-
chester, Missouri, copies of the attached notice marked
"Appendix."19 Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly signed
by Respondent's representative, shall be posted by Respon-
dent 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 Re-
spondent to ensure that said materials are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations of the Act
not found herein.
19 In the event the Board's Order is enforced by a Judgment of the 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."