Kohl Motors, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 324 (N.L.R.B. 1970)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kohl Motors , Inc. and Local Union No. 445 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases 3-
CA-3815 and 3-RM-427
August 27, 1970
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
On March 17, 1970, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had unlawfully inter-
rogated two employees but that it had not engaged
in the other unfair labor practices alleged in the
complaint and recommending that no formal cease
and desist order should issue and that the complaint
be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. In addition, he recom-
mended the overruling of the objections to the election
in Case 3-RM-427. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
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 these cases 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
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 Trial Examiner, and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for Local
Union No. 445, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, and that said labor organization is not
the exclusive bargaining representative of the employ-
ees in the unit found appropriate within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before me on January
5, 6, and 7, 1970, at Poughkeepsie, New York. This is
a consolidated case, in Case 3-CA-3815 the General Counsel
issued a complaint on September 9, 1969, based on a
charge filed on June 25, 1969, by Local Union No. 445,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union,
against Kohl Motors, Inc, herein called the Respondent
or the Company. In Case 3-RM-427 the Board conducted
an election on June 18, 1969, and the Union thereafter
filed objections to the election, on August 29, 1969, the
Regional Director directed a hearing on the objections.
The issues arising from both cases are whether the Company
improperly interfered with a free election, and whether
it violated Section 8(a)(1) and (5) of the Act. Briefs were
filed after the close of the hearing by the General Counsel
and the Respondent.
Upon the entire record, and from my observation of
the witnesses I make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kohl Motors, Inc., a New York corporation, maintains
its principal office and place of business in Poughkeepsie,
New York, where it is engaged in the sale of automobiles
and related products, and in the repair and servicing of
such vehicles. During the past year the Company sold
and distributed products of a gross value in excess of
$500,000. During the same period it received goods valued
in excess of $50,000 transported to its place of business
in interstate commerce directly from States other than
the State of New York. I find that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to exercise
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
' After the close of the hearing both the General Counsel and the
Respondent filed motions to correct the transcript, in all respects but
one the suggested corrections relate to obvious typographical errors
Both motions are hereby granted, and the record corrected accordingly,
with a single exception The General Counsel's request to alter 1 17
on p 169 of the transcript is denied
185 NLRB No. 69
KOHL MOTORS, INC 325
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The essential question in this case is whether the Respond-
ent so conducted itself during the Union 's organizational
campaign among its employees as to have violated the
statute to an extent , and in such a manner , as to warrant
a Board order to bargain now with the Union as the
exclusive representative of all the employees . Within a
4-day period-May 16 through May 19, 1969-20 conceded-
ly rank -and-file workers, out of the approximately 31
employees in the bargaining unit , signed regular authoriza-
tion cards in favor of the Union . Another signed on May
21 and two more on May 23 On the 22d the Union
demanded recognition and the Respondent refused, on the
ground it doubted the Union had been authorized by enough
employees . About 17 employees struck on Monday, May
26, and picketing began . On the same day the Company
filed a petition with the Board's Regional Director requesting
an election to test the Union 's assertion of majority repre-
sentative status . As the week wore on employees started
to return to work . On the morning of Monday, June
2, the Union formally advised the Company that the strike
had ended and offered to return all the strikers to work.
They resumed work on Tuesday morning.
A Stipulation for Certification Upon Consent Election
was signed by all parties on Rine 9 and the Regional
Director conducted a secret election on June 18 The Union
lost by a vote of 21 to 6 A week later the Union filed
both objections to the election , and a refusal -to-bargain
charge.
There is a logical and inseparable interrelationship
between the two consolidated cases in this proceeding.
If the representation case be considered out of the total
context-as though no unfair labor practice charge had
ever been filed and, of course, no complaint issued-all
that would have to be decided is whether there is merit
in the Union 's objection to the election , this means that
either the election must be set aside and a new one held,
or the results adverse to the Union must stand , with the
Regional Director certifying the final results. Appraising
the present posture of the representation case aspect of
the consolidated hearing in this light, two rules of law
apply, the first established by the Board and the second
established by the statute . The only conduct of the employer
or its agents that may be considered in support of a union's
objection to any Board election is that which occurred
between the time the petition was filed and the election was
held 2 If it is found that within this circumscribed period
there was interference sufficient to put in question the
reliability of the results of the balloting, a new election, of
course, is held If the objections do not warrant setting the
election aside , there can be no second election conducted by
the Board during the next 12-month period 3 In this latter
event the question arises whether the employer may, as did
the Respondent here, alter conditions of employment by
direct dealings with its employees without regard to the
union which had previously been authorized but later
rejected in the Board-conducted election
Turning to the complaint case aspect of this proceeding,
and assuming for the moment that there had not been
any representation petition filed-more importantly , assum-
ing there had never been an election held-other principles
of case law would apply. There would be no limit upon
the question-temporal or otherwise-of employer conduct
to be evaluated . In classic form the first inquiry would
be whether a majority of the employees in an appropriate
unit did in fact authorize the charging union-in written
form-to bargain on their behalf. When the proper majority
status is established , and a demand and refusal proved,
the next question is whether the refusal to bargain constitut-
ed a violation of Section 8(a)(5) of the Act, or that the
evidence shows the employer willfully rejected the collective-
bargaining principle Of special pertinence to this case,
however , is a third question presented whenever there has
been an illegal refusal to bargain , or a violation of Section
8(a)(5). Were the unfair labor practices committed by the
employer of such a nature as to justify an order by the
Board-as a remedial measure-that it proceed to bargain
on the basis of the majority established by signed authoriza-
tion cards, without the preliminary necessity of a secret
election among the employees? See N.L.R B v. Gissel Pack-
ing Co., 395 U S 575.
The relevance in the case at bar of all the legal principles
set out above can best be appreciated if the events brought
to light at the hearing be considered in coherent sequence.
B Appropriate Unit, Union Authorization; and Majority
Status
The complaint alleges, the answer admits, and I find
that all full-time and regular part -time production and
maintenance employees at the employer 's establishment in
Poughkeepsie , New York, including all partsmen , mechan-
ics, body shop employees , new and used car get-ready
men, utility men and plant clericals, excluding all salesmen,
office clerical employees , guards and supervisors as defined
in the Act constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b)
of the Act.
The main function of this group is to service and repair
automobiles and trucks ; new cars received for sale are
cleaned and otherwise prepared for delivery . Used cars
accepted in trade are restored before resale. Warranties
on new cars sold are honored in the service and repair
shops, where the mechanics and specialists repair parts,
work on defective machines, lubricate, take care of body
damage, and generally do service work
'Goodyear Tire and Rubber Co, 138 NLRB 453
' Sec 9(c)(3) "No election shall be directed in any bargaining unit
or any subdivision within which, in the preceding twelve-month period,
a valid election shall have been held "
Nine employees signed cards on May 16, 1969, authorizing
the Union to represent them and to bargain forthwith
on their behalf Floyd Hornbeck , Philip Silvernail, Frank
Wyant , Clifford Scism , Hans Schneider , Raymond Martig-
326 DECISIONS OF NAl IONAL LABOR RELATIONS BOARD
netti, John Sherremetis, John Parole, and Linnie Parker."
Six others signed cards on May 17: Edward Fryar, James
Palmatier, Walter Cantela, Douglas Slater, Joseph Sles,
and Roger Harris Five more signed on May 19• Joe Herring,
Harold Penny, Bernard Kebler, Kenneth Bishop, and Wil-
liam Pine. Allen Kruel signed on May 21 and Robert
Perkins and Ned Johnson signed on May 23. This is a
total of 23 authorization cards.
Fifteen of these men appeared at the hearing and testified
directly to having signed the cards received in evidence
There was direct testimony by other witnesses that they
personally saw six others apply their signatures to cards-
this with respect to the cards of Parker, Paroli, Sles, Penny,
Johnson, and Cantela The card of Martignetti was authenti-
cated by Charles Campbell, the union organizer, who testi-
fied he distributed cards at a union meeting, 'including
one to Martignetti, and that in a matter of minutes Martig-
netti returned his card to the organizer signed. The 23rd
card is that of Kebler; to authenticate his signature the
General Counsel placed into evidence two New York State-
Employee's Withholding Exemption Certificates, furnished
by the Respondent, bearing the employee's signature, one
dated February 1969 and one dated January 1970. Compari-
son of these signatures and that appearing on the card
in evidence proves authenticity of Kebler's signature on
the authorization card.
I find that all 23 employees mentioned thus far authorized
the Union to represent them in collective bargaining, 21
by May 21, 1969, and 2 others on May 23 '
A document received in evidence by stipulation of the
parties shows that on May 22 and 23, 1969, there were
32 persons at work within the agreed bargaining unit,
all but 2 (Kusmuk and Asper, their supervisory status
disputed) rank-and-file employees. All 23 employees who
' All these cards, as well as those mentioned hereafter in this report,
read as follows
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 445
Headquarters
2 Post Street, Yonkers, New York
Authorization for Representation Under the National l ahor
Relations Ait I, the undersigned , employee of the
Name of Company
I mployed as
Job lisle
Hereby authorize the International Brotherhood of
Teamsters , Local 445, to represent me and , in my behalf, for
the purpose of collective bargaining to negotiate and con
elude 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
The full power and authority to ad for the undersigned as
described herein supersedes any power or authority hereto.
fore given to any person , or organization to represent me and
shall remain in full force and effect for one year from date
and the re' fter subject to thirty ( 30) days written notice of
my desire to withdraw such power and authority to act for
me in the matters referred to herein
(Signature of I mployee)
Home Address
Date
' There is a 24th card signed by Milomir Kusmuk, according to
credible evidence The General Counsel disputes the Respondent's conten-
tion that Kusmuk is a supervisor as defined in the Act There is no
occasion to pass upon the validity of Kusmuk's card in this case as
the Union's majority status would in no event be affected thereby
signed cards as set out here are listed on the document
Accordingly I find that on May 22 the Union represented
a majority of the employees in the bargaining of the
Respondent's employees in the appropriate unit within the
meaning of Section 9(a) of the Act
C. Alleged Supervisory Status of Philip Asper
Both the Union's objections to the election and the
complaint rest in substantial part upon antiunion and
coercive statements charged to Philip Asper, who works
as a service writer in the auto service and repair parts
of the overall premises. The contention that he speaks
for management is based primarily upon the fact that
he goes about the place with the word "foreman" written
on his shirt, and that in an affidavit given during the
investigation stage of the proceeding, Howard Kohl, the
owner and operating head of the Company, included Asper's
name among others as "supervisors," who "can recommend
hiring or firing employees," "supervise employees, and assign
work to various employees."
The record evidence does not support the requested find-
ing that Asper is a supervisor. Neither another man's
opinion (a superintendent's conclusionary statement of opin-
ion, standing alone or in conflict with objective facts, would
hardly sustain challenges to a lower foreman's ballot), nor
a label (a rose by any other name . . . etc.) can suffice
to exclude an ordinary workman from the coverage and
protection of the Act as an employee. It is the facts of
what the man does during the working day in his relations
vis-a-vis the other employees that illumine and determine
the question whether he falls within the definition of supervi-
sor set out in Section 2(11) of the statute. Asper has
to be in the shop before others to meet the first customers
as they arrive, and therefore starts work at 7 30 a.m.
He stops later, after most of the production workmen
have left, because he deals with customers and must look
to delivery of cars at the end of the day. He is therefore
salaried, and not on the clock. He therefore also initials
the timecards of the mechanics, or others, when they have
occasion to do overtime Someone must attest to the fact
this other work is performed for it has to be paid Asper
is there early and late, so he does this. At times his
superior, who also has long hours, does it Sometimes
the bookkeeper sees the people at work and initials the
cards. Above his salary, Asper receives a bonus- forty
percent of one percent of the gross amount paid by customers
pursuant to the work orders he takes from them when
they bring their cars into the shop for work repair. The
more the customers pay-or the more he sells them-
the more he earns. The mechanics-who constitute the
bulk of the more skilled and therefore higher paid work-
men-also receive a bonus, depending upon what the cus-
tomers pay for the work which they do on the cars.
There is nothing in the statute which says that a bonus
compensation arrangement, or the function of initialing
overtime cards, mark a supervisor.
Asper spends most of the morning filling out customer
orders as the cars are brought in for service. He is an
experienced mechanic and understands the business. Part
of his responsibility is to reduce the customers' complaints
KOHL MOTORS, INC 327
to words which will both faithfully reflect the customers'
wants and be intelligible to the workmen who will later
have to perform the services. The men to whom he then
distributes the orders, all mechanics and lubrication men,
are each specialized in one area or another-transmission,
rear end, body shop, air-conditioning, front end, air and
water leaks, lubrication, etc. He knows which men are
qualified and designated to do certain work, and therefore
"assigns" the jobs in accordance with such qualitative selec-
tion. It is this assignment of work that is said to be
the prime evidence of his supervisory status. For the rest,
Asper's duty is to maintain contact with the customers
throughout the day, by telephone, to advise them in advance,
and to obtain their approval, of unexpected increased costs
for repair of their cars, to answer their inquiries as to
promptness of promised delivery, to advise them that jobs
may not be completed as initially expected, to put at
rest any other problems that may apse with the customers,
and to calculate costs and bills To accomplish all of
this he is in constant touch with the shop mechanics,
to inquire how much time a particular job will take, to
learn if additional work is necessary, and to check on
scheduled delivery of cars. It was not shown that he in
any way passes upon the quality of their performance,
instructs them, or pressures them into finishing an assign-
ment by a particular hour. He does no manual work himself
during the scheduled workday, but after regular hours,
if some small final adjustment or tuneup will complete
a job for immediate delivery, he finishes off a car himself.
On occasion his superior, Robert Clearly, the service
manager, or the plant superintendent, James Garafolo, will
tell him some overtime work should be done and that
he, Asper, should search among the mechanics to see
which if any is willing to stay. Asper then inquires down
the line, successively asking the men if they are agreeable.
They know the decisions are made higher up, they do
as they wish, and they are under no duty to oblige him.
He has no power to hire or discharge employees, or to
alter their employment conditions in any way, he does
not attend the supervisor meetings An air-conditioning
repairman named Kurt Smith, an old friend of Asper's,
testified that one day while he was in the shop to buy
certain parts, the service writer asked was he without
work and if so did he wish to join the Respondent Smith
asked what the offer was, Asper told him, and Smith
answered he would think about it. A week later he tele-
phoned Asper, said he would except, and reported to work
a day or two later upon Asper's approval. It was then
shown that Smith had worked as an air-conditioning special-
ist for a company named Eddy's Esso, that in this position
he worked on such problems on automobiles from the
Respondent's shop contracted out to Eddy's Esso, that
Respondent's superintendent, Garafolo, knew of Smith's
ability and instructed Asper to inquire whether Smith would
come to work, and even told Asper what the rate of
pay would be. In the circumstances this single incident
is not enough to prove Asper either has independent authori-
ty to hire or to effectively recommend hiring. Moreover,
Smith himself later recommended a neighbor, one Richard,
to Asper as a lubrication man. Asper checked with Garafolo
who decided Richard should be hired, and Asper then
instructed Smith to advise the new man and dust bring
him to work. Richard therafter came after speaking only
to his friend Smith, but the fact hardly serves to make
Smith a supervisory employee.
I find that Asper was not, either at the time of the
Union's organizational campaign in the spring of 1969,
or at the time of the hearing, a supervisor within the
meaning of the Act.6 There is evidence several employees
solicited his signature to a union card and that he thought
little of the idea. He may even have spoken out freely
in favor of direct dealings with the Company instead of
collective bargaining . To the extent that the objections
to the election rest upon statements voiced by management
representatives, it is Asper's conduct that constitutes the
major part of the Union's supporting evidence None of
it can serve that purpose
D. The Objections to the Election
It will be recalled that the representation case petition
was filed on May 26, a Monday, the first day of the
strike and picketing. If the objections are to be sustained,
it must be on the basis of interference by management
that occurred between that day and June 18, when the
election took place. Frank Wyant, a mechanic who quit
the Respondent's employ on the second day of the strike,
testified to conversations about the Union with two supervi-
sors-Thomas Galvin, a sales manager , and Anthony Casale,
a shop foreman His talks with Galvin took place before
the strike, and therefore of necessity before the filing of
the petition. They have nothing to do with the objections
On the day after the strike-apparently Tuesday, May
27-Wyant was in a diner restaurant adjacent to the shop
location, having coffee with another employee and Foreman
Casale He testified Casale asked why the men did not
go back to work, and " . said he didn't see why we
should be out walking when, if we talked to Mr. Kohl,
that he would come to some kind of an agreement that,
you know, the Union could not do any more than he
could do for us." Later, on cross-examination he added
to this version by saying Casale also said: "He couldn't
see what we were out there striking for, why didn't we
set up a meeting with Mr. Kohl so we could talk it
over." This idea-a promise that the Company would oblige
the men if they rejected the Union-does not appear in
Wyant's earlier affidavit. His final statement was that the
correct quotation of Casale's words are those appearing
in his affidavit: "I don't see why you guys can't get together
with Kohl."
Casale recalled the conversation in the diner that day,
and denied saying the men should not picket, that they
should get together with Kohl, That Kohl would give
them more, or that he could arrange an appointment.
According to Casale it was Wyant who started the talk
by saying. " It is too [obscenity] hot to be walkin on
a picket line. . . . I don 't give a [obscenity], because
I am going on vacation this week, and that is the end
of this. [Obscenity] the Union "
6 Fuller Automobile Cc, 88 NLRB 1452
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Casale here. Between the two, Wyant's demeanor
as a witness was by far the less impressive , and his testimony
in its entirety shows a number of inconsistencies and vacilla-
tions. He did in fact leave the Company the very next
day, as Casale quoted him . More important , Wyant himself
admitted that during the same conversation . "I said the
Union wasn ' t any good , couldn't do anything for us "
But this is precisely the attitude indicated in Casale's version
of their talk . If then , as Wyant's affidavit reads, Casale
did say he could not understand why the men did not
"get together" with the owner , it was no more than an
innocuous comment invited by Wyant, and by no means
instigation by the supervisor to abandon the Union.
It was a short -lived strike About 16 or 17 men quit
work the first day , some returned during the week and
a much smaller number was still out the next Monday
morning. By noon the Union called the whole thing off
and formally notified the Company It was decided the
hour was too late to start work that day and the men
returned on time Tuesday morning At 3 or 4 o'clock
Monday, after all picketing had ceased , three of the strik-
ers-Martignetti , Schneider and Harris-asked to see Kohl
personally and he received them in his office. The record
strongly shows Martignetti was the most articulate of the
three that day; indeed there is indication he was quite
a leader in the earlier organizational activities . The four
men talked for 2 or 3 hours if not more. By the end
of the hearing there was very little disagreement among
the witnesses as to what was said The only conflict in
testimony goes to one point Someone spoke of a three-
man committee to be selected by the men and to voice
employee complaints periodically directly to Kohl Was it
Kohl, or was it the employees9 Schneider and Harris
testified for the government ; Martignetti , still an employee,
was not called as a witness.
It seems that after the strike had ended , Kohl distributed
a form letter to all the striking employees , by mail to
those at home and in hand to those still in the nearby
area. Some were distributed by a salesman personally to
these three men in the nearby diner . Schneider started
by saying he, as well as Martignetti and Harris , did not
understand the purport of the letter and wanted an explana-
tion from Kohl, and that this was why they went to
see him Among other things the letter contained a warning
against vandalism or pilferage during the strike. Schneider
started by saying that after some talk about the letter,
Kohl "said we should have come to him first . . . and
maybe the Union deal would never have started , and then
we started talking about , you know , what we really wanted
and we told him . . pension plan and retirement, and
so Mr . Kohl told us that he was looking into the matter
already, but he couldn 't tell us nothing about it right
now " Asked did he recall anything else, Schneider added.
"I think there was something mentioned about a three-
man committee Q. Well, who mentioned it? A. I think
Mr Kohl ." He could remember nothing else Prodded
several times by the General Counsel , and despite leading
questions put to him, he kept repeating again and again
he recalled nothing more With the Trial Examiner asking
the witness to make a better effort, Schneider then added
11 . he [Kohl] said he wouldn ' t associate with the Union
He said if it has to come right down to it, we have
to take an election ." And again he said he remembered
nothing more. Now the General Counsel placed his affidavit
in the witness' hand . With this in front of him, Schneider
then added- "He said , he was going to give us, you know,
give us pension and set up a different payroll." Haltingly
and prodded again , the witness then continued: "He was
looking into a pension , but right now he says he couldn't
tell us anything about it, because-on account of the Union,
he couldn 't promise us anything right now "
In consequence of persistent cross-examination Schneider
then added much more to the 3-hour conversation , matters
that started to shed a different light upon the conversation
that day First he admitted Kohl said "he was forbidden
to grant any pensions," and then added " he said he
could make us no promises , and he is not even supposed to
be talking to us That isjust the way he said it "
Q At any time during this conversation did you,
Martignetti-who was the third one?
A Floyd-
Q. Roger Harris . Did any of you three express dissat-
isfaction with the Union?
A I don 't remember . Something was said about the
Union, but I don ' t remember what was said. I do
think Roger said-I don't remember.
Q. Please try to search your memory here, because
this is fairly important.
A. I will I think-if I remember now, I think Roger
said-he says, you know , Mr. Kohl , "If your were
to come to us and talk these things over with us
or something, this would never have happened."
TRIAL EXAMINER Who said that?
THE WITNESS Roger Harris.
Q Do you recall them asking Mr Kohl if it was
possible to get out of this Union deal now , or words
to that effect?
A. I think Ray Martignetti said I'm not sure, I
think he said something like that. There was something
said like that.
Q Did he [Harris ] say anything about the Union
going to have 300 pickets out there, and they welched
on this?
A. Yes, Campbell said that.
Q. No, I mean, did you or Martignetti or Harris
say this to Mr. Kohl?
A No. Yes, yes, yes, yes.
And finally:
A. He [Martignetti ] says he was getting tired of
Chuck Campbell going away from us . That he did
say, yes
Q Did he say where Campbell was?
A. Yes, he says in the Three Caballeros [a restaurant].
As he went on Schneider recalled something of more
direct relevance to this case
Q In this meeting, Mr. Schneider , do you recall
complaining about Mr . Garafolo9
KOHL MOTORS, INC
A Yes, I think there was something said.
Q. What was said?
A If I remember right it was said because the way
he was handling the employees, one get this, the other
gets that, and I think that's what we was talking
about.
Q. Do you ever recall telling Mr Kohl that, if an
employee had a gripe or a complaint and it would
go to Garafolo and no further?
A Yes,yes
Q Did you complain that your gripes or complaints,
that you would tell Garafolo, would never get to
Mr Kohl?
A. Right. We did say that.
Q At this time did you or Harris or Martignetti
suggest a method where you might speak to Mr. Kohl
rather than Garafolo?
A I never did, never had the reason to do so but
I think Roger Harris did and Martignetti did
Q. What did they say?
A. Well, everytime they went to Mr Garafolo and
didn't get no results, I guess, and so-I don't know
if Mr. Kohl found out-he went to see Mr. Kohl
about anything or not; I can't say. I couldn't say.
Q. No, but, at that meeting with Mr Kohl, did
Martignetti or Harris or you suggest a method at
this meeting whereby in the future you could speak
to Mr. Kohl rather than Mr. Garafolo?
A. Yes.
In his direct testimony Harris spoke virtually no more
than two paragraphs on what went on during that 3-
hour meeting with Kohl
Q (By Mr. Sheridan) What was the conversation?
A. We started talking about the Union, Mr. Kohl,
and he showed me some papers about the pension
plan that he was going to try to get in and then
we was talking about that, and he says that really
we didn't have to have the Union come in the shop
anyway "if you fellows were to come in and talk
to me " He says, we could get a three-man committee
going and have one man to be a spokesman and,
if anything, you know, that didn't go wrong in the
shop, any little problems or something like that, he
says, the three-man committee could have come in
and talked to me and we could have gotten it straight-
ened out.
Q. Do you recall anything else that he said?
A. No. He says about the, you know, the pay He
says, you know, but he couldn't promise us anything
about the pay
Later, again on cross-examination , Harris was pressed
for a more detailed story He insisted he had no recollection
whatever of the contents or even subject matter of the
original letter which prompted the meeting nor of anything
the men asked or Kohl told them in explanation Repeatedly
he said he could remember nothing else.
Q [By Mr. Durant] The only thing he did mention,
though, was the three-man negotiation team?
A. Right.
Harris continued that there was no talk of employees
being dissatisfied with the Union, that the name of Campbell,
329
the union organizer , was never mentioned , that there was
no talk of Garafolo (this last denial he repeated more
than once). Finally he admitted that the men did ask
for more money, benefits, vacations, and that Kohl answered
he could make no promises. He closed with repeating
it was Kohl, and not Martignetti, who first spoke of "your
own little Union in the shop; have a three-man committee,
have a spokesman for the group "
In its totality Kohl's version of this meeting is consistent
with all that Schneider and Harris said with the sole
exception that he denied having brought up the subject
of a three-man committee, or direct employee spokesman
representative , and said instead that it was Martignetti
who proposed it. As he recalled it, Martignetti was the
lead talker and the major trust of the entire visit was
that the men complained of Garafolo's treatment toward
them all whenever they went to him for anything-raises
generally, complaints of disparate treatment on wages, unfair
vacation benefits, etc. Their point was that they could
never get past Garafolo to reach Kohl with their complaints
"Now, the first thing then out of their mouth is. that
basically-and this is Martignetti-Martignetti is talking-
he says-you know-'One of the ways we could solve
this thing is to have a three-man committee."' Kohl told
of how the men spoke of improved benefits they desired,
with special emphasis on a pension. He added that, while
always repeating he promised them nothing definite, or
even whether they would in fact ever be any pension
at all, he did tell them he had been looking into the
matter many months before, and showed them some old
correspondence on the subject between him and an insurance
company.
I credit Kohl.' So far as this entire proceeding is con-
cerned, the only really important point in all this testimony
about the poststrike meeting is whether Kohl tried to
influence the employees away from the Union and towards
direct dealing with him. In the light of admissions by
the General Counsel's own witnesses, no persuasive argu-
ment can be made that Kohl otherwise said anything
improper that day. His story fits logically into the total
picture of events In contrast, both Schneider and Harris
tried their best to quote him out of context Their repeated
insistence that they could remember nothing else, or ever
so little, of a 3-hour talk greatly impaired their credibility
And Martignetti, who did most of the talking, never did
appear as a witness To start with, it was the employees
who wished to talk to Kohl, not he who approached
them. I do believe he told them straight off their direct
appeal to him compromised his position, and that he could
not, and should not promise them anything. That they
wanted something was obvious, for they had just abandoned
' Kohl himself was less than candid at the hearing His letter of
June 2, the one which the employees used as a pretext to talk to
him in his office, states he had already received the Union's notice
of abandonment of the strike and of intention to return everybody to
work And yet he testified that when he returned to the plant soon
after noontime with the copies of this letter for distribution, it was
"a thunderbolt from the blue" for him to see the picketing had ceased
Every case, however, must be decided upon the totality of the record
as made, and with due consideration of the comparative demeanor of
all the witnesses
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike. Whether Kohl protected himself because his
lawyer had correctly advised him, or whether he in fact
had no desire to influence the men unlawfully is immaterial.
The fact is he made clear there could be no change in
their working conditions until the question of union repre-
sentation was resolved.
That in the circumstances the men would themselves
suggest some form of direct dealing with the Respondent
is an inference amply supported by related facts. A number
of employees testified a reason for turning to the Union
in the first instance was because a few weeks earlier a
mass appeal to Garafolo for improved benefits had been
highhandedly rejected without the men being able to reach
Kohl. There is no evidence, nor is it claimed that the
men decided to quit the strike because of any conduct
on the part of management. Rather, there is much to
indicate the men became disillusioned with the entire ven-
ture Campbell, the organizer, had promised much support
of the strike by union members from other employers,
but, as one or two witnesses said, he let the men down
in this respect. According to Schneider, Martignetti told
Kohl that he had promised 300 pickets and failed to keep
his word "I remember we were saying [to Kohl] we were
sick and tired of walking up there." Some employees also
complained that while they walked the picket line in the
heat, Campbell spent too much time refreshing himself
in nearby restaurants And early Monday morning, June
2, Campbell was picked up by the police at the picket
line because of some pending traffic violation case. Whether
the men decided to forget about this aspect of union activi-
ties, at least , in consequence of the financial strain on
themselves, or because of a more deep-seated disaffection
towards the Union, is of little moment What matters
is that having decided strike pressure could not win the
original aim of forcing their attention upon Kohl via the
Union, they could be expected to try another way-by
a committee, or a spokesman of some sort. And finally,
with Kohl careful, as the employees both conceded, to
make it clear he could promise them nothing and intended
to stay clear of any illegal involvement at that moment,
it is highly unlikely he would suggest a company union
right then and there. I find that it was Martignetti's idea
and if the owner commented he would prefer dealing with
his employees without a union , he had a right to express
the thought.
I find nothing in what Kohl told these three men on
June 2 that tends to support the Union's objections to
the election later in the month. In his brief the General
Counsel argues that Kohl bought the men off with the
promise of a pension . Employee Schneider's testimonial
version of the meeting was that when he and his friends
started to tell Kohl what they "really wanted," the first
item was "pension and retirement " And both he and
Harris were clear in their stones that no promises were
made to them.
The next morning Martignetti invited another employee,
Hornbeck, to accompany him, and again asked to see
Kohl in his office. And again only Hornbeck testified
about their talk, Martignetti's story, the more critical one,
still missing . Like that of Schneider and Harris before
him, Hornbeck's testimony tells one story on direct examina-
tion but sounds quite different in the retelling on cross.
He started with the fact Martignetti went in there because
he "wanted to talk to him about something that he was
talking to us about the night before or something, and
Mr Kohl was talking to us about-saying that he figured
on a pension plan and stuff for us, and that we didn't
know anything about it, of course and then they started
saying something about a three-man committee " "I believe
Mr. Kohl did . . . he had said he would like to see
the shop get together and form a three-man committee,
and we could work out the problem out of the shop
through that." Hornbeck then continued that Martignetti
asked "about raises and different things, and Mr Kohl
told us that he couldn't talk about any raises or anything
He couldn't promise us anything at this time."
Much later in his testimony Hornbeck recalled that Kohl
made clear there was no certainty the men would ever
receive a pension, that he could promise them nothing,
and that no one would be discharged in the event the
Union "fell through." Then came the following-
Q. (By Mr Nichols) Do you recall whether the subject
that Martignetti wanted to talk to Kohl about was
how he or how he and any other employees could
go about getting out of the Union at that stage?
A Well, he had talked about it while we were in
there
TRIAL EXAMINER Who did?
THE WITNESS: Ray Martignetti started talking about
it when we were in there
TRIAL EXAMINER: He started to talk about it?
THE WITNESS: Yes.
TRIAL EXAMINER' What did he say?
THE WITNESS: Well, he said that-something about
the boys had talked to him, and wanted-was wonder-
ing if there was any way that they could drop the
Union-the exact words, I don't really know what
was said, but he wanted to know about-I think that
is from when they-if they voted it down, I think
that is when Martignetti asked Kohl if the guys would
be-if anybody would be fired if it would be-if it
was voted down
Q. (By Mr. Nichols) Did he also ask Kohl how
they could get out of the Union at that point?
A During the conversation of the time were in there,
I believe he did say it.
Kohl denied saying anything about wanting the shop
to get together and form a committee, or asking why
the men had not come to him directly before joining the
Union. He testified Martignetti said he wanted Hornbeck
to know what had been discussed the day before, and
gave the owner to understand that he, Martignetti, wished
to reassure Hornbeck nothing had happened behind his
back. It is a fact Hornbeck had been one of the lead
organizers Kohl paraphrased what had been said the day
before. I credit him as to this conversation also
With the activities of the service writer, Asper, and
of the owner Kohl, giving no support to the objections,
the only remaining evidence said to support the objections
are statements attributed to three other supervisors: Cleary,
the service writer manager , Galvin, a sales manager, and
Casale. Hornbeck testified that about 1 week before the
KOHL MOTORS. INC 331
election he and Cleary were in conversation about the
Union and the coming election and that as they talked
Cleary asked when the election would take place and how
Hornbeck felt about it, whether he was "still going to
vote for the union " Hornbeck said he probably was known
around the place as a union supporter because of an earlier
campaign that had taken place . Cleary denied having asked
the question , but I believe Hornbeck as to this point,
for there was then much talk of the pros and cons of
unionism in the plant at the time Harris testified that
also shortly before the election Galvin asked him was
he for the Union , and that when Harris replied yes, the
foreman told him he had been "connected with the unions
before, he says, and the Union to-to get in the Union
you got to pay $200 , $300, he says , and he says, 'Anytime
they want to, you know , to go on strike, they can pull
you out and put you on strike."' Galvin did not testify
and therefore I believe Harris here.
Harris spoke about some talk on the picket line, during
the strike , with Casale His only reference to this incident
was "he says, 'why don't youse go back to work and go talk
to the boss, because he thinks if we go in and talk to him, he
could do better than what the Union would do for us "'
Casale was called as a witness by the Respondent, he was
not asked about this particular conversation with Harris on
the picket line, but he did deny talk of the same kind with
Wyant, in the nearby dining room at about the same time.
He expressly denied telling Wyant the men could get
together with Kohl, or that Kohl could give the men what
the Union would not, or that an appointment might be
arranged
E The Merits of the Union 's Objections
The heart question in any objections case is whether
there was such improper interference by one of the contend-
ing parties as to warrant a Board finding that the results
of the election cannot be relied upon, and that the employees
should therefore be polled again And the issue cannot
be determined on the basis of an out-of-context selection
of a pinpointed phrase here and there, or by appraisal
of only selected incidents without regard to other, equally
relevant factors The situation is not entirely unlike a ques-
tion of motivation in the discharge of a union-minded
employee . Harris, as a witness to lengthy conversations
with management representatives , showed a marked inclina-
tion to remember only those phrases pointing a finger
of guilt towards the Company . What else was said on
the picket line when Casale asked why he was walking?
In view of Schneider 's belated admissions of what happened
during the 3-hour meeting on June 2 in Kohl's office,
Harris' insistence he could remember nothing but a single
incriminating statement by Kohl that day, casts a serious
doubt upon all of his testimony . And Casale did credibly
deny making the same statements to Wyant that Hams
charged to him later And when , after abandoning the
strike a few days later, three of the men called on the
owner , he promised them nothing but instead made it
clear they could not count on him then . It will not do
for the Union to argue that Harris and two others turned
to Kohl because Casale said the boss was a "regular guy."
Had there been anything to Casale's words, Kohl would
have given the ex-strikers some comfort , he did not
Twenty-three men signed union cards in May but only
six voted for the Union a month later . Harris denied
there was talk in Kohl's office of the men themselves
having a change of heart towards the Union , but he lied.
There is evidence that to a certain extent, at least, their
dissatisfaction stemmed from other sources. The very fact
they voluntarily abandoned the strike is further indication
that rejection of the Union later in the election was not
the result of employer interference . And Kohl did reassure
them, after the foremen , Cleary and Galvin, had questioned
one or two employees , that there would be no recrimination
after the whole thing was over , either way.
In my judgment all that was shown to have occurred
between the filing of the petition and the day of the election
is not enough to support the object ions. I find that there
is no merit in the objections and that the results of the
election must stand.
F The Unfair Labor Practices Violation
1. Section 8(a)(1)
The complaint alleges violations of Section 8(a)(1) and
(5) of the Act. I find that Foreman Cleary's questioning
of Hornbeck as to his union sentiments , and Foreman
Galvin 's like questioning addressed to Harris, constituted
violations of Section 8(a)(1)
A day or two after the card signing started , but before
the strike, Harris was road testing a car with Garafolo,
the service coordinator According to Harris, Garafolo asked
had he signed a card , and when Harris answer yes, Garafolo
said - "No Union or nobody else is going to tell me or
Kohl Motors what to do." As Garafolo recalled it, it
was Harris who volunteered that "a couple of fellows
have signed cards for the union ." He denied asking had
Harris himself signed or saying that no one would dictate
to the Respondent , but added " It hit me like a ton of
bricks," and admitted telling Harris "-all the fellows in
the shop are given jobs , nobody hits you over the head
with a hammer saying you have to have the job out at
any specific time, nobody breathes down your neck, I
am just flabbergasted." Garafolo added he quickly reported
this to Mr. Kohl. I believe he did ask Harris whether
the man had signed up with the Union , and as in the
other two incidents , I find his question, in the circumstances,
was also coercive , and of the kind that is prohibited by
Section 8(a)(1) of the statute as construed by the Board
Struksnes Construction Co., 165 NLRB No. 102
And finally there is testimony by former employee Wyant
about twice overhearing Foreman Galvin talking to a group
of workmen , perhaps five or six, including Penny and
Bishop . He said this happened while he was still employed-
and it would therefore be before the strike started and
before the petition for an eletion was filed . He said that
on each occasion the foreman was talking generally-"I
don't know what they were talking about"-and that from
6 feet or so away he heard Galvin say ". . I don't
see why you signed the cards , and, if you strike, you
are not going to have a job when you come back . .
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. The Union is no good for you . . I don't see
what the hell you guys are messing around the Union
for, trying to mess things up " Wyant said Galvin "raved
on and on" but that he could recall nothing of what
any of the employees had said Two witnesses called by
the Respondent denied flatly ever having been threatened
by Galvin, and one of these was Kenneth Bishop, whom
Wyant had placed at the critical conversations Galvin
did not appear at the hearing, but in view of Bishop's
denial, and as Wyant proved to be essentially an unreliable
witness, I do not credit him as to the talks he said he
partially overheard.
Wyant also testified that in a separate and personal
conversation Galvin asked him "Are you for the Union,"
and when he replied yes, the foreman said "I'd like to
go to one of these Union meetings." The conversation
then degenerated into gutter language, as repeated by Wyant
On cross-examination he changed this and said Galvin
had asked whether he "was going to a meeting." Asked
had he reported this version to the Labor Board investigator
in his earlier affidavit, Wyant then said "No, he [Galvin]
did not say, `Are you going to a meeting?"' "Q. And
as a matter of fact, he didn't ask you whether you were
for the Union, did he . . ? A. I don't recall that he
asked me in this conversation or not this question He
may have and again he may not have." There can be
no finding on this evidence, as alleged in the complaint,
that Foreman Galvin illegally interrogated Wyant at all•
2. Section 8(a)(5)
By telegram dated May 22 the Union advised the Compa-
ny that it represented a majority of the employees, offered
to prove the fact and asked for a meeting. The Respondent
answered the same day by saying it doubted the assertion
of majority status and advising the Union it must obtain
Board certification following an election before it would
extend recognition.
I find there was a demand and refusal at a time when
the Union in fact represented a majority of the employees
in an appropriate bargaining unit 8
Analysis and Conclusion
These are the unfair labor practices committed by manage-
ment representatives and alleged in the complaint as of
There is no merit in the Respondent's argument that the Union
did not demand recognition and bargaining rights in pertinent part
the Union's telegram reads as follows "I B of T represents an overwhelming
majority of your service department employees in a unit appropriate
for collective bargaining Our representative, Charles Campbell, has unsuc-
cessfully attempted to reach you since May 19 to advise you of this
fact and to evidence our majority status We request a meeting
with you Sat May 24 at 11 am at your showroom offices to discuss
this matter with you and to evidence our majority status " The Respond-
ent's reply the same day reads in part as follows "Please be advised
that we have a good faith doubt that you represent an uncohurst [sic]
majority of our employees in an appropriate unit if you wish
to prove your alleged majority status then we would prefer that you
use election procedures of the NLRB " Read together, the two communica-
tions remove all doubt that Kohl knew the Union was asking that he
bargain with it as exclusive representative of the employees
the moment the complaint issued on September 9, 1969.
Short of virtually a rule of law that any violation of
the statute automatically converts a refusal to bargain into
a violation of Section 8(a)(5) of the Act, it would be
difficult to find in this case that there was an unlawful
refusal to accord recognition on demand At the start
of the hearing the General Counsel moved to amend the
complaint and added, as further alleged violations of the
statute, the fact that starting late in July and continuing
into early November the Company radically altered condi-
tions of employment to the benefit of employees. The argu-
ment is now made that by such unilateral action the
Respondent bypassed the exclusive bargaining agent and
thereby also evidenced its rejection of the principle of
collective bargaining.
There is no point in detailing here either the precise
amounts of raises given or the exact form of fringe benefits
granted, for the fact of the Respondent having made all
these concessions without consulting the Union, quite as
though the employees had no interest in collective bargaining
whatever, is not disputed at all. The mechanics ended
up with perhaps an average of $15 per week more pay,
other categories received somewhat lesser raises, paid sick
leave was established, vacations were granted, hospitalization
and medical insurance benefits went up at the Company's
expense, etc. The Respondent offered an explanation based
upon economic considerations as to why all this was done
at that time, and not before or later But this goes to
another question. For the moment consideration must be
given to the meaning of this action by management in
the light of the refusal-to-bargain allegation. If the Union
then in fact represented a majority of the employees, it
there was then pending a valid demand for recognition
which the Company was improperly refusing to concede,
the unilateral raises would give rise to one inference and
have a certain meaning. If instead there was no majority
representative at the time, if the Respondent was under
no obligation to deal with the Union-if, indeed, exclusive
recognition accorded the Union at that moment would
have been tantamount to contracting with a proven minority
representative-the conduct in question must be viewed
differently.
As stated above at the start of this report, there is
an inseparable relationship in the proceeding between the
conclusive election held on June 18 and the complaint
allegation that the refusal to bargain on demand constituted
an unfair labor practice in violation of Section 8(a)(5)
and therefore requires a remedial order to bargain with
the Union now. In the recent Supreme Court decision
on the subject of the Board's authority to issue a bargaining
order based on authorization cards in place of an election,
N.L.R.B. v. Gissel Packing Co., supra, the Court spoke
at length about interference conduct by the employer "dis-
ruptive of the election process," "with the result that a
fair and reliable election cannot be held," such as to "impede
the election process." There is nothing in that decision
tending to support a contention that following a determina-
tive election, one that must be permitted to stand because
there is no warrant for holding misconduct by the employer
to have "impeded" the election process, there can neverthe-
less be an order to bargain. See also Irving Air Shute,
KOHL MOTORS, INC
149 NLRB 627• "Were the election not set aside on the
basis of objections in the present representation case, we
would not now direct a bargaining order even though
the unfair labor practice phase of this proceeding itself
established the employer's interference with the election."
It follows from the foregoing reality that a further finding
here that the violations by the Respondent's representatives
also amounted to a violation of Section 8(a)(5) of the
Act would in no way extend or alter the remedial order
that will issue. Accordingly, I make no finding that the
Respondent violated Section 8(a)(5)
Raises given employees, or other improvements in working
conditions, could, of course, quite apart from any simulta-
neous duty to deal with their union instead, be a form
of coercive restraint upon their right freely to engage in
concerted activities. Such was the case in NL.R B. v.
Exchange Parts Co., 375 U.S. 405. It is not enough, however,
that the raises are given shortly after a conclusive election
adverse to the Union. Whenever an employer improves
conditions of employment he necessarily weakens, however
slightly, their desire to seek outside representation or to
resort to collective bargaining against him . But it does
not follow from this truism that his unilateral change
in conditions of employment of itself violates the statute
regardless of all other considerations There must be some-
thing more to prove an unfair labor practice. Nor is that
requisite proof of an illegal motivation supplied by the
mere fact that there were pending at the time objections
to an earlier election. "mere pendency of objections to
a past election should not require a finding that any and
all improvements in working conditions, whatever their
source and purpose, are outlawed." Champion Pneumatic
Machinery Co., 152 NLRB 300. Compare Ambox, Inc.,
146 NLRB 1520, where the Board found such raises to
constitute violations of Section 8(a)(1) because the record
as a whole showed they were "calculated to influence
its employees' choice of a bargaining representative in the
event of a second election," and because it was "evident
that such conduct was part of an overall plan to encourage
membership in and perpetuate a company-dominated union
. . . " The ultimate test must be, in the language of
the Exchange Parts decision, supra whether the "conduct
immediately favorable to employees . . . is undertaken
with the express purpose of impinging upon their freedom
of choice for or against unionization and is reasonably
calculated to have that effect."9
There is no evidence, as of any time after the election,
that Kohl's purpose in raising benefits was to dissuade
the employees from a prounion resolve He made clear
to them on June 2 he could not, and would not promise
them anything. Cf. Seneca Plastics, Inc., 149 NLRB 420.
On the contrary there is probative evidence that the timing
of the raises was occasioned by increases in the reimburse-
ment arrangement between Kohl Motors and the Ford
Company, for which the Respondent is a franchised distribu-
tor. Documents received in evidence prove that while some
correspondence on the subject was had shortly before the
Union's organizational campaign, it was not until after
' See also Logan Co, 171 NLRB No 83, in 7
333
the election that actual permission for the Respondent
to charge Ford higher costs for new car work was given.
Moreover, Kohl's testimony that the necessity for maintain-
ing a competitive position in the light of increasing inflation
made the raises inevitable cannot be ignored.
And finally, I find unpersuasive the oral testimony of
several employee witnesses that at the first postelection
meeting of employees, where Kohl announced there would
be wage increases and other benefits, he urged them to
form a shop committee to deal with him directly as a
substitute for any union It had been the employee's own
desire in the first instance, as voiced by Martignetti when
the strike ended. Schneider testified that at the first meeting
Kohl held with the employees about 30 days after the
election, there was talk of a three-man committee and
that the next day, in the shop, an election was held and
three men selected. His total story as to who raised the
subject is unreliable His first version was simply that
Kohl had told the men to have a three-man committee
and elect their own men "If you want to make one commit-
tee it is all right." "he says we could have a three-man
committee or one-man or two-man, whatever . ." Much
later, in cross-examination, the witness said: "I don't know
what started it off because I think somebody said something
about are we going to have a three-man committee " "Q
Who do you think said it? A. I think it was Floyd Hornbeck
and Ray Martignetti Q. Do you recall if they announced
or stated to Mr. Kohl that there would be a three-man
committee? A Yes I think Floyd and Ray Martignetti
talked to Mr. Kohl " On redirect, after leading questions,
the witness shifted back again: "Q (By Mr Sheridan)
Mr. Kohl was the one who first mentioned about the
three-man committee? A. If I remember right, yes "
Hornbeck started by saying that at the first meeting,
30 days after the election, Kohl did not mention the commit-
tee He then said that it was not until a few weeks later
that Kohl said "we should elect a three-man committee
to handle the problems in the shop . . " Like Schneider
before him, Hornbeck also changed his testimony on cross-
examination. "I don't know-I mean I can't say exactly
who first mentioned it. I know Mr. Kohl said to get
the fellows-you know-to get this election, and elect the
one that they wanted." He repeated that Kohl had said
something about the subject but "I don't know exactly
if somebody had mentioned it to him before that "
It seems to be a fact that a committee was elected,
but it never met with company representatives and nothing
ever came of it.
Kohl testified at length about these postelection meetings
because he expanded upon the increased benefits he gave
and the economic justification for them As to the matter
of an employee committee, all he did was deny having
told the men they could have such a committee, or that
they should elect such a group of spokesman. The absolute
truth lies somewhere in the middle, and I make no finding
on the basis of the employees' testimony that Kohl was
the instigator of any such committee. Their stones were
too confused and they said much to indicate it was some
of the employees who brought up the subject instead of
Kohl. In any case it may well be that when they did
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so, he made no objection, or even told them to go ahead
if they wished After all, it was Martignetti who first
thought of the idea 2 months earlier If in the end Kohl
did give his blessing to such an arrangement , there was
nothing wrong in his action , for if he was free to deal
with them individually he was no less free to deal with
any individual spokesman they might choose In any event
I can only conclude that the total evidence does not support
the complaint allegation that the Respondent inspired and
fostered a company union which might discourage other
forms of organizational activities . Compare, Alberto Culver
Corporation, 136 NLRB 1432
REMEDY
The very limited , isolated , almost technical unfair labor
practices proved in this proceeding point to the administra-
tive wisdom of not entering a formal finding of illegal
conduct or issuing a regular Board order , with posting
of notices and possible further enforcement proceedings.
There were three instances of interrogation, each occurring
while a single employee was otherwise not improperly dis-
cussing the union campaign with a supervisor . Employee
Harris was involved in two of them, and his total testimony,
like that of two principal witnesses called to prove the
complaint-Schneider and Wyant-leave no doubt all three
were straining at the truth , reversing themselves on impor-
tant points and creating a false impression by stressing
only selected portions of critical conversations . There was
a very substantial change of attitude towards the Union
before the election , but there is much to indicate the change
of heart had nothing to do with the passing questions
that should not have been asked . I think no useful purpose
would be served by a formal cease-and -desist order in
this case , and shall therefore recommend dismissal of the
complaint
RECOMMENDED ORDER
For the foregoing reasons, and in consideration of the
entire record, I recommend dismissal of the complaint.