Jim-Sandy Chevrolet

National Labor Relations Board - Board Decisions

Jun 7, 1984

270 N.L.R.B. 1081 (N.L.R.B. 1984)

JIM-SANDY CHEVROLET
Jim-Sandy Chevrolet, Inc. and and United Food and
Commercial Workers, District Local One, Peti-
tioner. Case 3-RC-8409
7 June 1984
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 26 May 1983 and the Hearing Offi-
cer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
5 for and 7 against the Petitioner, with no chal-
lenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing officer's findings' and recommendations
only to the extent consistent herewith.
The facts are as follows. Three days before the
election, the Employer's sales manager, Crowley,
held a sales meeting which was attended by unit
employees. The hearing officer found that unlike
the regular weekly sales meetings which lasted
about 30 minutes and dealt with the dealership's
business, this meeting lasted about 70-90 minutes
and dealt with employee working conditions. After
Crowley had distributed an antiunion campaign
letter, he asked employees to lay their cards on the
table and tell him what their problems were. The
hearing officer further found that when an employ-
ee asked Crowley about a pay plan in writing,
Crowley said he could not put one in writing be-
cause of other factors, and when asked about a lot
boy problem, he made no comments regarding any
improvement in that situation. Accordingly, the
hearing officer concluded that Crowley made no
express or implied promises about either the pay
plan or the lot boys.2
Crowley also responded to a question about a
health plan. The hearing officer discredited Crow-
ley's testimony about his response but credited the
testimony of three employees. The three credited
statements about Crowley's responses were that he
had said that he and Vice President Sandy Byers
I The Employer has excepted to certain credibility resolutions of the
hearing officer. It is the Board's established policy not to overrule a hear-
ing officer's credibility resolutions unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions are incorrect.
Conner Trading Co., 188 NLRB 841 fn. 4 (1971), Coca-Cola Bottling Co.,
132 NLRB 481, 483 (1961). We find no sufficient basis for disturbing the
credibility resolutions in this case,
No exceptions have been taken to the hearing officer's recommenda-
tion that the portion of the Employer's Objection 2 which relates to the
pay plan and to the lot boy problems be overruled.
270 NLRB No. 156
were looking into the "Blue Million Plan"; that
"we can't say exactly what we're trying to do be-
cause of the union proceedings but we are working
on a plan"; and that "nothing could be done now,
because of the union involvement." In quoting the
latter statement, the hearing officer left out the re-
mainder of the sentence following the word "in-
volvement." The entire sentence is "He said that
nothing could be done now, because of the, which
I can understand, union involvement and what not
before, nothing could be promised."
The hearing officer concluded that the Employer
interfered with the employees' choice in the elec-
tion by impliedly promising to provide employees
with improved health insurance benefits and rec-
ommended that the election be set aside. In so con-
cluding, the hearing officer found that despite any
assertions Crowley might have made about not
promising employees anything, such comments
would be construed by employees as doubletalk in
light of his other statements and lead them to be-
lieve that promises in fact were being made. The
Employer has excepted to the hearing officer's
conclusion that it interfered with employee free
choice by promising improved health insurance
benefits. For the reasons stated below, we find
merit in the Employer's exceptions.
In her discussion of the sales meeting before the
election, the hearing officer found that while the
pay plan was a "constant bitch" the Employer
never sought such complaints from employees
before, but this finding is not supported by the
record. Only Crowley and a unit employee testified
about the prior meetings. Crowley testified that
employee grievances were discussed at every meet-
ing and the employee testified that "[W]e would
just go over problems in the dealership . . ." and
that "[W]hoever has anything to say says it...."
Thus, the Employer apparently sought or at least
listened to employee complaints at its regular
Monday sales meetings.
At the preelection sales meeting, the Employer
heard three complaints: about a written pay plan,
about lot boys, and about a health plan. The Em-
ployer's responses to all three were similar. Crow-
ley said he could not put the pay plan in writing
because there were other contributing factors,
made no comment regarding any improvement in
the lot boy situation, and stated that he was look-
ing into a health plan, then further stated that noth-
ing could be promised. Discussion of the three
items was in response to questions and the discus-
sion of each consisted of acknowledgement of the
problem coupled with some indication that nothing
could be done.
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From all of the circumstances discussed above,
we conclude that the Employer made no expressed
or implied promises to improve health insurance
benefits. Thus, the hearing officer did not discredit
Crowley's testimony that he stated he did not
promise anything in response to a question about a
health insurance benefit plan. Further, as noted
above, the omitted portion of one employee's cred-
ited testimony quoted Crowley as saying that noth-
ing could be promised. Further, the Employer's
practice of listening to complaints at Monday sales
meetings rebuts any inference that the Employer
intended to grant grievances heard at the preelec-
tion meeting. Additionally, the hearing officer
found that Crowley made no expressed or implied
promise concerning the pay plan or lot boys.
Therefore, contrary to the hearing officer, we con-
clude that Crowley's comments would not reason-
ably be construed by employees as doubletalk and
thus would not lead them to conclude that a prom-
ise of improved health insurance benefits was in
fact being made.3 Accordingly we conclude that
' The hearing officer found that Crowley told employees he and Byers
were looking into Blue Million Plan, but could not tell employees what
they were going to do "because of the Union." The hearing officer there-
fore concluded that the Blue Million Plan was dependent on the Union,
leading employees reasonably to believe that, if there were no Union,
such a benefit would be forthcoming. It is clear, however, that the em-
ployee on whose testimony the hearing officer relied did not testify that
Crowley said "because of the Union" but rather testified Crowley said
"because of the union proceedings." We find that Crowley's reference to
the Petitioner's exception should be overruled and
the results of the election certified.
CERTIFICATION OF RESULTS OF
ELECTION
It is certified that a majority of the valid ballots
have not been cast for United Food and Commer-
cial Workers, District Local One and that it is not
the exclusive representative of these bargaining
unit employees.
MEMBER DENNIS, dissenting.
The Employer solicited grievances 3 days before
the election when he called a meeting of employees
and asked them to lay their cards on the table and
say what their problems were. In my view, the evi-
dence is insufficient to establish that this meeting
was merely a continuation of a previous employer
practice of soliciting grievances. Accordingly, the
hearing officer correctly reasoned that, under
Uarco Incorporated, 216 NLRB 1 (1974), the Em-
ployer must rebut the inference of promise that
arose from the solicitation. I am unable to conclude
on the record as a whole that the Employer suc-
cessfully rebutted the inference with respect to the
solicitation of the health plan grievance.
union proceedings, when considered as a whole and in context, does not
lead to the conclusion that if there were no Union the benefit would be
forthcoming, but was essentially a reference to the pending election.
1082