King Chrysler-Plymouth, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1969

174 N.L.R.B. 531 (N.L.R.B. 1969)

KING CHRYSLER-PLYMOUTH
King Chrysler-Plymouth , Inc. and Local 445,
International , Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 3-CA-3465, and 3-CA-3483
February 14, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On September 30, 1968, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner, except as modified below.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) by the
efforts of general manager Rochford and sales
manager Buckley to induce the salesmen to deal
directly with it rather than through the Union. The
Trial Examiner further found that certain
interrogation engaged in by the Respondent during
such efforts did not violate the Act.
The record establishes that shortly after the
Union's demand for recognition, Rochford told
Buckley that the salesmen wanted to be represented
by the Union. He then instructed Buckley to ask the
salesmen what their grievances were and why they
wanted to be represented by a third party. The
following day, Buckley met privately with each of
the Respondent's six salesmen and asked each one
what his problem was, and why he wanted to be
The Respondent contends that the Trial Examiner erred in refusing to
disqualify himself from hearing this case. The Respondent 's contention is
based solely on the ground that, from approximately 1961 to 1964, the
Trial Examiner had been associated in the practice of law with an attorney
who from time to time represents the Charging Party herein The
above-mentioned attorney did not represent the Charging Party in this
proceeding . We are satisfied upon the entire record that there was
insufficient basis to warrant the Trial Examiner's disqualification
531
represented by a third party. Further, Rochford,
'during a conversation in which he threatened a
salesman with reprisals , also asked him why he
believed the salesmen needed a third party to
represent them , as his door has always been open.
Rochford also made a similar inquiry of another
salesman.
The Trial Examiner held that the Respondent, by
the above questions was engaging in argument
rather than interrogation , reasoning that a question
is not unlawful unless it seeks to ferret out
information concerning an employee ' s union
interest , attitudes , or activities . He then concluded
that as the purpose of the Respondent ' s questions
was to express argument rather than to seek
information , such questioning did not violate the
Act.
We do not agree . These acts of interrogation did
not occur in isolation but in a context of the
Respondent ' s other unfair labor practices . We find
that these inquiries were made for the purpose of
ascertaining the union sympathies and attitudes of
each salesmen . Interrogation of this nature , engaged
in by high ranking managers , without any
assurances against reprisal , and in the context of
other antiunion activity, reasonably tends to be
coercive .2 In these circumstances , we find that the
Respondent unlawfully interrogated its employees in
violation of Section 8(a)(1).
2. We also find that the Respondent violated
Section 8 (a)(1) by promising a wage increase to
induce a striking employee to return to work. In
reaching a contrary conclusion , the Trial Examiner
relied upon the fact that the Respondent was under
no duty to bargain with the Union as the
representative of the striking mechanics . The Board,
however , has found individual solicitation to be
unlawful irrespective of whether the employer is
under a duty to bargain with the representative of
the striking employees .3 In addition , the Trial
Examiner relied upon his determination that the
General Counsel failed to show that the
Respondent 's solicitation of one employee
constituted an integral part of a pattern of illegal
opposition to the purposes of the Act. However, the
Board requires that such a showing be made only
where the solicitation is not accompanied by any
promise of special benefit or threat of detriment.4
As the strike activity of the mechanics was protected
concerted activity , irrespective of the legal status of
their representative , we find that the Respondent's
offer of a wage increase to one of their number to
refrain from such activity interfered with the free
exercise of employee rights under the Act and
thereby violated Section 8(a)(1).
'Bryant Chucking Grinder Company, 160 NLRB 1526, 1543, 1544, enfd
389 F .2d 565 (C A 2).
'The W.T. Rawleigh Company, 90 NLRB 1924, 1925, 1926, enfd. in
pertinent part 190 F.2d 832 (C.A 7)
'International Telephone, and Telegraph Corp, 159 NLRB 1757, 1781,
1782, enfd. in pertinent part 382 F.2d 366 (C.A. 3)
174 NLRB No. 80
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
The Trial Examiner found, and we agree, that the
Respondent's unlawful refusal to recognize and
bargain with the Union was the immediate cause of
the strike that began on March 22, 1968, and
continues to be the reason for its prolongation.
However, the Trial Examiner failed to include in his
Recommended Remedy a provision for
reinstatement for these unfair labor practice strikers,
and the General Counsel excepted thereto. We find
merit in this exception and shall make the following
addition to the Trial Examiner's Remedy.
Accordingly, we shall order that the Respondent,
upon application by the striking salesmen, offer
them reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
the above-mentioned employees whole for any loss
of pay they may suffer as a result of the
Respondent's refusal to reinstate them upon
application.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner as
modified herein and orders that the Respondent,
King Chrysler-Plymouth, Inc., Kingston, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Reletter paragraph 1(e) to 1(g) of the Trial
Examiner's Recommended Order and insert the
following as paragraphs 1(e) and 1(f):
"(e) Interrogating employees concerning their
union sympathies in a manner or under
circumstances violative of Section 8(a)(1) of the
Act."
"(f) Promising wage increases to induce
employees to abandon their participation in lawful
concerted activities."
2. Add the following as paragraphs 2(b) and 2(c)
respectively, the present paragraphs 2(b) and 2(c)
and those subsequent thereto being consecutively
relettered:
"(b) Upon application, offer immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, to all those
salesmen who engaged in the strike that began on
March 22, 1968, and make whole such salesmen for
any loss of pay they may suffer as a result of any
refusal by the Respondent to reinstate them upon
application."
"(c) Notify the above-described employees, if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
3. Insert the following after the last indented
paragraph of the notice:
WE WILL NOT question our employees
concerning their union sympathies or attitudes.
WE WILL NOT promise wage increases to induce
our employees to abandon their participation in
strikes or other lawful concerted activity.
WE WILL, upon application, offer the salesmen
who engaged in the strike that began on March
22, 1968; immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and will make the
above-mentioned employees whole for any loss of
pay they may suffer as a result of our refusal to
reinstate them upon application.
WE WILL notify the above-described employees
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner- Charges and
amended charges having been filed on various dates
between March 25 and May 10, 1968, in the
above-numbered cases by Local 445, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called-the Union, on May
21, 1968, an order was issued consolidating the
above-numbered cases and a complaint was issued in said
consolidated cases alleging that the Respondent King
Chrysler-Plymouth, Inc., herein called the Company, has
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. The complaint, as
further amended at the hearing, in substance, alleges that:
(a) Since March 20, 1968, the Company unlawfully has
refused to recognize and to bargain collectively with the
Union as the designated representative of the Company's
salesmen; (b) since March 22, 1968, the Company has
refused to pay commissions due to four employees named
in the complaint because they had joined and had assisted
the Union; (c) by the foregoing and by other conduct
described in the complaint the Company has interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed by Section 7 of the Act; and (d) on
March 22, 1968, certain employees of the Company went
on strike which strike was caused and was prolonged by
the unfair labor practices on the part of the Company.
Respondent by its answer generally denies that it has
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held in Kingston, New York, on June
11 and 12, 1968. Thereafter, a brief was filed on behalf of
KING CHRYSLER-PLYMOUTH
the General Counsel which has been carefully considered.,
Upon 'the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following.
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
Respondent , a New York corporation , sells and services
new and used automobiles at its place of business in
Kingston , New York. In the course and conduct of its
business operations , during the past year , Respondent sold
products of a gross value in excess of $1,500,000 . During
the same period , Respondent received goods valued in
excess of $50,000 at its place of business in Kingston,
New York, directly from States other than the State of
New York. Respondent does not deny, and I find, that it
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's Refusal to Bargain
Respondent operates a new- and used-car dealership in
Kingston, New York, which was formally opened for
business on April 10, 1967. In March of the following
year the Company's salesmen sought union representation.
These self-organizational efforts have been opposed by the
Respondent and its conduct in resisting the Union's
representation demands gave rise to the events which are
alleged herein to constitute violations of the Act.
During the times material hereto the Company
employed six salesmen (Winfield Benoit, Lawrence
Ranford, Timothy Straight, Charles DuVernoy, Donald
Jessup, and Albert Mazziotta), a sales manager, Walter
Buckley, and Richard Rochford, Respondent's vice
president and general manager. The salesmen initiated the
organizational effort. One of their number telephoned a
union representative and arranged for a meeting which
was held on the night of March 15, 1968, at the offices of
the Union. Present at the meeting were Donald
MacCollam, an -organizer for the Union, Anthony Alecca,
business agent and president of the Union, and four of the
Company's salesmen Among other things that were
discussed at the meeting were the various ways by which
the Union could obtain recognition. The salesmen
indicated that they believed it would not be desirable to
seek an NLRB election and that it would be preferable, if
necessary, to picket the Company's premises in order to
compel recognition. The meeting ended inconclusively.
The salesmen did not make any commitments but said
that they would contact the union representatives the next
day after they had discussed the matter among themselves
and with the absent salesmen. Before the salesmen left the
meeting they took with them union authorization cards
and applications for membership.
The next evening MacCollam met with the Company's
six salesmen at which time, they unanimously agreed to
'With his brief General Counsel filed a motion to correct the transcript
of record . No opposition having been filed said motion is hereby granted.
533
designate the Union as their representative and
MacCollam was given a union authorization card and a
membership application signed by each of the salesmen.2
In the afternoon of March 20, 1968, Union
Representatives MacCollam and Alecca called upon
General Manager Rochford at his office. They told
Rochford that the Union represented all the salesmen and
that they were asking for recognition as the bargaining
agent for the salesmen. This was the first knowledge
Rochford had of any organizational interest on the part of
the salesmen. At the hearing the parties stipulated that the
Company's salesmen alone, and apart from all other
employees, constitute an appropriate collective-bargaining
unit. MacCollam placed the six authorization cards and
membership applications on the desk in front of
Rochford. The latter indicated there was no need to offer
proof of majority saying, "If you say you represent them,
there's no reason to lie."' Rochford was asked to sign a
recognition agreement but responded that he first wished
to see it in writing. MacCollam thereupon telephoned the
Union's attorney and upon completing the telephone call
dictated the wording of a recognition agreement to
Rochford's secretary. Rochford declined to sign the
proposed recognition agreement after it was typed
explaining that he first wished to consult with the other
principals of the Company. MacCollam and Alecca
waited at the Company's premises for Rochford's answer.
After they had waited for approximately 1-1/2 hours
Rochford told them that he was unable to communicate
with the persons he was seeking to reach. The Union's
representatives informed Rochford that they would be in
touch with him the next day and then left.
On March 21 MacCollam telephoned Rockford and
was informed by Rochford that the latter had been
advised by the other principals of the Company not to
sign the recognition agreement. MacCollam asked why
and Rochford responded, "Well, we are not entirely
convinced that you represent our people." This assertion,
however, was inconsistent with the view Rockford
expressed the previous day after the union representatives
had left the Company's premises. According to the
testimony of Sales Manager Walter Buckley, Rochford
then had told him "[t]hat the salesmen wanted to be
represented by a Union." The absence of any reasonable
'The authorization cards, in pertinent part, read as follows
Hereby authorize the International Brotherhood of Teamsters, Local
445, to represent me and, in my behalf, for the purposes of collective
bargaining to negotiate and conclude all agreements in respect to rates
of pay, wages, hours of employment, or other conditions of employment
in accordance with the provisions of the, National Labor Relations Act
'At some point during the visit Rochford picked up the cards and
application forms and inspected them Rochford testified that he inspected
only one card , contrary to the testimony of MacCollam and Alecca that
Rochford inspected all the cards . I credit MacCollam and Alecca and do
not credit Rochford in this respect . In giving his testimony as a witness in
this hearing Rochford was evasive when questioned by General Counsel; he
sought to avoid giving direct answers to questions asked him by pretending
that he did not understand the questions asked or by affecting a poor
memory In general, Rochford impressed me as being an unreliable
witness. In any event , whether Rochford inspected one card, no card, or Mall
the cards is unimportant. The authorization cards were present and
available for Rochford's inspection . If he had any doubt as to whether the
Union had cards from a majority of the salesmen or whether the cards
which they had were genuine the opportunity was conveniently present for
him to satisfy these doubts. The fact that he did not question either the
number of cards the Union claimed to have (the Union's claim was that
they had cards from all the salesmen ) 'or their authenticity at a time when
it would have been appropriate for him to raise such questions suggests
only that Rochford had no doubt concerning the Union's representation
claim.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis for the Company's expressed doubt of the Union's
majority claim was further demonstrated when on March
22 all six salesmen went on strike and all participated in
picketing the Company's premises. During the morning of
that day Union Business Agent Alecca went into the
Company's showroom and said to Rochford who was
standing there, "I understand that your boss does not
believe we have the majority of employees." Rochford
responded, "Not the boss, me. I don't believe it." To this
Alecca said, "Well, is there any doubt about it now? We
have the six men on the picket line." Rochford did not
reply to Alecca's last remark.
At the hearing Rochford testified that despite the fact
that he saw all six salesmen picketing he doubted the
Union's majority because at some time during the strike
DuVernoy, Ranford, and Jessup told him that they would
rather be selling cars than striking and, in addition, on the
first or second day of the strike DuVernoy and Jessup told
him they did not need the strike and that it was something
that they had not anticipated, and a day or two thereafter
Ranford made a similar statement. As Rochford's
testimony indicates that these statements were made after
the strike had begun he could not have relied upon them
when he informed the union representatives on March 21
and 22 that he and/or the Company doubted the Union's
majority. Furthermore, at the time the salesmen made the
remarks referred- to by Rochford they were engaged in a
strike against the Company and were actively picketing its
premises. The salesmen continued the 'strike and the
picketing for a substantial period of time thereafter. In
these circumstances, statements by the salesmen to the
effect that they would rather be selling cars than striking,
that they did not need a strike, or that they had not
planned upon a strike when they designated the Union
indicate neither that the salesmen had failed to designate
the Union as their representative in the first instance nor
that they thereafter had repudiated their designations of
the Union.
I discredit Rochford's testimony that when the union
representatives demanded recognition on behalf of the
Company's salesmen on March 20,' 1968, he doubted the
Union's claim of majority. For reasons stated elsewhere in
this decision I find that Rochford was not a truthful
witness. The record is barren of any evidence suggesting
any basis for such alleged doubt. Moreover, his conduct
during the March 20 meeting with the union
representatives was inconsistent with his later assertion of
doubt of, majority. Then he specifically stated that he did
not question the union's representative status. His failure
to contest the authenticity of the authorization cards when
they were readily available for his inspection further
indicates his acceptance of the Union's majority claim. In
addition, when a recognition agreement was proposed,
Rochford requested that it should be reduced to writing,
which was done. Although be did not sign the agreement
his refusal was not because he questioned the Union's
majority but only because he first wished to consult with
the other principals of the Company. Not until his
telephone conversation with,MacCollam the next day did
Rochford voice any doubt concerning the Union's
majority. Even then he gave no reason for such doubt. If
on March 21 he had any question about the Union's
majority it was assuredly dissipated the next day when all
six salesmen joined in a strike against the Company and
actively picketed the Company's premises.
Of further significance respecting the Company's
refusal to recognize the Union are the efforts, discussed
more fully below, made by Rochford and Sales Manager
Buckley on March 21 to persuade the salesmen to
repudiate their union designations. Such conduct suggests
that the Company refused to recognize the Union in order
to gain time within which to try to dissipate the Union's
majority. Additionally, the Company's failure to pay
certain commissions to the salesmen, discussed below, in
reprisal for their strike activity is still another
demonstration of the Company's' opposition to its
employees' organizational aspirations.
I find that at no relevant time did the Company have
any good-faith doubt concerning the Union's majority. On
March 20, 1968, when the Union requested recognition it
had been designated as bargaining representative by all
the employees in an appropriate unit of salesmen.
Respondent's refusal to recognize the Union as such
representative, in the circumstances, constitutes a violation
of Section 8(a)(5) and (1) of the Act.'
B. Interference, Restraint, and Coercion
Following the departure of the union representatives on
March 20, 1968, Plant Manager Rochford and Sales
Manager Buckley on that day and the next day had
conversations with the salesmen individually during which,
according to General Counsel, they made statements or
asked questions which infringed upon employees' statutory
rights. Rochford testified that he spoke with the salesmen
one at a time and told them that "We had always
maintained an open door policy and that any problem that
any of them had we were always willing to assist them in
anyway we could and that I personally had nothing
against Unions, but because of our size and our intimacy,
I saw no reason to deal with a third party."
Buckley testified that Rochford spoke to him briefly
about the union representatives' visit and told him that
"the salesmen wanted to be represented by a Union
Rochford instructed Buckley to ask the salesmen what
their grievances were and why they wanted to be
represented by a third party. The next day, March 21,
Buckley spoke to each salesman privately and inquired of
them "[w]hat their problem was, why they wanted to be
represented by a third party."
Both Rochford and Buckley in their conversations with
the individual salesmen did more than merely express their
views about union representation. Their remarks
constituted undisguised suggestions to the employees to
repudiate the Union as their representative. Additionally,
at a time when, the Union had already demanded
recognition and had demonstrated its majority status they
sought to persuade the employees to deal individually with
management by advising the salesmen that the Company
"always maintained an open door policy" and was ready
to assist the employees with any "problem" they might
have. This endeavor to induce the employees to bypass the
Union and to treat directly with management at a time
when the Company was under an obligation to deal with
the employees' designated exclusive bargaining
representative tends to undermine the collective-bargaining
relationships which the Act seeks to foster. As the
Supreme Court observed in Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678, 684, "Bargaining
carried on by the employer directly with the employees,
whether a minority or majority, who have not revoked
their designation of a bargaining agent, would be
subversive of the mode of collective bargaining which the
'Easton Packing Company, 171 NLRB No 183, International Harvester
Company, 170 NLRB No 134
KING CHRYSLER-PLYMOUTH
statute has ordained. . Such conduct is therefore an
interference with the rights guaranteed by Section 7 and a
violation of Section 8(1) of the Act." Accordingly, I find
that by reason of the activities of Rochford and Buckley
summarized above the Respondent has violated Section
8(a)(1) of the Act.'
General Counsel relies upon certain uncontradicted
testimony by one of the salesmen, Timothy Straight, as
evidence of further violations of Section 8(a)(1) of the Act
on the part of Respondent. The first incident about which
Straight testified occurred in the morning of March 21. In
connection with the sale of a new automobile which he
was trying to negotiate, Straight asked Buckley to
appraise the old automobile the customer was offering as
a trade-in. Buckley appraised the car at a figure which
Straight considered " a little low." Straight did not dispute
the figure with Buckley because , according to Straight, "I
kind of agreed with him at the time, if we can get it, we
might as well get it right " Later Straight informed
Buckley that he and the customer were apart by the
amount of $50. Buckley asked whether he had made the
deal, and when Straight responded that he had not
Buckley answered, "Well, that's the way it's going to be
from now on." According to Straight, prior to the
incident in question he had had very few differences with
Buckley about appraisals.
General Counsel contends in his brief that the foregoing
incident constitutes a threat of withdrawal of privileges
and the imposition of more onerous working conditions if
the Kingston dealership should become unionized . He does
not clearly explicate how the facts support such argument.
Presumably, General Counsel infers from Straight's
testimony that Buckley deliberately set a low appraisal for
the trade-in in order to impede the sale Straight was
negotiating. Straight's testimony does not support such
inference. First, there is no proof that the appraisal fixed
by Buckley in fact was low. The evidence is limited merely
to Straight's opinion that he considered the appraisal "a
little low."6 Second, the rather sparse evidence concerning
the incident is hardly sufficient to support the inference
that General Counsel makes. The Company is in the
business of selling cars, it would be abnormal for the sales
manager deliberately to obstruct sales in order to deny its
salesmen the opportunity for earning commissions. An
indefinite statement such as Buckley purportedly made to
the effect, "that's the way it's going to be from now on,"
is, in my opinion, insufficient to support a conclusion that
the Company deliberately was going to reduce its sales in
order to retaliate' against its salesmen 1 find, contrary to
General Counsel, that the above-described testimony on
the part of Straight does not prove any violation of the
'Cactus Petroleum , Inc, 134 NLRB 1254, 1261, reversed on other
grounds 355 F 2d 755'(C.A 5); Stanley Air Tools, 171 NLRB No. 48, sec
III, E, 2 , of TXD. See also Agway Petroleum Corporation , 170 NLRB
No. 95. I do not agree with General Counsel that Buckley ' s inquiries
constituted unlawful interrogation. His remarks , although in an
interrogatory form, were argumentative rather than questioning . This is
reflected by the employees ' responses which were affirmative declarations
of position rather than answers to questions . In order to constitute
interrogation which violates Section 8(a)(1) a question must seek to ferret
out information concerning union interest, attitudes , or activities Here
Buckley was not seeking information from the salesmen but rather was
trying to persuade the employees to give up union representation
General Counsel contends that testimony by various salesmen concerning
their conversations with Rochford or Buckley constitute further violations
of Section 8(a)(1). However , such testimony merely corroborated the
testimony of Rochford and Buckley , which I found above evidenced
violations of Section 8(a)(l), and did not furnish proof of additional unfair
labor practices
535
Act.
In the afternoon of March 21, Straight had a
conversation with Rochford during which Rochford
mentioned that the Company was seeking managers and
that three of the salesmen, including Straight, were in line
for such promotions and Rochford expected that they
would be moved up shortly the way the Company was
putting additional dealerships into operation.' Later in the
same afternoon Rochford had another conversation with
Straight during which Rochford asked Straight why he
believed the salesmen needed a third party to represent
them as his door has always been open. Rochford said
further that anytime Straight had a problem Straight
could take it up with him. Rochford also said that it was
impossible for the six salesmen to "carry on a strike."
Referring to the salesmen' s designation of a bargaining
representative, Straight testified that Rochford said, "[I]f
I wanted to use the personal touch, it's out. If I wanted to
use the truck some evening . . . borrowing money from
the Company, would be strictly out also...." Rochford
also said that salesmen would be permitted to use
demonstrators only to discharge company business.
Finally, Rochford said that if Straight thinks there is
regimentation now, "wait until the Union gets in here."
In these conversations Rochford was using the carrot
and stick tactic to discourage Straight from supporting the
Union. First, Rochford held before Straight the promise
of a promotion. Although in this conversation Rochford
made no mention of the Union, because of the timing of
the conversation, i.e., the day following the Union's
demand for recognition, and the subsequent conversation
with Straight in the same afternoon, it could not have
been lost upon Straight that the promotion Rochford was
dangling before him was dependent upon his renunciation
of the Union. In the second conversation Rockford made
direct threats of reprisals ^ against the employees if they
persisted in their organizational endeavors. He told
Straight that union representation would be met by the
withdrawal of employees' privileges such as the use of
company vehicles and the opportunity to borrow money
from the Company. Rochford also made subtle threats
such as his remark that the salesmen could not carry on a
strike which implied that their persistence in seeking union
representation would lead to a strike. These promises of
benefits and threats of reprisal made by Rochford to
discourage employees' union activities constitute' violations
of Section 8(a)(1).
In the evening of March 21 most of the salesmen were
instructed to turn in their demonstrators contrary to the
Company' s normal practice of permitting the salesmen to
use the demonstrators for travel to and from their homes
and for other personal, travel. Buckley explained that
about 2 p in. on that day, March 21, he was informed by
Rochford_ that the latter had received a telephone call
from MacCollam advising that there would be a picket
line in front of the Company's offices the following
`Straight also testified that a Mr. Robert Baumont, a wholesaler, "got
on the intercom , I imagine with Mr. Buckley I did hear him mention the
name . I could go the other fifty And I don't know what the other reply
was on the other end , but when Bob put down the phone , he came out and
said , `Sorry , I can 't do it. ' So it blew the deal." Assuming that Straight
accurately testified as to what occurred it remains that he does not know
to whom Baumont spoke or about what they were speaking This
testimony does not amount to proof that the trade -in car had been given a
low appraisal by Buckley
'The previous day, during his meeting with the union representatives,
Rochford said that the Company was planning to discharge three salesmen,
one of whom was Straight
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning. Buckley spoke separately to three salesmen and
told them not to take the demonstrators when they left
work that night. Benoit's testimony regarding the incident
substantially corroborates Buckley. According to Benoit,
about 5:30 p.m. on March 21 Buckley began a
conversation by asking, "Why are you doing this to me?"
Benoit replied that the men decided we should get
together to do something to protect our jobs. Buckley then
said, "Well, you fellows are going on strike tomorrow... .
The Company had been very good to you. . . . They let
you use the car for personal reasons. . . . Tonight, when
you close up, turn in your demonstrator and place the
keys in the car."
Mazziotta testified that in the evening of March 21 he
was informed by Straight and DuVernoy_ that Rochford
was asking the salesmen to turn in their demonstrators.
Because Mazziotta was concerned about transportation
home he asked Rochford whether he was required to turn
in his demonstrator. Rochford said, "[A]s long as we
weren't using them for work, we would have to leave them
at the place." Rochford then continued the conversation
by asking why the salesmen needed other representation,
why the men cannot come in and see him "on their own,"
his door is always open and one should be "man enough
to come in." Rochford then discussed the hardships of
striking mentioning that a striker cannot obtain
unemployment insurance benefits for 7 weeks and that
Mazziotta should think of his wife and four children.
General Counsel contends that the Company instructed
the salesmen to turn in their demonstrators on the night
of March 21 in retaliation for their union activities While
the testimony kindles a suspicion that such was the case, I
find that the fact has not been proved by a preponderance
of the evidence particularly because of Buckley's
testimony, corroborated by Benoit, that the instructions
were issued because of the Company's belief that there
would be a salesmen's strike the next day, which in fact
did occur.
C. The Strike
On Friday morning, March 22, Union President Alecca
was waiting outside the Company's premises when Benoit,
Mazziotta, and Straight arrived..Alecca informed the men
that nothing was happening, presumably referring to the
Union's request for recognition. He then distributed picket
signs to them and established a picket line. The other
salesmen as they came to work joined the strike and
participated in the picketing. The strike is still in progress
although picketing was discontinued on April 22, 1968.8
General Counsel requests a declaration in this case that
the strike of the salesmen is an unfair labor practice
strike. I so find as the Company's unlawful refusal to
recognize and to bargain collectively wtih the Union was
the immediate cause of the strike and is responsible for its
prolongation.
'Alecca testified that on April 22, 1968 , he had conversations with
representatives of the Company looking towards the reinstatement of the
strikers and the discontinuance of the strike However, when he spoke to
Benoit and Mazziotta about the subject they refused to abandon the strike
and return to work . He did not consult the other four salesmen because,
according to Alecca, Jessup was no longer around ; Straight had accepted
temporary employment elsewhere , DuVernoy had already returned to
work;, and Ranford had sent word that he had another job
D. The Strike by the Mechanics
In the morning of March 25, 1968, all eight mechanics
then employed by the Company left the premises together.
During their coffeebreak, which preceded the walkout, the
mechanics, who previously had been talking among
themselves about joining the Union, decided that this was
the time "instead of talking to do what we planned on."
As they were leaving, Fred Kelsey, one of the mechanics,
told Service Manager Joseph Dodd that "they were
walking out to join the Union." The mechanics then met
with a union representative, Joe Amato, in a tavern and
all eight signed union authorization cards. The mechanics
returned to the Company's premises and began picketing.
General Counsel does not contend that during any time
relevant hereto the Union was the statutory
collective-bargaining representative of the mechanics.
There is no evidence of any demands having been made
upon the Company on behalf of the mechanics as a group
and no direct evidence as to why the mechanics went on
strike. Although the strike of the mechanics began after
the salesmen's strike there is no evidence that the
mechanics struck in support of the salesmen or otherwise
made common cause with the salesmen.
All the mechanics except Anton Refrigier have returned
to work and in each case at a higher salary than he was
paid before the strike. General Counsel contends that the
increase given to Donald O'Connor, one of the mechanics,
and the conversations had with him preceding his return
to work constitute violations of Section 8(a)(1) of the Act.
In respect to the abandonment of the strike by the
mechanics the evidence shows.
Frank Banks returned to work on March 27 after
applying to Rochford for reinstatement. Banks' weekly
salary was increased from $92 to $100. Two weeks later
Harold Quick requested reinstatement and returned to
work after reaching an agreement with Rochford for an
increase in his hourly rate from $2.25 to $2.50. Likewise,
Edward Krum requested reinstatement and returned to
work on April 8 after having negotiated a wage increase
for himself with Rochford.
Anton Refrigier testified that during the second week of
the strike he had a conversation with Service Manager Joe
Dodd when he went into the shop to pick up his tools.
Dodd suggested that he should see Rochford and that he
might be able to get his job back. During the conversation
Dodd said that the men were probably wasting their time
with the Union because he did not think the Union
"would help." About a week later Dodd again suggested
to Refrigier that he speak to Rochford about returning to
work. However, Refrigier did not return to work.
Finally, Donald O'Connor testified that while he was
on strike, every now and then, Dodd asked him whether
he was ready to return to work. On one occasion Dodd
told O'Connor that Rochford had made a good offer to
Fred Kelsey and if O'Connor would talk to Rochford,
Rochford would give him a good deal also. O'Connor
further testified that about April 19 Dodd again asked
him to return to work. O'Connor refused with the
comment that he probably would be dismissed anyway. A
few minutes later Rochford appeared and told O'Connor
that if he returned to work and did a good job he would
not have to worry about being dismissed. Later in the
same afternoon Rochford told O'Connor that if he was
ready to go back to work he would get more money. The
increase mentioned was $15 per week. O'Connor answered
that he would think it over. Ultimately O'Connor
accepted the offer and returned to work.
KING CHRYSLER-PLYMOUTH
General Counsel argues that "although the service
employees were not in the salesmen' s unit, they were
engaged with the salesmen in the Union's concerted
picketing of Respondent. Respondent was a single-location
auto agency, and, in these circumstances, its unlawful
conduct with one classification cannot be isolated from the
other. In the context of its course of unlawful conduct, its
offer and grant of a wage increase to O'Connor to induce
him to abandon the strike and picketing, constituted a
calculated effort to undermine and discredit the concerted
union action, in violation of Section 8(a)(1)."
I am not persuaded by General Counsel's argument. It
is largely structured on assumptions which have
insubstantial record support. General Counsel first states
that the mechanics "were engaged with the salesmen in
the Union's concerted picketing of Respondent." This
assertion is gratuitous; it is based on nothing more than
the fact that the mechanics were picketing at the same
time as were the salesmen. Such fact does not prove that
the picketing by the mechanics was related to the
picketing by the salesmen. Although the mechanics carried
the same Local 445 signs as did the salesmen, there is no
evidence that the picketing by the mechanics was
coordinated with the picketing by the salesmen or that any
attempt was made to represent the two groups as being
involved in a joint strike. Furthermore., there is no
evidence that the mechanics went on strike in aid of the
salesmen's strike, that the mechanics had indicated any
support or sympathy for the objectives being pursued by
the salesmen, or that the mechanics had in any way
associated themselves with the salesmen's cause.' As all
the mechanics but one returned to work while the
salesmen's strike was still in progress the reasonable
inference is that the mechanics struck to achieve their own
objectives and not to support the salesmen. Except for the
coincidence that both groups were picketing at the same
time, there is no proof that the mechanics "were engaged
with the salesmen in the Union's concerted picketing of
Respondent."
General Counsel's second point is that Respondent's
"unlawful conduct with one classification cannot be
isolated from the other." As a general proposition this
statement is true, but General Counsel does not explain its
applicability to this case. If by this statement General
Counsel intends to say that it may be presumed that
Respondent's unlawful treatment of the salesmen had a
coercive impact upon the mechanics, he does not further
explain the bearing such presumption has upon the issue
under consideration." He argues that the increase which
Respondent gave to O'Connor to induce him to abandon
the strike was unlawful because "in the context of
[Respondent's] course of unlawful conduct" (presumably
referring to Respondent's activities involving the salesmen)
it constituted "a calculated effort to undermine and
discredit the concerted union action." I am uncertain to
what General Counsel refers by the expression "the
concerted union action." If the phrase is intended to refer
to the strike and to the picketing by the -mechanics, he
does not explain why the increase given to O'Connor
should be treated differently than the increases given to
'Although all the mechanics had signed union authorization cards and
Alecca testified that on March 25 he told Rochford that the Union
represented the mechanics, the complaint does not allege that at any time
material hereto the Union was the statutory representative of the
mechanics and, at the hearing and in his brief, General Counsel specifically
has affirmed that he is not making any such contention Thus, for the
purposes of this proceeding the Company was under no duty to recognize
or to bargain with the Union on behalf of the mechanics.
5 37
the other mechanics which General Counsel does not
contend were unlawful. Just as in the case of O'Connor,
Quick and Krum did not abandon the strike until they
were first offered increases. If the phrase is intended to
refer to the strike by the salesmen, General Counsel does
not explain how the solicitation of O'Connor, one of the
mechanics, to return to work tended "to undermine and
discredit" the "concerted union action," that is, the
salesmen 's strike. To the contrary, it would seem that the
Company's purpose in soliciting its mechanics to return to
work was the normal desire of an employer whose
operations have been interrupted by a strike to settle the
strike and to resume work rather than to "undermine and
discredit" the salesmen's strike. The evidence here does
not show a sufficient nexus between the Company's
unlawful conduct and the inducement offered O'Connor to
abandon the strike to support a finding that the increase
given to O'Connor "constituted an integral part of a
pattern of illegal opposition to the purposes of the Act""
and thus was unlawful.' 2
More importantly, General Counsel ignores completely
the question of what course of action was available to
Respondent to effect a settlement of the mechanic's strike.
The mechanics had no statutory representative. Although
their strike was a concerted activity the mechanics took
no other collective action. Neither before nor during the
strike were any demands on behalf of the mechanics as a
group presented to the Respondent. They did not
designate a spokesman for themselves. , In these
circumstances the only practical way the Respondent
could initiate settlement efforts was to approach and to
deal with the mechanics individually. Actually, in this
case, the initiative was taken by some of the mechanics
who first requested reinstatement. In the absence of a
statutory representative the Company had a right to treat
with the striking mechanics individually." General
Counsel inferentially acknowledges that the Respondent
was privileged to bargain with the mechanics individually
and was under no obligation to deal with the Union on
their behalf because, except for the case of O'Connor,
General Counsel does not contend that the increases which
the Company negotiated with and gave to the mechanics
who returned to work were unlawful Why then is the case
of O'Connor any different. Except by talking with the
mechanics, Respondent had no way of ascertaining why
they were on strike and what it could do to settle the
strike. Respondent's experiences with some of the
mechanics such as Banks, Quick, and Krum undoubtedly
suggested that the mechanics had struck to obtain higher
wages. By offering O'Connor a wage increase Respondent,
in effect, was capitulating to his demand as Respondent
had already done in the cases of other mechanics who had
returned to work Respondent in giving increases to the
mechanics was not bypassing the Union because the
Union was not their collective bargaining representative.
"The gist of General Counsel ' s argument seems to be that but for
Respondent 's other unfair labor practices the wage increase given to
O'Connor to induce him to abandon the strike and to return to work
would be lawful . However, General Counsel does not explain why or how
the unfair labor practices which directly affected only the salesmen
operated to change the increase given to O'Connor from a lawful act to an
unlawful act.
"See I Spiewak & Sons, 71 NLRB 770, 772, enfd. as modified 179 F 2d
695 (C A. 3),
"See W T. Rawleigh Company, 90 NLRB 1924, 1925-26, enfd. as
modified 190 F.2d 832 (C.A. 7); Hornick Building Block Co., 148 NLRB
1231, 1237.
W. I . C a s e C o m p a n y v. N.L.R.B, 321 U S 332, 336-337; Insular
Chemical Corporation , 128 NLRB 93, 101.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would seem that the mechanics had succeeded in their
individual strike objectives. I do not perceive any merit to
General Counsel's thesis that, under the facts in this case,
where there was no statutory representative for the
striking mechanics; it was lawful for the Company to
accede to the strike demands of the mechanics who
initiated reinstatement negotiations but it was unlawful for
the Company to bargain with O'Connor' about his
reinstatement. Contrary to General Counsel, I find that
the increase offered to O'Connor to induce him to
abandon the strike was not an unfair labor practice.14
E. Refusal to Pay Commissions to Striking Salesmen
During the times relevant hereto the Company paid its
salesmen on the basis of a small salary plus a commission
for each car sold by them. The commission is paid on the
Friday following the day on which the automobile is
delivered to the purchaser. Four salesmen, Winfield
Benoit, Albert Mazziotta, Lawrence Ranford, and Charles
Straight had made sales of automobiles prior to March
22, 1968, but were not paid commissions for such sales
because the cars were delivered while they were on strike.
According to General Manager Richard Rochford a
salesman does not earn a commission for a sale made by
him unless he is "present to deliver the car" to the
purchaser.'s Rochford was corroborated by Sales Manager
Walter Buckley who testified that the practice of the
Company with regard to the payment of commissions to
salesmen is that in order to earn a commission the
salesman "has to sell the car and deliver the car. When
the car is delivered and the money is in the office, they'll
be paid for it." "We never pay . until the car is
delivered. The people may cancel." The explanation for
the practice according to Buckley, is that "the most
important factor in selling the car is the delivery, to let
the people know you are the selling salesman and if you
want to do repeated business, this is what you want to
imbed in their minds. It's to their advantage that you are
delivering the car."16 Benoit testified that the Company
"did frown upon the salesman making the sale and not
making the delivery because that's not considered good
business. Salesman should be there at the time of
delivery." Mazziota also testified that the Company
wanted the salesmen to deliver the cars sold by them
because it was good business to see that the customers
were properly taken care of. However, contrary to
Rochford and Buckley, Benoit testified that "there has
never been a policy that a salesman would not be paid if
he wasn't there at the time of delivery." Neither Rochford
nor Buckley testified that any salesman was informed that
he would not be paid a commission if he was not present
to deliver the car to the purchaser nor is there evidence of
any communication whether written or oral to the
"The cases cited by General Counsel in his brief are inapposite The
applicable rule is summarized by the Board in Family Bargain Centers,
Inc., 160 NLRB 816, fn . 1, as follows
(W)e disavow any possible implication that direct dealing or bargaining
with employees who are not represented by a collective-bargainmg
representative is necessarily violative of Section 8(a)(1) of the Act.
However, where such direct dealing is undertaken for the purpose of
encouraging employees to reject union representation and involves the
promising and granting of benefits . it restrains , coerces, and
interferes with employees ' exercise of Section 7 rights and therefore
violates Section 8(a)(1) of the Act.
See also Webb Wheel Division , 121 NLRB 1410, 1411, General Electric
Company v. N.L.R.B., 400 F.2d 713 (C.A. 5).
salesmen to such effect. Rochford testified that prior to
the strike no salesman had been denied a commission
because he did not deliver the car sold by him. According
to Rochford, if a salesman is unable to deliver a car sold
by him normally he makes arrangements with another
salesman to attend to the delivery for him. Such
arrangements may involve splitting the commission.
However, these arrangements are made by the salesmen
themselves and do not involve the management of the
Company. The salesmen who testified about the subject
generally corroborated Rochford that it was their practice,
if unable to deliver the car sold by them, to make
arrangements with another salesman to attend to the
delivery for them and on occasion they would arrange for
splitting the commission.
The testimony of Rochford and Buckley show that the
Company paid full commissions to a salesman, Tom
Kearney, who voluntarily quit its employ for sales made
by Kearney before he left but where the cars were
delivered after his employment terminated.
I do not credit the testimony of Rochford and Buckley
that the practice and policy of the Company was to deny
commissions to salesmen who were not present to deliver
the cars sold by them. There is no evidence that such
practice or policy had ever been communicated to the
salesmen and, indicating the contrary, prior to the strike,
no salesman had ever been denied his commission because
he was not present when delivery of the car was made. I
find, contrary to Respondent, that the four salesmen
named in the complaint were denied commissions by the
Company in retaliation for having designated the Union
as their collective-bargaining representative and for having
engaged in a strike against the Company. Respondent's
withholding commissions from the salesmen in such
circumstances constitute violations of Section 8(a)(1) and
(3) of the Act. N.L.R.B. v. Great Dane Trailers, Inc., 388
U.S. 26.
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 Respondent's
operations 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 that the Respondent has engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully refused
to pay commissions to Winfield Benoit, Albert Mazziotta,
Lawrence Ranford, and Charles Straight with respect to
"When questioned further about the subject Rochford testified that to
earn the commission the salesman had "to be physically present and
working" at the time of the delivery
"In connection with the delivery of a car Buckley explained that the
salesman has certain duties to perform in addition to accepting payment
for the car . He must transfer the license plates , see that luggage from the
car being traded in, if there is a trade-in , is removed , dispose of any
problems that might arise such as a discrepancy in extra equipment
between what was ordered by the customer and what was installed in the
car at the factory, and fill out such papers as are required
KING CHRYSLER-PLYMOUTH
cars sold by them prior to the strike which began on
March 22, 1968, but which were delivered to the
customers during the strike, I shall recommend that the
Respondent pay to each of them the full commission due
to him for each such sale plus interest thereon at the rate
of 6 percent per annum from the date on which the
commission became payable.
Having found that the Respondent unlawfully has
refused to bargain collectively with the Union, I shall
recommend that it be ordered to bargain collectively with
the Union, upon request, with respect to rates of pay,
wages, hours of employment, and other conditions of
employment for the employees in the appropriate unit
described below and, if an understanding is reached,
embody such understanding in a signed agreement.
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. All salesmen employed by Respondent at its
Kingston, New York, dealership, excluding all shop
employees, office clerical employees, and all professional
employees, 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.
2. At all times since March 16, 1968, Local 445,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, has been the
exclusive collective-bargaining representative within the
meaning of Section 9(a) of the Act of the employees in
the above-described unit.
3. Since March 20, 1968, by failing and refusing to
recognize the Union as such exclusive
collective-bargaining representative and by failing and
refusing to bargain in good faith with the Union as the
collective-bargaining representative of Respondent's
employees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act
4. Since March 22, 1968, by refusing and failing to pay
to Winfield Benoit, Albert Mazziotta, Lawrence Ranford,
and Charles Straight commissions earned by them because
they were engaged in a strike against the Company,
Respondent has discriminated against employees to
discourage membership in the Union, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. By the foregoing conduct, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. By seeking to induce employees to bypass the Union
and treat directly with management at a time when the
Respondent was under an obligation to deal with the
employees' designated exclusive bargaining representative,
Respondent, since March 21, 1968, has interfered with
and restrained employees in the exercise of the rights
guaranteed by Section 7 of the Act and thereby has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. By promising employees benefits and threatening
them with reprisals in order to discourage their support
and affiliation with the Union, Respondent, since March
21, 1968, has engaged in and is engaging in unfair labor
539
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.
9. The strike by Respondent's salesmen which began on
March 22, 1968, was caused by and has been prolonged
by Respondent's unfair labor practices.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the Act, I hereby recommend that
King Chrysler-Plymouth, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 445,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
collective-bargaining representative of its employees in the
following appropriate unit:
All salesmen employed by King Chrysler-Plymouth,
Inc., at its Kingston dealership, excluding all shop
employees, office clerical employees, and all professional
employees, guards and supervisors as defined in the Act.
(b) Discouraging membership in any labor organization
of its employees by discriminating against any employees
in regard to the payment of commissions earned by them
or in regard to any other term or condition of their
employment.
(c) Offering to deal directly with employees in disregard
of the employees' duly chosen bargaining representative.
(d) Making promises of promotions or of other benefits
or threats to withdraw privileges or threats of other
reprisals to employees in order to discourage their support
of or affiliation with the above-named Union or any other
labor organization.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms and
conditions of employment with Local 445, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive
collective-bargaining representative of all the employees in
the appropriate unit described above and, if an agreement
is reached, embody it in a signed contract.
(b) Make whole Winfield Benoit, Albert Mazziotta,
Lawrence Ranford, and Charles Straight in the manner
set forth in the section of this Decision entitled "The
Remedy" for the commissions which were not paid to
them because of Respondent's discrimination against
them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all sales
records and other records necessary to analyze the
amounts due under the terms of this Recommended
Order.
(d) Post at its premises in Kingston, New York, copies
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 3, after being duly signed by its representative,
shall be posted by Respondent, immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.18
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain collectively with
Local 445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
exclusive representative of all employees in the unit
described below, with respect to wages, hours, and
other working conditions and, if an understanding is
reached, embody it in a signed contract. The
appropriate unit is: -
All salesmen employed by King
Chrysler-Plymouth, Inc , at its Kingston dealership,
excluding all shop employees, office clerical
employees, and all professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT discourage membership in the
above-named Union, or,any other labor organization of
our employees, by discriminating against any of our
employees in regard to the payment of commissions
earned by them or in regard to any other term or
condition of their employment.
WE WILL NOT offer to deal directly with employees
in disregard of the employees' duly chosen bargaining
representative.
WE WILL NOT promise employees benefits or
threaten employees with reprisals to discourage their
support of or affiliation with the above-named Union or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization, to form, join, or assist
the above-named Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL pay to Winfield Benoit, Albert Mazziotta,
Lawrence Ranford, and Charles Straight the
commissions earned by them but which were not paid
to them because they were engaged in a strike at the
time said commissions became due and payable with
interest thereon at the rate of 6 percent per annum.
KING
CHRYSLER-PLYMOUTH,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3100.