King Arthur Toyota, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 159 (N.L.R.B. 1974)

KING ARTHUR TOYOTA, INC.
King Arthur Toyota, Inc. and Automobile Salesmen's
Union Local 1095 , Retail Clerks International Asso-
ciation . Case 20-CA-8501
June 28, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 28, 1973, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and counsel for the General
Counsel filed a brief answering Respondent's excep-
tions and otherwise in support of the Administrative
Law Judge's Decision.
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 2 of the Administrative Law Judge and to
adopt his recommended Order.
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 modified
below and hereby orders that Respondent, King Ar-
thur Toyota, Inc., Fremont, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order as herein modified:
1. Delete paragraph 1(b) and reletter paragraphs
1(c) and (d) as 1(b) and (c).
2-Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i The 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 are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings
2 For the reasons stated by the majority in Steel-Fab, Inc, 212 NLRB No.
25, we do not adopt the Administrative Law Judge's finding that Respondent
violated Sec . 8(a)(5) of the Act, but rather enter a bargaining order as a
remedy for the serious unfair labor practices committed by Respondent We
shall modify the Administrative Law Judge 's recommended Order and notice
accordingly . Member Jenkins, for the reason stated in his dissent in Steel-
Fab, would find the violation of Sec. 8 (a)(5) and base the bargaining order
on that section as well as Sec. 8(a)(1).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
159
WE WILL NOT discourage membership in Auto-
mobile Salesmen's Union Local 1095, Retail
Clerks International Association, or any other
labor organization of our employees, by termi-
nating or discharging employees or otherwise dis-
criminating in regard to their hire or tenure or
terms and conditions of employment because of
their union affiliation or other protected concert-
ed activities, except to the extent authorized by
the proviso to Section 8(a)(3) of the Act, as
amended.
WE WILL NOT coercively interrogate any of our
employees with regard to their union member-
ship or affiliation, threaten them with reprisals
for engaging in union activities, or inform them
that they will be required to furnish evidence or
require them to furnish evidence that they are no
longer members of the Union as a condition of
employment with us.
WE WILL NOT in any manner interfere with, re-
strain, or coerce our employees in the right to
self-organization, to form labor organizations, to
join or assist Automobile Salesmen's Union Lo-
cal 1095, Retail Clerks International Association,
or any other labor organization, to bargain col-
lectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of mutual aid or protection, or to refrain
from any and all such activities, except to the
extent that said right may be affected by an
agreement requiring membership in a labor orga-
nization, as provided in the proviso to Section
8(a)(3) of the Act.
WE WILL offer Robert Patton, Joe Liotine, Jr.,
Walter Clinton, and Horace Overton immediate
and full reinstatement to their former positions
or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority and other rights and privileges,
and make each of them whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, in the manner set
forth in the section of the Decision entitled "The
Remedy."
WE WILL bargain collectively, upon request,
with Automobile Salesmen's Union Local 1095,
Retail Clerks International Association, as the
212 NLRB No. 42
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of all our employees in
the appropriate unit described below, with re-
spect to rates of pay, hours of employment, or
other terms and conditions of employment and,
if an understanding is reached, embody such un-
derstanding in a signed agreement . The appropri-
ate bargaining unit is:
All automobile salesmen employed by us at
our Fremont, California, location, excluding
all other employees, guards, watchmen and su-
pervisors as defined in the Act.
All our employee are free to become and remain or
refrain from becoming or remaining members of the
above-named labor organization or any other labor
organization.
KING ARTHUR TOYOTA,
INC.
(Employer)
Dated By
(Representative) (Title)
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, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge: The com-
plaint, issued on September 21, 1973, alleges that Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and
(7) of the Act. Specifically, the complaint alleges that Re-
spondent (1) on or about August 5 , 1973, by Sales Manager
Edward Salais, interrogated an employee regarding the
union activities of its employees , and, on or about August
8, informed an employee that no employee would ever be
permitted to work for Respondent unless he could prove
that he was not a member of the Union; (2) on or about
August 5, 1973, discharged named employees I because of
their union membership or activities ; and (3) since August
5, 1973, has refused to bargain collectively with the Union
as the exclusive representative of its employees in an appro-
priate unit despite the Union 's status as majority representa-
i Robert Patton , Joe Liotine , Jr., Walter Clinton , and Horace Overton.
tive 2 e
Respondent 's answer admits the procedural and jurisdic-
tional allegations of the complaint but denies the remaining
substantive allegations , including the appropriateness of the
unit.'
Pursuant to due notice, a prehearing conference was held
on October 17, 1973, before Administrative Law Judge
George Christensen, and a formal hearing, on October 30
and 31 and November 2, 1973, in San Francisco , California.
All parties were represented by counsel, were afforded full
opportunity to be heard , to examine and cross -examine wit-
nesses, to introduce oral and documentary evidence rele-
vant and material to the issues, to argue orally , and to file
briefs and proposed findings of fact and conclusions of law.
The parties waived oral argument but, pursuant to an exten-
tion of time duly granted , filed briefs on November 28,
1973. No proposed findings of fact or conclusions of law
have been filed by any of the parties.
Upon the entire record in the case , and based on the
appearance and demeanor of the witnesses , and the briefs
of the parties , which have been carefully considered, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent 's answer admits, and
it is hereby found that, at all times material herein, King
Arthur Toyota, Inc., a California corporation with a place
of business at Fremont , California , has been engaged in the
retail sale of automobiles . During the year preceding the
issuance of the complaint, in the conduct of its business,
Respondent received gross revenues in excess of $500,000.
During the same period, Respondent purchased and re-
ceived goods or supplies valued in excess of $50,000 from
suppliers located outside the State of California.
The complaint further alleges , Respondent's answer ad-
mits, and it is hereby found that, at all times material herein,
Respondent has been an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen's Union Local 1095, Retail Clerks
International Association, the Union herein, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act:
2 Designations herein are as follows. The General Counsel , unless other-
wise noted or required by the context , his representative at the hearing; King
Arthur Toyota, Inc, Respondent, the Company, or the Employer, Automo-
bile Salesmen 's Union Local 1095, Retail Clerks International Association,
the Charging Party , or the Union , the National Labor Relations Act, as
amended (61. Stat 136, 73 Stat. 519, 29 U S.C Sec. 151, et seq, the Act, the
National Labor Relations Board, the Board. The original charge was filed
on August 9, 1973, and a copy thereof, sent by registered mail on August 10,
was returned unclaimed It was stipulated, however, that a copy of the
charge, mailed on August 24, was received by Respondent on August 27.
Unless otherwise indicated, all events occurred in 1973
3 Subsequently admitted by stipulation at the hearing
KING ARTHUR TOYOTA, INC. 161
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Late in July 1973, Respondent's new-and-used car sales-
men decided to join the Union. Joe Liotine, Jr., one of the
salesmen, communicated with the Union and arranged a
meeting of the salesmen with the union representatives. On
August 1 a meeting was held at, a coffee shop in Fremont
attended by Union Representatives Ferd Silva and Ed Hill,
and Robert Patton, Joe Liotine, Jr., Walter Clinton, Horace
Overton, and John Parker.4 All the salesmen attending this
meeting signed valid authorization cards designating the
Union as their exclusive bargaining representative, and paid
the initiation fee and first month's dues. Silva informed the
salesmen that he would communicate with the Respondent
to negotiate a contract.
Next day, August 2, Silva prepared a letter notifying Re-
spondent that the Union had been designated by the sales-
men at its Toyota dealership in Fremont and requesting
recognition and a meeting on August 8, 1973, at 9 a.m. for
purposes of negotiating a collective-bargaining agreement.
The Union offered to submit to a card check in the event
Respondent entertained any doubt of the Union's majority
status. A covering letter, dated the same day, referred to the
enclosed demand and warned Respondent against any vio-
lations of the Act. Two sets of identical letters, addressed to
Mr. Art Bridges, King Arthur Toyota, Fremont, California,
and Mr. Art Bridges, Art Bridges Pontiac, Hayward, Cali-
fornia, were mailed on August 3, 1973, postage prepaid, one
sent by certified mail, the other by regular mail. All the
envelopes bore the Union's return address. The letters sent
by certified mail to Respondent's place of business in Fre-
mont were returned by the post office to the Union with the
notation, "Unclaimed." Although there is a controversy as
to the date of receipt of these letters, it is not disputed that
Respondent never acknowledged or replied to any of these
letters.
On Sunday, August 5, about 5 p.m., Respondent termi-
nated four of the five salesmen who had designated the
Union as their bargaining representative on August 1. Par-
ker was the only one among the group who was not termi-
nated on that date. Respondent disclaims any knowledge of
union activities of its salesmen prior to its decision to termi-
nate them, or at any time prior to August 7, when it claims
it first learned of the Union's demand for recognition.
On Saturday, August 4, Bridges was not at the agency.
The salesmen had been expecting the Union's letter de-
manding recognition to be delivered that day. Mail deliv-
ered to Respondent's agency on Saturday was ordinarily left
in the finance office and was not turned over to the office
manager until the following Monday. On this occasion,
salesmen who went into the finance office in connection
with deals they were working on observed an envelope bear-
ing the Union's return address lying on top of the stack of
mail. Of the salesmen, Overton, Liotine, Patton, and Clin-
ton saw the envelope and mentioned it,to Parker. Parker,
however, could not recall whether he actually saw the enve-
lope himself. According to Overton, he noticed the letter
while looking through the mail for car option slips. Sales
Manager Salais, who was in and out of the finance office
substituting for Richard Dobkins, the finance and insur-
ance manager who was on vacation, testified that he did not
recall seeing the mail that day, but, according to Overton,
he remarked to Salais, "Oh, a letter from the Salesmen's
Union. Art [Bridges] must be having trouble in Hayward." S
Salais made no response, though, according to Patton, Sa-
lais looked at the envelope. The union letter, the salesmen
testified, remained with the stack of mail all that day and,
according to Clinton, was there when he left that night. It
was still there unopened the following morning, Sunday,
August 5, he testified, when he want into the finance office.
About 11 or 11:30 that morning, Bridges arrived at the
agency. Shortly afterward, Bridges went into the finance
office. Clinton testified that he had been in the finance
office some 15 minutes earlier and that no one else had
entered the office in the interim. The salesmen were point-
edly watching to see whether Bridges would open the letter.
According to them, Bridges opened the letter which had
been lying on top of the mail and after apparently reading
it left for his private office with the letter in his hand. Clin-
ton went into the finance office after Bridges left and dis-
covered that the union letter was gone. Liotine then
remarked, "He's got the letter." 6
Bridges denied seeing the union letter on Sunday, August
5, insisting that he had no knowledge of union activities or
the demand for recognition until Tuesday morning, August
7, when he saw the letter, which had been sent to him by
certified mail, at the Pontiac agency in Hayward. Bridges
testified that he arrived at the Toyota agency about noon on
Sunday and went directly to his private office. About 45
minutes later, he went into the finance office and while
there, according to him, took two letters out of his pocket
and telephoned his wife to discuss plans for a scheduled trip
of Toyota dealers and their wives to Hawaii. Bridges con-
ceded that he had received an announcement of the trip the
previous Thursday or Friday. On the Sunday in question, he
had driven from his home in San Leandro directly to the
agency in Fremont. It is, therefore, surprising that he would
have waited until he reached his office after just having, left
his home to discuss the trip with his wife on the telephone,
especially as he had known of the trip for several days.
To support Bridges' denial that he saw the union letter on
Sunday or at any time before Tuesday, morning, August 7,
Respondent offered the testimony of Dennis A. Hall, its
service manager. Hall testified that mail received on Satur-
day is customarily delivered to the showroom and left on the
5 Bridges also owned and operated an automobile agency known as Art
Budges Pontiac in Hayward, which, as a member of an association, had a
collective-bargaining agreement with the Union. Overton's reference to the
automobile agency in Hayward instead of the one in Fremont could have
been prompted by his reluctance to disclose the unionization of the salesmen
4 Stu Holt, another salesman, was on vacation at the time , and John Camy before Respondent was apprised of the, Union's demand for recognition.
terminated his employment with Respondent between July 15 and August 1 6 Respondent argues that the General Counsel's failure to call Liotine as
Camy was later hired by Art Bridges Winnebago, a corporation of which a witness compels the inference that his testimony would not have supported
Arthur Bridges, Respondent's president, and his wife are also principal stock- the General Counsel's case Such an inference is unwarranted in view of the
holders mutually, corroborative testimony of the General Counsel's other witnesses.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desk in the finance and insurance office. The mail is later
transferred to the main office, usually by him, Salais, or
Dobkins, where it remains until opened by the office man-
ager on Monday. On the Saturday in question, about noon,
Hall testified, he took the mail from the finance office to his
own office in the service department. There he removed
some large gray envelopes, containing service bulletins and
similar material from the Toyota distributor, and left the
rest of the mail on his desk. He did not follow the usual
procedure of taking the mail to the main office because, he
testified, the rear door to that office was locked from the
inside. Although he admittedly had a key to the front door,
he testified that he would have been obliged to cross a
driveway to reach the building in which the office was locat-
ed. Instead, he left the mail on the desk in his office. Because
of his preoccupation with his paperwork, the mail remained
on his desk the rest of the day.
Hall did not work on Sunday. When he went to work on
Monday, according to him, the Saturday mail was still on
his desk. Again, he became involved in his duties and forgot
to deliver the mail to the main office until Tuesday morning,
when he finally turned it over to Katherine Beatty, the office
manager. According to Hall, the incident was impressed on
his mind because Beatty had been upset with him for hold-
ing up Saturday's mail, which had contained the firm's bank
statements.
Hall's testimony regarding his handling of the Saturday
mail would, of course, if true, preclude any finding that
Bridges could have seen the union letter on Sunday. It is
significant, however, that neither Hall nor the office manag-
er was able to recall that the union letter was in the Saturday
mail when it was delivered to Beatty on Tuesday. Consider-
ing the importance of establishing that Bridges did not actu-
ally see the letter on Sunday, the lack of recollection on so
crucial an issue impels the conclusion that the letter was not
there. This lends credence to the circumstantial evidence
that Bridges did, in fact, see the union letter on Sunday, and
did not replace it with the rest of the mail after reading it.
Hall's explanation for his failure to deliver the mail- to the
office manager until;Tuesday morning was so strained and
unconvincing as to cast grave doubt upon the rest of his
testimony. Regardless of what the usual practice may have
been relative to the disposition of Saturday mail, Hall's
testimony as to this occasion appears to have been elabo-
rately contrived to lend credence to Bridges' testimony that
he was unaware of the Union's demand for recognition until
August 7.
While there is no direct evidence that the letter which
Bridges was seen reading was, in fact, the Union's demand
letter, the circumstantial evidence warrants such a finding.
In the first place, all but one of the salesmen working that
Saturday testified that they actually saw the envelope ad-
dressed to Respondent, and bearing the Union's return ad-
dress, lying on top of the mail in the finance office. The
letter, mailed on August 3, would normally have been deliv-
ered in the usual course of the mails, by Saturday. The letter
remained undisturbed the rest of that day and the following
day until Budges went into the finance office. Moreover,
Overton's remark to Salais, calling attention to the letter on
Saturday, was not specifically denied. On Sunday, when
Clinton went into the finance office, shortly before Bridges
went there, the letter was still lying on the stack of mail.
When Clinton went back, after Bodges left the finance of-
fice, the union letter was no longer there. It was then that
Liotine announced spontaneously, "He's got the letter," an
obvious reference to Bridges. Based on the foregoing, and
a resolution of the conflicting testimony, especially when
considered in light of the events presently described, it is
found that Bridges did, in fact, read the union letter de-
manding recognition while he was in the finance office on
Sunday.
Salais arrived at the agency on Sunday at 12:30 or 1 p.m.
Almost immediately, he and Bridges left together and went
to the Cloverdale Creamery across from the automobile
agency. The two men did not return until about 4 p.m. The
record is silent as to the reason for their extended absence
from the agency but, in view of subsequent developments
that afternoon, presently discussed, it is reasonable to infer
that the subject of the Union was discussed between the
men during this interval.
B. Interference, Restraint, and Coercion
When Salais returned to the agency about 4 p.m., Parker
asked him to appraise a truck which was being traded in.
Salais told Parker that he did not consider it necessary since
the vehicle had already been appraised, but finally agreed,
and he and Parker drove off in the truck. After driving a
while, Salais stopped to inspect the truck. It was then, ac-
cording to Parker, that Salais asked him, "Are you involved
in this union thing? Level with me, John." Parker said,
"Well, you know I will. Yes, I am." Salais continued, "Ev-
erybody?" Parker replied, "Well, everybody except Stu Holt
[who was on vacation]." Salais persisted, "Paul [Horace]
Overton?" Parker said, "Yes, Paul-everybody." Salais ex-
pressed his indigation by uttering a four-letter word obscen-
ity, and the men drove back in silence?
It is, therefore, found that, by Sales Manager Salais' inter-
rogation of Parker for the purpose of ascertaining the views
and sympathies of its salesmen with regard to affiliation
with the Union, and by Salais' remarks on that occasion,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act s
7 At first, Salais testified that he had no recollection of any such conversa-
tion. Later, when pressed to explain whether he meant that he had no recol-
lection of the incident or whether the incident did not occur, he denied the
remarks attributed to him. Salats' attitude and demeanor on the witness stand
was equivocal and unconvincing. Parker was not terminated on August 5,
with the other salesmen, but continued in Respondent's employ until Septem-
ber 13, 1973, when he left voluntarily. No motive has been suggested for
Parker to have fabricated this incident out of whole cloth In fact, Parker
testified that, when he acknowledged to Salais that he was involved in the
union activity, he added, "I wish to hell I hadn't been involved," which could
have accounted for the fact that he was not terminated with the others. It is
found that Salais interrogated Parker and made the remarks Parker attribut-
ed to him as found above This incident lends further support to the conclu-
sion that Bridges had read the Union's demand letter earlier that day and
had discussed it with Salats while they were away from the agency Sunday
afternoon No explanation was offered as to how Salais could otherwise have
gained knowledge of the union activity of the salesmen.
8 Struksnes Construction Co., Inc., 165 NLRB 1062; Fontana Bros., 169
NLRB 368
KING ARTHUR TOYOTA, INC. 163
C. Discrimination in Regard to Hire and Tenure of Em-
ployment; Further Interference, Restraint, and Coercion
Normal closing time on Sunday was 6 p.m. About 10
minutes before then, on earlier instructions from Bridges,
Salais told the salesmen not to leave because there was
going to be a meeting at 6 o'clock. At the appointed time,
Patton, Parker, and Liotine met with Bridges and Salais in
the finance office. Due to the confined quarters, Bridges
stood in the doorway, while Salais acted as spokesman for
the Company. Salais announced that the reason for the
meeting was that the Company had no automobiles and did
not know when it would be receiving any more. He an-
nounced that it would be necessary to terminate some of the
salesmen. Looking at Liotine, Salais told him that he was
being terminated as of that day. He then turned to Patton
and told him that he, too, was being terminated. After a
pause Patton asked Salais whether Clinton, who had not
been working that day, was included in the terminations.
Salais answered that he was. Salais told the men that, in
making the terminations, the Company would be guided by
seniority, and Salais said because of Parkers seniority he
would not be affected. This would leave the Company with
Salesmen Holt and Parker, and Richard Dobkins, the fi-
nance and insurance manager, who was being assigned to
"the floor" selling cars. Parker asked Bridges why no cars
were available and remarked, "What the hell is wrong with
the Japs-don't they want the biz now that the dollar is no
good?" Bridges rejoined, "You should have asked the Em-
peror of Japan. He was just here but he's gone back now." I
Parker than ventured, "Is it because of this Union thing?"
Bridges left somewhat abruptly, without replying, and
walked some 40 feet to another office, assertedly to extin-
guish his cigar. Salais told the salesmen to turn in their
demonstrator cars and to return next day to have the office
manager compute their earnings.
That evening Overton learned of his termination from the
other salesmen. When Salais telephoned Overton later that
night and notified him of his termination, Overton went to
the automobile agency and asked Bridges if there was any
special reason for his termination. Bridges said, somewhat
curtly, "No cars." Overton asked him if he was the only
employee being laid off. Bridges replied in the negative and
told him that there were some employees "out front" and
some "out back," presumably referring to the service de-
partment mechanics, who were also being terminated. Over-
ton asked permission to retain his demonstrator car for
another day, and Bridges agreed.
It is conceded that none of the salesmen had been notified
in advance of the possibility of a reduction in sales staff. The
record establishes, however, that there is no policy in the
automobile agency business of giving such notice.
About 10:30 or 11 o'clock, next day, August 6, Patton
went to Respondent's agency to inquire about his final
check. According to Patton, none of the office employees,
including Office Manager Beatty, was aware that the termi-
nations had taken place. Patton asked Salais whether the
checks had been made out, and Salais told him that he did
9 Although Parker did not specifically recall Bridges' response , other sales-
men who were present attributed that remark to Bridges
not know whether the office had been notified of the termi-
nations. Salais then remarked, "If you have any beefs, why
in the world didn't you come to me instead of going to the
Union?" Patton told him that the salesmen felt they could
receive no help from Salais, that they had tried to enlist his
aid in the past and had decided that it would be necessary
to resort to other methods.
About noon Overton had a conversation with Salais in
the agency. According to Overton, Salais asked him, "What
are you guys up to?" Overton said, "Oh, not much." There-
upon Salais remarked, "You know its hard to beat a man
at his own game." Overton replied, "Well, that's not for us
to decide." Salais continued, "Well, you know it's going to
take a long time," presumably referring to the unionization
of Respondent's salesmen. Overton rejoined, "Well, there
again, it is not for us to say."
That afternoon, about 3:30 p.m., Patton spoke to Salais
in the finance office, in Chnton's presence. Both men told
Salais that they wanted to work, that they knew that there
were "plenty of cars" to sell, and that if Salais needed any-
one or decided to put anybody back to work they would be
available. Salais retorted, "You blew it," an obvious allusion
to their decision to choose a bargaining agent.
The following day, Tuesday, August 7, Patton returned to
the agency to inquire about his check. Again, he spoke to
Salais in the finance office. Salais mentioned facetiously
that he had received a job inquiry about Patton and that
Business Representative Silva wanted to pay him $1,000 a
month to work for the Union. Patton laughed the matter off
and, in the same vein, asked what kind of recommendation
Salais had given him. Salais smiled but made no further
comment. The pleasantries over, Patton asked Salais what
his chances were of ever coming back to work there. Salais
said, "There would be no chance of you ever coming back
here unless you could come in here and prove that you had
never contacted the Union or had no part of this union." io
It is, therefore, found that, by Salais' interrogation of and
statements to Patton on the morning of August 6 and by his
statements to Overton about noon the same day, and to
Patton, in Clinton's presence, later that afternoon, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(1).
Respondent's contentions
Respondent contends that it terminated the four sales-
men solely because of economic necessity due to a shortage
of new cars. Moreover, it asserts that the decision to termi-
nate these employees was reached on August 3, before it
could possibly have gained knowledge of the employees'
10 Asked whether he recalled any discussions concerning union activities
with any of the salesmen on the day of their termination or the following day,
Salais testified , "No, I don't." He did not otherwise deny any of the state-
ments attributed to him by Patton or Overton In view of the uncontroverted
and credible testimony of Patton and Overton, and Salais' failure to categon-
cally deny the statements attributed to him, it is found that he made the
statements as testified to by Patton and Overton This evidence, coupled with
Parker's testimony regarding his conversation with Salais the previous Sun-
day, reinforces the conclusion regarding Respondent's knowledge of the
union activities of its salesmen prior to their discharge
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities. The record establishes the following.
On July 6, Toyota Motors Distributors, Inc., which
served the sales agencies in the San Francisco region, in-
cluding Respondent, notified its dealers by circular letter
that its original projection for the allocation of 4,000 1974
cars to all its dealers for the months of July through Septem-
ber (2,000 each for the months of July and August), would
be reduced to 1,650 for the month of July. The notice,
however, assured the dealers that, "total availability" of cars
for the 3-month period would still be, "in the 4,000 range."
On July 31, the distributor followed up with another let-
ter, notifying the dealers that due to the rescheduling of a
vessel, the distributor had ended the month of July with
approximately 1,800 units, "dealer wholesaled," instead of
the 1,650 previously estimated. The letter also predicted
approximately 1,500 units for the month of August but cau-
tioned that due to the scheduled arrival of the bulk of those
units on August 16, it would not be possible to ship any of
those units until the week of August 20. The letter contin-
ued:
At this time, we do not have a manifest for September
arrival of 1973 models. However, initial shipping ad-
vice indicate [sic] there will be units available to sup-
port the total availability we discussed with you; and
as the final numbers are available, we will advise you.
In an updated report on August 31, the distributor wrote
its dealers confirming that it had "wholesaled approximate-
ly 1,500 units," during August, as projected. With regard to
September, the distributor advised that due to uncertainty
of shipping schedules, the first shipment of September units
would not be shipped from the port until sometime during
the week of September 17.
On October 2, the distributor advised its dealers that, due
to problems relating to California emission control and
other, "minor items," initial shipments of 1974 units had
fallen behind original estimates. The distributor estimated
that it would ship some 250 1974 models and 325 1973
models during the period October 10 to 20 to be allocated
among the dealers, and added, "It now appears that these
problems are being resolved, and October, November and
December production will approach the original production
schedule."
We are concerned primarily, however, with the situation
which prevailed on or about August 5, when the termina-
tions were made. On a pro rata basis, and without regard
to the fact that, as one of the largest dealers in the region,
Respondent would have been entitled to a larger allocation,
Respondent's share would have amounted to at least 30 of
the total of 1,800 cars available in July, and 27 of the 1,500
in August.
On August 3, Christopher R. Harvey, the distributor's
district manager, called at Respondent's dealership, and
met with Bridges, Salais, and Hall, Respondent's service
manager, to discuss customer relations. The meeting contin-
ued over lunch, during which the availability of new 1974
cars was discussed. Harvey testified that ordinarily he could
determine the number of cars which would become avail-
able to each dealer 3 to 4 weeks in advance but that recently
this period had been reduced to as few as 3 days. Harvey
informed the company representatives that, according to
projected delivery dates, Respondent could be assured of
approximately 14 new cars in August, 9 in September, and
14 or 15 in October. Harvey stressed that these figures repre-
sented estimates based on available information but added
that, from previous experience, the estimates were probably
on the low side and that they could expect 30 cars in No-
vember. Harvey also indicated that the shortage of 1974
models should be overcome by late October or early No-
vember, and a normal inventory of 60 days' supply reached
in February or March. This would amount, in Respondent's
case, to between 120 and 140 cars. Under normal circum-
stances, according to Harvey, Respondent could expect de-
livery of 60 to" 90 cars per month. As of August 1,
Respondent had an inventory of 44 new cars, a 24-day
supply. From January through September 1973, Respon-
dent had received an average of 46 new cars per month.
Despite Harvey's dire projections, Respondent actually
received 42 new cars in July, 32 in August, and 31 in Sep-
tember. The number received in May was 63, and 44 in
June. According to Harvey's analysis of Respondent's re-
cords, Respondent's new-car inventory declined from 98 or
100 in January to 27 in September.
Harvey also testified that it would have been feasible for
Respondent to operate its business employing only two or
three salesmen from August to the time of the hearing. In
Harvey's opinion, Respondent had consistently employed
more salesmen than necessary except during months when
its inventory consisted of 120 cars. According to Harvey,
some dealers whom he serviced sold 30 to 40 cars a month,
employing only two salesmen, and others, comparable to
Respondent, operated with only two salesmen and a sales
manager. Harvey's testimony, however, proves too much
for it is unreasonable to believe that Respondent would
have employed as many as seven salesmen when all it re-
quired was three salesmen to handle its volume of sales.
Respondent contended at the hearing that, in order to
operate profitably, it should sell between 65 and 70 new and
used cars per month, utilizing from five to seven salesmen.
According to Bridges, when cars had been in short supply
in the past, the Company had operated with a smaller sales
force. Thus, according to him, prior to the maritime strike
in 1970 or 1971, Respondent had employed five or six sales-
men. During this strike, which resulted in a shortage of cars,
Respondent reduced its sales staff to three salesmen. Two
of these salesmen, however, had left voluntarily, and one
was terminated.
Bridges maintained that in the present instance the sales-
men were terminated to reduce overhead. This was to be
accomplished by eliminating the four salesmen and assign-
ing Dobkin, who had been receiving a salary of $1,200 a
month, to work as a salesman, on commission only." At the
11 Dobkms was on vacation from July 27 to August 13. Since Respondent
did not reach its decision to curtail its sales staff until August 3 at the earliest,
it is wholly improbable that Dobkin was told before he left on vacation,
according to his testimony, that he would be assigned to the floor selling cars
upon his return . Moreover, according to the August payroll, Dobkins was
still being carried at a monthly salary of $1,200 Dobkin' overall testimony
manifested a determination to substantiate Respondent's position irrespec-
tive of the facts and did not inspire credence.
KING ARTHUR TOYOTA, INC. 165
same time , according to Bridges , Sales Manager Salais
would also be selling cars, thereby eliminating the payment
of commission on his sales. It should be noted, however,
that the salesmen who were terminated worked solely on
commissions , receiving an advance or draw of $300 a
month, which they were obliged to repay if their commis-
sions did not exceed their draw. Although this would have
entailed an outlay by Respondent, it would have resulted in
no financial loss to it. In virtually every instance, salesmen's
commissions far exceeded their draw , and in the rare in-
stance where this did not occur , the salesman was charged
with his overdraft.
Moreover , despite Respondent 's contention that its deci-
sion to terminate the salesmen was based on projected esti-
mates of the number of new 1974 cars which would be
available in the coming months, the record discloses that it
had a supply of new 1973 Toyota cars in July and August.
In July, Respondent's inventory of cars amounted to 206,
consisting of 79 new and 127 used cars. In August, the
supply amounted to 179 cars, 76 new and 103 used. On this
basis, Respondent could have used as many as 10 or 13
salesmen, since Bridges testified that a salesman could be
expected to dispose of between 10 and 17 cars a month. In
addition, according to Bridges, Respondent had on hand a
24-day supply of new cars as of August 5. It will be recalled
that, despite District Manager Harvey's guarded estimates
as to the number of new cars which would be available to
Respondent, i.e., 14 in August; 9 in September; and 14 or
15 in October, the distributor, in its letters to the dealers,
had projected the equivalent of at least 30 cars in July and
27 in August. As it turned out, these predictions more nearly
corresponded with actual deliveries (42 in July; 32 in Au-
gust ; and 31 in September). Also, as projected by the distri-
butor, deliveries became normalized late in October or
November.
It is significant that Respondent 's witnesses Harvey, Hall,
and Dobkins acknowledged that shortages of new models
had been experienced as far back as October 1969. Figures
submitted by Respondent established that in May 1972 it
had received only 3 new cars; in June 1972, 30; in July 1972,
15; in September 1972, 33; and in April 1973, 6. Neverthe-
less, Respondent employed between five and seven sales-
men during these intervals.
As for Respondent's contention that it decided to curtail
the sales force on August 3, following the meeting with
District Manager Harvey, the testimony was that Bridges,
Salais, Hall, and Beatty held their regular monthly financial
meeting directly after Harvey left. Discussion centered on
possible action which might be, undertaken to reduce over-
head in the event the anticipation of a shortage of cars
materialized. The possibility of reductions in staff, as well
as curtailment of other expenses , such as janitorial services
and reductions in the sales, service , and office departments,
were discussed but no decisions were made.
After Hall and Beatty left the meeting , Bridges and Salais,
according to their testimony, reviewed the employment re-
cords of each of the salesmen and decided to terminate the
salesmen on the basis of seniority , retaining Parker and
Holt, and assigning Dobkins, the finance and insurance
man, to the sales floor.12 The testimony that the decision to
12 Actually, the selection was not based on strict seniority and raises seri-
terminate the salesmen was made on August 3 because Sun-
day, August 5, was the end of the workweek, and all the
salesmen would be at work that day, does not comport with
the fact that Respondent operated on a biweekly payroll on
the 15th and end of the month. Moreover, Overton never
worked Sundays, and Clinton did not work on the af-
ternoon and evening of August 5, as Salais was well aware.
The preponderance of the credible evidence establishes
that the decision to terminate the salesmen was not made
until the afternoon of August 5, probably while Bridges and
Salais were away from the agency for several hours, and
after Respondent learned that the salesmen had authorized
the Union to represent them. Although the subject of possi-
ble reductions in staff may have been discussed while Hall
and Beatty were present at the meeting on August 3, no
decision had been reached as of the time they left. Both
Bridges and Salais testified that neither of them mentioned
the names of any salesmen while Hall and Beatty were
present. Yet Hall testified that Salais discussed a reduction
in force among the salesmen, naming those who would be
affected and stating that the reduction would be accom-
plished according to seniority leaving only Parker of the
group, and that Bridges agreed with Salais' decision.
Furthermore, in a pretrial affidavit furnished a Board
agent on September 13, 1973, Bridges stated:
That day, August 5, 1973, Salais and I decided to cut
down on the number of salesmen. . . . The decision to
discharge four salesmen was made on Sunday, August
5, 1973, jointly by Mr. Salais and me. . . . The decision
to tell the four salesmen they were discharged was
made on August 5, 1973, by Salais and me.
In the margin of the affidavit, however, there appears the
following interlineation:
The decision to do this was made on August the 3id,
1973, at the meeting of Hall, Beatty, Salais and me,
after the meeting with Chris Harvey. [Emphasis sup-
plied.]
The mterlineation is inconsistent with the statement in
the body of the affidavit, as well as Bridges' testimony that
the decision to terminate the salesmen was not made during
the meeting at which Hall and Beatty were present but in
the separate meeting between him and Salais after Hall and
Beatty had left.13 It is evident that Bridges added the state-
ment in the margin as an afterthought after realizing the
implications of his statement in the body of his affidavit. In
view of the intrinsic inconsistencies in his affidavit and the
ous doubt that Bridges and Salais even examined the employment records.
Thus, the records reveal that Overton was hired on May 1, 1972, while Parker,
who was retained , was hired on June 15, 1972. Bridges' attempt to justify this
selection on the ground that Parker was a far better salesman is not borne
out by their comparative sales records . Overton's average monthly commis-
sions amounted to $1,665 a month as compared with Parker's $1,560.
13 The pretrial affidavit was taken by a Board agent in the presence of
Respondent's labor relations consultant and Salais, after the latter had given
his own affidavit.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inconsistency between his affidavit and his testimony and
based on his appearance and demeanor as a witness, it is
found that the decision to terminate the salesmen was not
made until August 5, after Respondent learned of the union
activities of its salesmen.
The record as a whole, including the various statistical
data furnished by Respondent, suggests that the anticipated
shgrtage of cars, as it existed on August 3, the earliest date
on which Respondent claims to have considered a reduction
in its sales force, was not as critical as it maintained. Bridges
was an experienced automobile dealer, with two agencies,
the one here, and the Pontiac dealership in Hayward. He
had previously owned another Pontiac agency in San Fran-
cisco, as well as a used-car business in San Leandro. As
early as 1956, he had owned a Rambler automobile agency.
With other Toyota dealers, he had received projections of
deliveries, indicating that allocations of cars for the period
July through September would undoubtedly be fulfilled. As
an experienced automobile dealer, it is unlikely that he
would have ignored the distributor's projections of alloca-
tions of cars, particularly in light of the July 31 letter, advis-
ing that 1,800 units, rather than the 1,600 estimated on July
6, had become available for July and that an additional
1,500 units would be available by August 20.
Be that as it may, the issue is not whether, in the exercise
of sound business judgment, Respondent was justified in
concluding that it would be faced with a shortage of new
cars necessitating a reduction in sales force, but whether it
terminated those salesmen solely for that reason rather than
for reasons proscribed by the Act; namely, to discourage
membership in a labor organization.
The record establishes that, after learning , from the
Union's demand for recognition, that the employees had
designated the Union as their bargaining representative,
Respondent, through Sales Manager Salais, interrogated
Parker regarding his membership in the Union and ascer-
tained the names of the other salesmen who had joined the
Union. Within less than 2 hours, Respondent discharged the
four salesmen identified by Parker, thereby effectively de-
stroying the Union's majority. That Respondent was dis-
criminatorily motivated in discharging these employees is
further established by Salais' query of Patton, the day after
the discharges, as to why the men had gone to the Union
instead of coming to him if they had any "beefs." Salais'
remark to Overton the same day, after asking what the men
were "up to," that it was hard "to beat a man at his own
game," and that it would "take a long time," an obvious
reference to the salesmen's attempt to organize, furnishes
further support for this conclusion. Salais' further remark to
Patton, in Clinton's presence, on the afternoon of the same
day, in response to Patton's statement that he would be
available for future employment, "You blew it," obviously
by joining the Union, reinforces the conclusion that the
discharges were unlawfully motivated. Finally, Salais' state-
ment to Patton next day, when Patton inquired as to his
chances of returning to work for Respondent, that there was
no chance unless he could prove that he had never been
involved with the Union, removes any doubt of
Respondent's illegal motivation.
Upon the basis of the foregoing, and upon the -entire
record, including the timing of the discharges, it is found
that Respondent discharged the four named employees on
August 5, 1973, and thereafter failed and refused to rein-
state them, in whole or material part, because of their union
membership and affiliation, thereby discriminating in re-
gard to their hire and tenure of employment to discourage
membership in a labor organization and engaging in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.14
D. The Refusal To Bargain
1. The appropriate unit
The complaint alleges, and Respondent's answer denies,
that the following constitutes an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. Respondent stipulated at the hear-
ing, however, and the record establishes, that the unit de-
scribed is appropriate.
It is, therefore, found that the following unit is appropri-
ate for the purposes of collective bargaining within the
meaning of said section:
All automobile salesmen employed by Respondent at
its Fremont, California, location, excluding all other
employees, guards, watchmen and supervisors as de-
fined in the Act.
2. Majority representation; demand for recognition
The evidence discloses that as of August 5, 1973, the unit
employees consisted of Salesmen Robert Patton, Joe Liot-
ine, Jr., Horace Overton, John Parker, Walter Clinton, and
Stu Holt.ls On August 1, five employees, Patton, Liotine,
Overton, Parker, and Clinton, signed valid authorization
cards designating the Union as their bargaining agent and
paid their initiation fees and first month's dues. It is thus
clear that the Union represented a majority of Respondent's
employees in an appropriate unit on August 1.
On August 3, the Union made a demand for recognition
by ordinary, as well as certified mail, and requested a meet-
ing for the purpose of negotiating a contract. Although the
letter sent by certified mail was returned unclaimed, the
letter sent by ordinary mail, properly addressed, postage
prepaid, is presumed to have been received, in the usual
course of the mails on August 4, especially as both the
sender and addressee are located in Fremont. As has been
found, Bridges actually saw and read the letter about noon
on Sunday, August 5, and before the salesmen were termi-
nated. It is undisputed that Respondent made no response
14 In the light of the unfair labor practices in which Respondent has been
found to have engaged, the fact that as a member of separate trade associa-
tions Respondent was a party to a collective-bargaining agreement with the
Union and the Machinists Union at the Pontiac agency at Hayward does not
establish the absence of unlawful motivation here.
15 It was stipulated at the hearing that Richard Dobkins, finance and
insurance manager , and assistant to Sales Manager Salais, was properly
excluded from the unit . John Camy, the remaining salesman, either terminat-
ed his employment or was discharged sometime between July 15 and August
1, 1973 In any event, his inclusion within the unit would not affect the
Union's majority. It was further stipulated that the Union filed an RC peti-
tion on August 6, served on the Employer by mail the same day.
KING ARTHUR TOYOTA, INC. 167
to the Union's demand at any time thereafter.
It is, therefore, found that since August 5, 1973, Respon-
dent has refused, and continues to refuse, to bargain with
the Union as exclusive representative of its employees in an
appropriate unit.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent, described in section I, above, have a close, inti-
mate, and substantial relation 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 that Respondent has engaged in unfair
.labor practices within the.meaning of Section 8(a)(1), (3),
and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent terminated or dis-
charged Robert Patton, Joe Liotine, Jr., Walter Clinton, and
Horace Overton on August 5, 1973, and thereafter failed
and refused to reinstate them because they had engaged in
protected union activities, to discourage membership in a
labor organization, in violation of Section 8(a)(3) and (1) of
the Act. It will, therefore, be recommended that Respon-
dent cease and desist from such unfair labor practices and
offer said employees- immediate and full reinstatement to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each
of said employees whole for any loss of pay he may have
suffered as a result of the discrimination against him from
the date of such discrimination to the date of Respondent's
offer of reinstatement, less net earnings during such period,
with backpay computed on a quarterly basis, plus interest
at 6 percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
The record fairly establishes that Respondent has en-
gaged in violations of Section 8(a)(3) and (1) for the purpose
of defeating the employees' efforts to organize and to de-
stroy the Union's majority status. These unfair labor prac-
tices are so pervasive and extensive that their "coercive
effects cannot be eliminated by the application of tradi-
tional remedies, with the result that a fair and reliable elec-
tion cannot be had." N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 613-614 (1969). Under these circumstances,
the employees' signed union authorizations constitute a
more reliable measure of the employees' desire for represen-
tation. By refusing the Union's bargaining request and en-
gaging in the aforesaid unfair labor practices, Respondent
has violated Section 8(a)(5), and it is found that a bargain-
ing order is necessary to protect the designation of the
Union by the majority of Respondent's employees and
otherwise to remedy the violations committed.16
In view of the pervasive nature of Respondent's unfair
labor practices, including the discriminatory discharges of
its employees, manifesting an attitude of opposition to the
purposes of the Act, it will further be recommended, to
protect the rights of employees generally, that Respondent
be required to cease and desist from in any manner interfer-
ing with, restraining, or coercing employees in the exercise
of rights guaranteed in the Act.I7
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. King Arthur Toyota, Inc., Respondent herein, is, and
at all times material herein has been, an employer engaged
in commerce and in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Automobile Salesmen's Union Local 1095, Retail
Clerks International Association, the Union herein, is, and
at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By terminating or discharging Robert Patton, Joe
Liotine, Jr., Walter Clinton, and Horace Overton, on Au-
gust 5, 1973, and thereafter failing and refusing to reinstate
them because of their protected union activities, thereby
discriminating in regard to their hire and tenure of employ-
ment, to discourage membership in a labor organization,
and interfering with, restraining, and coercing employees in
the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. All automobile salesmen employed by Respondent at
its Fremont, California, location, excluding all other em-
ployees, guards, watchmen and supervisors as defined in the
Act, constitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
5. Automobile Salesmen's Union Local 1095, Retail
Clerks International Association, the Union herein, was, on
August 1, 1973, and at all times material thereafter has been,
the exclusive representative of all the employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
6. By refusing, since August 5, 1973, and at all times
thereafter, to bargain collectively with Automobile
Salesmen's Union Local 1095, Retail Clerks International
Association, the Union herein, as the exclusive representa-
tive of Respondent's employees in the aforesaid appropriate
unit, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
7. By interfering with, restraining, and coercing its em-
ployees, in the manner found herein, in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has
16 T V Systems, 7nc, 206 NLRB No 135; Fotomat Corporation, 202 NLRB
No. 3.
17 N.L.R B v. Express Publishing Company, 312 U.S. 426 (1941); N.L.R.B.
v. Entwistle Manufacturing Company, 120 F.2d 532 (C A. 4, 1941); May
Department Stores Company d/b/a Famous -Barr Company v. N.L.R B., 326
U.S. 376 (1945); Bethlehem Steel Company v. N.L.R.B, 120 F.2d 641
(C.A D.C., 1941).
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. 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 basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record, and pursuant
to Section 10(c) of the Act, I make the following recom-
mended:
ORDER 18
King Arthur Toyota, Inc., Respondent herein, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Automobile Salesmen's
Union Local 1095, Retail Clerks International Association,
or in any other labor organization of its employees by termi-
nating or discharging or refusing to reinstate any of its
employees, or in any manner discriminating in regard to the
hire or tenure or terms and conditions of employment of
any of its employees because of their union affiliation or
activities.
(b) Refusing to bargain collectively with Automobile
Salesmen's Union Local 1095, Retail Clerks International
Association, as the exclusive representative of all its em-
ployees in the appropriate unit described above.
(c) Coercively interrogating any of its employees with
regard to their union membership or affiliation, threatening
them with reprisals for engaging in union activities, inform-
ing them that they would be required to furnish evidence,
or requiring them to furnish evidence that they were no
longer members of the Union as a condition of employment
with Respondent.
(d) In any manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to loin or assist
Automobile Salesmen's Union Local 1095, Retail Clerks
International Association, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other protected concerted activi-
ties for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act, or
to refrain from any and all such activities, except to the
extent that such right may be affected by any agreement
requinng membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action, which, it is
found, will effectuate the policies of the Act:
(a) Offer Robert Patton, Joe Liotine, Jr., Walter Clinton,
and Horace Overton immediate and full reinstatement to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
18 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
each of them whole for any loss of earnings he may have
suffered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Upon request, bargain collectively with Automobile
Salesmen's Union Local 1095, Retail Clerks International
Association as the exclusive representative of all its employ-
ees in the appropriate unit described above.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due these
employees under the terms of this recommended Order.
(d) Post at its place of business in Fremont, California,
copies of the attached notice marked "Appendix." 19 Copies
of this notice, on forms to be furnished by the Regional
Director for Region 20, shall, after being signed by
Respondent's duly authorized representative, be posted im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply therewith.
191n the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "