Koons Ford Of Annapolis, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1986

282 N.L.R.B. 506 (N.L.R.B. 1986)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Koons Ford of Annapolis , Inc. and District 65,
United Automobile , Aerospace and Agricultural
Implement Workers of America . Cases 5-CA-
15050 and 5-RC-11899
24 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 30 May 1984 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief. Additionally, the Respondent
filed three motions to reopen the record and the
General Counsel filed a brief in opposition to the
Respondent's first motion to reopen the record.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.
i The Respondent and the General Counsel have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F .2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge's finding that the Respondent violated Sec.
8(a)(1) of the Act by interrogating employees concerning their union
sympathies, we do not rely on his citation to Vincent et Vincent of Allen-
town Mall, 259 NLRB 1025 ( 1982), insofar as that case applies a per se
rule regarding interrogation violations. See Rossmore House, 269 NLRB
1176 (1984).
The judge recommended that the Board issue a narrow cease-and-
desist order requiring the Respondent to cease and desist from violating
the Act "in any like or related manner ." We find the Respondent's con-
duct in this case egregious enough to warrant the issuance of a broad
cease-and-desist order. Accordingly, we shall substitute the broad injunc-
tive language, requiring the Respondent to cease and desist from violat-
ing the Act "in any other manner," for the provision recommended by
the judge. See Hickmott Foods, 242 NLRB 1357 (1979).
2 The Respondent excepts to the judge 's finding that it violated Sec.
8(aX3) and (1) of the Act by granting unlawful wage increases, basing its
exception , in part , on certain factual errors made by the judge . We have
reviewed the decision in light of the record evidence and the Respond-
ent's contentions and make the following factual corrections.
The judge found that the Respondent 's new car make-ready manager,
Irv Sherbert, held a meeting with employees under his supervision and
thereafter recommended raises to General Manager Hendrick on 4 Janu-
ary 1983 . However, Sherbert met with these employees and made his
recommendations to Hendrick in mid-December 1982. In addition, the
judge stated that when Parts Department Manager Richard Gavin rec-
ommended raises in January 1983 for three of his employees , their names
were added to a list that Hendrick had already prepared containing the
names of three other employees also under the supervision of Gavin-
employees Conway, Mitchell , and James Sherbert. Employees Conway,
Mitchell, and Sherbert, however, were parts department employees in the
Porsche-Audi Division, which was not under Gavin's supervision. In cor-
recting these errors, we find that the remaining evidence as set forth by
the judge fully supports his finding that the Respondent granted unlawful
1. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by granting the
"technician of the year" award to its mechanics in
order to discourage employee support for the
Union. We disagree. As noted by the judge, the
complaint does not contain any allegations with re-
spect to this conduct. At the hearing, the Respond-
ent raised the "technician of the year" award by
way of defense to other allegations of unlawful
conduct found in the complaint. The General
Counsel stated that he was not previously aware of
such an award, but at no time did he take a posi-
tion with respect to the award, nor attempt to
amend the complaint to allege the "technician of
the year" award as a violation. Since the complaint
contains no allegation that this conduct was unlaw-
ful, and the General Counsel did not seek to amend
the complaint after he learned of the award, nor
urge its illegality, we find that the matter was not
fully litigated as a violation of the Act. According-
ly, we do not adopt the judge's finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by granting the award.
2. The judge found that the Respondent' s general
manager, Ronald Hendrick, violated Section 8(a)(1)
of the Act by threatening certain employees that
"if the Union got in he would not be able to talk
directly to the employees as he had been doing but
would have to go to the Union." The Board has
recently held in Tri-Cas4 Inc., 274 NLRB 377
(1985), that a statement concerning loss of access to
management in the event of unionization does not
constitute a threat but "simply explicates one of the
changes which occur between employers and em-
ployees when a statutory representative is select-
ed."3 Accordingly, we find Hendrick's statement
did not constitute unlawful conduct. Therefore, we
dismiss this allegation of the complaint.
3. In his recommended Order, the judge provid-
ed, inter alia, that the election be set aside, that a
cease-and-desist order be issued, and that the Re-
spondent recognize and, on request, bargain collec-
tively with the Union as the exclusive bargaining
representative of the employees in the unit found
appropriate. We agree.4
wage increases. In so finding, we agree with the judge's conclusion that
the unlawful wage increases were violative of Sec . 8(a)(1).
Further, we do not rely on any adverse inference the judge may have
drawn from employee Archie Brown's testimony that he was never eval-
uated pursuant to the Respondent's alleged semiannual review policy.
Brown was a body shop employee who was not subject to the semiannu-
al review policy described by the Respondent
Member Babson additionally notes that the unlawful wage increases
constitute independent violations of Sec. 8(a)(1) of the Act under NLRB
v Exchange Parts Co., 375 U.S. 405 (1964).
a Ibid.
4 In agreeing with the judge that the election should be set aside,
Chairman Dotson finds it unnecessary to rely on his citation to Enola
Continued
282 NLRB No. 88
KOONS FORD OF ANNAPOLIS 507
In ascertaining whether a bargaining order is
warranted to remedy the Respondent 's misconduct
we apply the test set out in NLRB v. Gissel Packing
Co., 395 U.S. 575 ( 1969). In Gissel, the Court delin-
eated two types of situations where bargaining
orders are appropriate : ( 1) "exceptional" cases
marked by "outrageous" and "pervasive" unfair
labor practices; and (2) "less extraordinary" cases
marked by "less pervasive" practices . s Thus, the
Court placed its approval on the Board's use of a
bargaining order in "less extraordinary" cases
where the employer's unlawful conduct has a
"tendency to undermine [the union's] majority
strength and impede the election processes."e The
Court indicated that when the unfair labor prac-
tices are less flagrant and the union at one time had
a majority support among the unit employees the
Board may consider
the extensiveness of an employer 's unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance , be better protected by a bargaining order,
then such an order should issue.?
In considering the Respondent's conduct in this
case the judge intimated, without explicitly stating,
that the unfair labor practices the Respondent com-
mitted fall into the second category rather than the
first category.8 We fmd it unnecessary to resolve
whether the conduct is Category I or Category II
since we fmd that the Respondent's conduct falls
into at least the second category and therefore a
bargaining order is warranted in any event.
The judge noted there were approximately 26 in-
stances from mid-November 1982 until the 12 Janu-
ary 1983 election in which four of the Respond-
ent's officials, including President John Koons Jr.,
either threatened employees with plant closure, dis-
charge, and layoff, more onerous working condi-
tions and stricter work rules leading to the dis-
charge of employees, and loss of privileges and
benefits; interrogated employees concerning their
Super Thrift, 233 NLRB 409 (1977), and Dal-Tex Optical Co, 137 NLRB
1782 ( 1962), and any language found therein
" Gissel, supra at 613-614.
°Id.at614
Id. at 614-615
e The judge stated that the case would have plainly constituted a "Cat-
egory I" case had John Koons not backed away from a prior threat to
close the plant . In issuing the bargaining order , he found that the Re-
spondent "has engaged in a pattern of unremedied unfair labor practices
which effectively destroyed the conditions for a free and fair election
[and] that those conditions probably cannot and will not be restored at
any time in the forseeable future."
union sympathies and the organization campaign;
or unlawfully solicited employees to campaign
against the Union.
The most serious of the threats were those of
plant closure, discharge, and layoff made by John
Koons Jr., Service Manager Tomarchio, and Sher-
bert. In early December during the height of the
union organizational campaign, Koons, while inter-
rogating employee Pierson about the Union, told
him that "he didn't need the dealership and he
would close it down and turn it into an apartment
building or an office building." Later that month,
at the annual Christmas party, a heated argument
ensued between Hendrick and employee Kubert.
John Koons intervened and with several employees
present stated that "he did not need Koons Ford of
Annapolis, that he had a place in Florida and could
close the doors and move to Florida and that life
would go on without Koons Ford." In response to
Kubert's statement that he would not put his job
on the line if he did not feel strongly about the
Union, Koons replied, "You already have."
Tomarchio engaged in similar threats while in-
forming employee Jones that if the Union came in
they would lose the benefit of working on cars on
their own outside the dealership. Tomarchio told
him he would be fired if he attempted to circum-
vent that regulation. He reiterated the threats
Koons made at the Christmas party by telling
Jones that Koons did not need the Annapolis deal-
ership and could close its doors and lock employ-
ees out. Additionally, Tomarchio told employees
Kubert and West that with the stricter regulations
that would be established once the Union came in,
employees could be fired or fined for coming in
late, making unsatisfactory car repairs, or asking
for more time to complete a job.
Finally, Sherbert also engaged in discharge
threats.9 While meeting with some of his depart-
ment employees after work, Sherbert threatened on
two occasions the two least senior employees in his
department that if the Union came in they would
be laid off. He also threatened employees Howes
and Buckalew with discharge, stating that employ-
ees who did "anything wrong," who "goofed," or
were "late even once" would be fired.
Other threats of reprisal were also made. For ex-
ample, General Manager Hendrick threatened that
if the Union came in the employees would lose
such privileges as "hobby night" (where employees
9 The judge specifically noted that although Manager Sherbert was a
low-level supervisor , he was "looked upon as something of a father
figure by the young unskilled employees" and "[t]herefore he was in a
position to exert strong influence on these employees " We draw no con-
clusions from how Sherbert was subjectively perceived by his depart-
ment employees and disregard the judge's remark.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used the facility to work on their own cars free of
charge), discounts on parts, loans, the annual
Christmas party, and leaving work early, all of
which benefits were considered important "perks"
by the employees. These threats were directed at
individual employees as well, as at groups of em-
ployees at regularly scheduled service department
meetings. Tomarchio also issued threats of this
nature to individual employees throughout Novem-
ber and December 1982 as did Sherbert at his regu-
lar gathering of department employees each night
after work.
In addition to threatening the employees , interro-
gating them, and soliciting some of them to cam-
paign against the Union, the Respondent unlawful-
ly granted wage increases and redressed employee
grievances. Thus, on 6 January 1983 the Respond-
ent, to discourage support for the Union, gave pay
increases averaging between 25 and 60 cents per
hour to 15 used car, parts, and make-ready depart-
ment employees . 110 For the same reason, and on
the same day, nine body shop employees had their
compensation formula changed in response to their
expressed complaints, a change that also resulted in
an increase in wages for them. Accordingly, the
judge found that the Respondent violated the Act
by both redressing employees' grievances and by
granting an unlawful wage increase."1
In determining whether a bargaining order is ap-
propriate, in addition to examining the severity of
the violations committed , the Board also examines
the present effects of the coercive unfair labor
practices that would prevent the holding of a fair
election.12
It is highly significant that many of 'the violations
present here were of an extremely serious nature.
Both the courts and the Board have long recog-
nized that threats of job loss (i.e., plant closure, dis-
charge, and layoff) because of union activity are
among the most flagrant interferences with Section
7 rights and are more likely to destroy- election
conditions for a lengthier period of time than other
10 The judge, after analyzing the increases granted to the 15 employ-
ees, inadvertently concluded that 16 employees received increases.
11 We agree with the judge that the change in the body shop employ-
ees' compensation formula constituted an unlawful redress of grievances
with or without the increase in their wages.
12 Quality Aluminum Products, 278 NLRB 338, 339 (1986). See NLRB
v. Davis, 642 F.2d 350, 354 (9th Cir. 1981), where the court stated that
Gissel instructed the Board to consider the extensiveness of the unfair
labor practices, their past effect on election conditions the likelihood of
their recurrence, and the probability that a fair election can be held. See
also NLRB v. Appletree Chevrolet, 608 F.2d 988 , 997 (4th Cir. 1979),
where the court stated that since an election is the preferred method for
determining a bargaining agent , to justify the issuance of a bargaining
order the Board must "go beyond a finding of such unfair labor practices
and ... make 'a detailed analysis assessing the possibility of holding a
fair election in terms of any continuing effect of misconduct , and the po-
tential effectiveness of ordinary remedies."'
unfair labor practices. l3 Indeed, the natural and
likely result of the threats found here was to rein-
force the employees' fear that they would lose em-
ployment if they persisted in their union activity.
This fear was exacerbated by the fact that these
violations were committed by Koons, the Respond-
ent's top official, and two department managers of
the unit employees. The positions these persons
held clearly served to strengthen and amplify in
the minds of the employees, the seriousness of the
threats conveyed.14
The Respondent's carefully calculated and timed
wage increase for 15 make-ready, parts, and used
car department employees on 6 January 1983 was
an equally serious violation. The same can be said
of the 6 January 1983 wage increase to the nine
body shop employees resulting from the concomi-
tant redress of their grievances to change the com-
pensation formula. The body shop employees' com-
pensation change was enacted after the Respondent
offered employees a choice between the existing
formula, over which the employees had constantly
expressed their displeasure, and the old formula,
which the employees manifestly preferred. This
was clearly a "deliberately embarked upon .. .
course of action designed to convince the employ-
ees that their demands [would] be met through
direct dealing with Respondent and that union rep-
resentation could in no way be advantageous to
them. Obviously such conduct must, of necessity,
have a strong coercive effect on the employees'
freedom of choice, serving as it does to eliminate,
by unlawful means and tactics, the very reason for
a union's existence." 15 Wage increases in particular
have a potential long-lasting effect, since the
Board's traditional remedies do not require the Re-
spondent to withdraw the benefits, from the em-
ployees.16
Finally, the numerous and extensive threats of
loss of benefits and more onerous work conditions,
repeatedly and persistently engaged in by the Re-
spondent's officials, suggest a careful orchestration
and general campaign to destroy employee support
for the Union.
The success of the Respondent's unlawful cam-
paign is illustrated by the clear dissipation of union
support during the period of the Respondent's most
egregious violations. By 16 December the Union
had obtained at least 38 valid authorization cards
13 See, e.g., Gissel, supra at 611 fn. 31 ; Pggly Wiggly v. NLRB, 705
F.2d 1537 , 1542 (11th Cir. 1983); Thriftway Supermarket, 276 NLRB 1450
(1985).
14 See Kona 60 Minute Photo, 277 NLRB 867 (1985); Ohio New & Re-
built Parts, 267 NLRB 420 (1983).
15 Teledyne Dental Products Corp., 210 NLRB 435 (1974).
16 Red Barn System, 224 NLRB 1586 (1976), enfd . 574 F.2d 315 (6th
Cir. 1976).
KOONS FORD OF ANNAPOLIS 509
out of a total of 66 unit employees.17 Less, than 1
month later, the Union received only 27 votes in
the election. It was within this 3- to 4-week period
that John Koons Jr. and other officials of the Re-
spondent made threats of plant closure and job loss
and within I week of the election granted wage in-
creases and redressed employee grievances. The
Respondent's officials also throughout this period
repeatedly hammered home the theme that union-
ization would result in loss of benefits and more
onerous working conditions for employees.
We find that the inhibitive effects of these unfair
labor practices are likely to persist despite a sub-
stantial level of turnover and concomitant passage
of time.18 We note the judge's finding that a sub-
stantial portion of the turnover occurred among
the Respondent's younger less skilled employees,
while many of the older more skilled employees,
who were the direct targets of many of the threats,
are still employed. Even assuming the accuracy of
the facts as set forth in the Respondent's 1 October
1986 motion to reopen the record, the 21 remaining
unit employees include: 3 of the 13 mechanics
whose department members were subject to the
threats of plant closure and discharge; 4 of the 9
body shop employees whose compensation was
changed resulting in an unlawful wage increase and
redress of grievances; and 7 of the 15,parts, make-
ready, and used car department employees who re-
ceived wage increases the week of the election. In
17 The Respondent excepts to the judge's findings that 11 particular
authorization cards are valid. Mechanics with helpers were involved in
the signing or solicitation of nine of those cards, and the Respondent con-
tends that those mechamcs are supervisors under the Act . Of those nine
cards, the card of employee McMullen is also alleged by the Respondent
to be invalid under NLRB v. Savair Mfg. Co., 414 U.S. 270, 277 (1973).
The remaining 2 cards of the 11 that the Respondent challenges as in-
valid are those of Lawrence and Epling. The General Counsel excepts to
the judge's finding as invalid one card signed , by employee Snodgrass.
]Based on his findings, the judge concluded the Union demonstrated ma-
jority support as of 24 November 1982 (32 out of 62 unit employees) and
16 December 1982 (40 out of 66 unit employees).
We adopt the judge 's finding that the mechanics with helpers were not
supervisors under the Act . See Soil Engineering Co., 269 NLRB 55
(1984). Having made this determination , it is clear that by at least 16 De-
cember 1982 a majority of the employees had designated the Union as
their representative. Accordingly, we find it unnecessary to pass on the
validity of the cards signed by employees Lawrence , McMullen, Snod-
grass, and Epling.
Chairman Dotson, who dissented in Soil Engineering Co. on the basis
that the employees with helpers clearly had the independent authority to
discharge a helper , would agree with the judge's finding that here the
mechanics with helpers exhibited no such authority . Accordingly, he also
adopts the judge's finding that the mechanics with helpers were not su-
pervisors under the Act.
18 The Respondent filed three motions to reopen the record to present
supplemental evidence indicating the change in ownership from John
Koons Jr. to Joseph Koons on 1 July 11984 as well as evidence of employ-
ee and management turnover subsequent to the hearing . In its latest
motion, the Respondent presented evidence that as of 1 October 1986,
only 21 of the original 66 unit employees remained and the proposed unit
has expanded to 92 employees . We deny the motions to reopen on the
basis that, as shown above , the evidence sought to be adduced would not
require a different ' result. See Sec. 102.48(d)(1) of the Boards Rules and
Regulations.
'light-of the"O.1itensive and repetitive nature of the
violations, in particular the threats engaged in at
general department meetings, we do not assume
that other employees were unaffected. The contin-
ued presence of these employees creates a potential
that the inhibitive effect of the unfair labor prac-
tices remain, preventing the possibility of a fair
election.19
Substantially parallel circumstances were present
in NLRB v. Air Products & Chemicals, 717 F.2d 141
(4th Cir. 1983), in which the Fourth Circuit en-
forced a bargaining order issued by the Board.20
There, the employer engaged in similar unlawful
activity, namely, threats to force a strike by not
agreeing to union demands, of loss of benefits, and
of-the futility of selecting the union,, as well as so-
licitation of employees to dissuade other employees
from. supporting the union. Additionally, three sep-
arate employer officials threatened employees ' with
plant closure and there was one threat of dis-
charge. As in the instant case, there were no 8(a)(3)
unlawful discharges . 21 In issuing the bargaining
order the Fourth Circuit relied on other factors
specified by the Board that are also present in this
case, namely, the substantial percentage of employ-
ees affected, the serious nature of the threats, the
extended period over which the violations oc-
curred, and the large number of managers guilty of
violations . Id. at 147. The, court 'concluded that
these factors "clearly satisfie[d] the specificity re-
quirement" the Board must meet to justify the issu-
ance of a Gissel bargaining order. Id. at 146.
We believe that, under the circumstances of the
instant case, simply requiring the Respondent to re-
frain from unlawful conduct will not eradicate the
lingering effects of the hallmark violations, and will
not deter their recurrence. We further conclude
that the employees' representation desires, once ex-
pressed through authorization cards would, on bal-
ance, be better protected by our issuance of a bar-
gaining order than by traditional remedies.
Accordingly, we adopt the judge's recommenda-
tion that the Respondent be required to bargain
with the Union as the duly designated representa-
tive of a majority of its employees in the unit found
appropriate for purposes of collective bargaining,
effective 16 December 1982, the date by which the
Union acquired authorization cards from a majority
12 See Quality Aluminum, supra.
20 263 NLRB 341 (1982).
21 We note the facts here are even stronger for issuing a bargaining
order in that, unlike NLRB v Air Products, there was also an unlawful
grant of benefits.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employees in the unit after the Respondent had
commenced its unlawful course of conduct.22
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Koons Ford of Annapolis, Inc., Annap-
olis, Maryland, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
"(a) Threatening its employees with plant clo-
sure, loss of jobs, job security, or opportunity for
advancement, loss of privileges or benefits of em-
ployment, more onerous working conditions, futile
contract negotiations, or other reprisals if they des-
ignate, select, or support District 65, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America or any other labor organiza-
tion as their bargaining representative."
2. Substitute the following for paragraph 1(g).
"(g) ' In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
3. Substitute the attached - notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election in
Case 5-RC-11899 is set aside and that the petition
is dismissed.
22 See fn. 17 supra. We need not decide whether the Union had a ma-
jority at an earlier date since all of the Respondent's unfair labor prac-
tices committed prior to 16 December 1982 are otherwise specifically
remedied.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten you with plant closure,
loss of jobs, job security, or opportunity for ad-
vancement, loss of privileges or benefits of employ-
ment, more onerous working conditions, futile con-
tract negotiations, or other reprisals if you desig-
nate, select, or support District 65, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America or any other labor organiza-
tion as your bargaining representative.
WE WILL NOT coercively question you about
your union attitude or activities or those of your
fellow employees.
WE WILL NOT solicit you to engage in antiunion
activity.
WE WILL NOT grant wage increases or other im-
provements in terms and conditions of employ-
ment, or remedy grievances, in order to discourage
support for District 65; provided, however, that
nothing herein requires us to vary or abandon any
economic benefit or any term or condition of em-
ployment that we have heretofore established.
WE WILL NOT refuse to recognize or bargain
collectively with District 65 as the exclusive bar-
gaining representative of our employees in the fol-
lowing appropriate unit:
All full time and regular part time Service De-
partment employees, including mechanics,
body and paint shop workers, parts depart-
ment employees, drivers, helpers, make ready
employees, porters, dispatchers, and janitors
employed at our Annapolis, Maryland, facility,
but excluding sales persons, office clerical em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT unilaterally change wages or
other terms or conditions of employment without
prior notice to District 65 or without affording
District 65 an opportunity to negotiate and bargain
concerning such matters.
WE WILL NOT in any other manner interfere
with, restrain; or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain col-
lectively in good faith with District 65 as the ex-
clusive bargaining representative of our employees
in the unit described above, and embody in a
signed agreement any understanding reached.
KOONS FORD OF ANNAPOLIS, INC.
Joseph J. Baniszewski Esq. and Edward Noonan, Esq., for
the General Counsel.
Robert E. Campbell, Esq. and Susan S. Grover, Esq.,
(Donovan, Leisore, Newton & Irvine), of Washington,
D.C., for the Respondent-Employer.
Larry Steele, of Martinsburg, West Virginia, for the
Charging Party-Petitioner.
DECISION
STATEMENT OF THE CASE
MARVIN RoTH, Administrative Law Judge. These
consolidated cases were heard at Baltimore, Maryland,
on June 6 through 9 and 20 through 24 and on October
17 and 18, 1983. The charge was filed by District 65,
United Automobile, Aerospace and Agricultural Imple-
KOONS FORD OF ANNAPOLIS
ment Workers of America (Union) January 17^-1983.
The complaint, which issued on March 14 and was
amended at the hearing, alleges that ,Koons Ford of An-
napolis, Inc. (Respondent or the Company), violated Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act. The Company's answer denies the commission of
the alleged unfair labor practices.
Pursuant to a Stipulation for Certification upon Con-
sent Election approved by the Regional Director on De-
cember 16, an election was conducted on January 12,
among the employees in the following appropriate unit:
All full time and regular part time Service Depart-
ment employees, including mechanics, body and
paint shop workers, parts department employees,
drivers, helpers, make ready employees, porters, dis-
patchers and janitors employed at [the Company's]
Annapolis, Maryland, facility but excluding sales
persons, office clerical employees, guards and super-
visors asdefned in the Act.
The tally of ballots showed that of approximately 66
eligible voters, 27 voted for the Union and 39 voted
against the Union. There were no challenged ballots.
The Union filed timely objections to the conduct of the
election, numbered I through 15, but subsequently with-
drew Objections,5, 7, 8, and 14. On March 25 the Re-
gional Director issued his Report on Objections, ,fording
that the objections covered the same subject matter as
the unfair labor practice complaint. The Regional Direc-
tor ordered that the unfair labor practice and the repre-
sentation cases be consolidated for the purpose of hear-
ing, ruling, and decision by an administrative law judge,
and that thereafter, the representation case be transferred
to and continued before the Board.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. On the entire record in this case,2 and from
my observation of the demeanor of the witnesses, and
having considered the briefs submitted by the General
Counsel and the Company, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a Maryland corporation with an office
and place of business in Annapolis, Maryland, is engaged
in the retail sale and service of automobiles. In the oper-
ation of its business, the Company annually derives gross
revenues in excess of $500,000, and annually purchases
goods and materials valued in excess of $5,000 directly
from points outside the State of Maryland. I ford, as the
Company admits, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
1 All date, herein are for the period from July 1, 1982, 'through June
30, 1983, unless otherwise indicated.
8 The official transcript of proceedings is corrected in accordance with
my order to show cause dated March 15, 1984.
511
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ISSUE
The principal issues in these cases are:
1. Whether the Company engaged in interrogation,
threats of plant closure, discharge, layoff, loss of job se-
curity and opportunity for promotion, deprivation of
benefits and privileges, more onerous working condi-
tions, futility of selecting the, Union, as bargaining, repre-
sentative-and other reprisals, solicitation of employees to
inform management about union activities and to talk
against the Union to other employees, all in order to dis-
courage support for the Union, and thereby violated Sec-
tion 8(a)(1) of the Act.
2. Whether the Company granted pay increases, bo-
nuses, and other changes in employee compensation in
order to discourage employee support for the Union, and
thereby violated Section 8(a)(1) and (3) of the Act.
3. Whether the election of January 12 should be set
aside.
4. Whether by the above alleged unfair labor practices
the Company precluded the holding of a fair election,
and therefore violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union as
representative of the employees in the appropriate unit
and unilaterally changing terms and conditions of em-
ployment. Subsidiary to this issue are the questions of
whether an uncoerced majority of the Company's unit
employees designated the Union as their bargaining rep-
resentative, and whether mechanics with helpers are su-
pervisors within the meaning of the Act, as alleged by
the Company. (The status of these mechanics is also sub-
sidiary to alleged violations of Section 8(a)(l) involving
those individuals'.)
IV. BACKGROUND AND PRELIMINARY ISSUE: THE
COMPANY'S OPERATIONS AT ANNAPOLIS, AND THE
STATUS OF MECHANICS WITH HELPERS
In order to place at least some of the present allega-
tions in proper perspective, it is necessary to consider the
history and organizational structure of the Company's
operations. The Company is one of four automobile deal-
erships that are owned and actively controlled by John
W. Koons-Jr. The other three, all in Northern Virginia,
are JKJ Chevrolet, Koons Chrysler-Plymouth, and JKJ
Chrysler-Plymouth. Koons also has a dealership in Flori-
da, but he is not actively involved in its day-to-day oper-
ations. Koons is president of each of the dealerships.
Since June 1981, Ronald Hendrick has served, as the
Company's general manager in charge of the Annapolis
dealership. Ned Tomarchio became service department
manager in late March 1982, succeeding Bob Rose. To-
marchio abruptly terminated his employment with the
Company on December 20, 1982, under circumstances
that will be discussed. James Collins, who previously
served as a dispatcher and assistant to Tomarchio,
became acting service manager and subsequently (in late
January) was designated as service manager. However,
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in April, Collins was replaced in that capacity by Dave
Sparrow. Collins remained in a subordinate capacity to
Sparrow as administrative service manager . The service
department , which is the most important department in-
sofar as the present case is concerned, includes line me-
chanics (also known as technicians), service writers, the
dispatcher, porters and mechanics' helpers. The body
shop manager also reports to the service manager. At all
times material , Betty Dorr was body shop manager. In
December 1982 the department had six body, or metal,
employees and three painters . Linwood Hall was body
shop foreman (subordinate to Dorr) until some time in
December. In early January, body employee Thalsberg
(Crip) Brown was promoted to foreman.3 The sales de-
partment, headed by John Taber, includes new- and
used-car sales and the finance office. In December and
January, Mario Debini was in charge of new-car sales.
Irv Sherbert, who is and was at all times material new-
car make-ready manager, normally reported to Debini,
except that on technical matters he would report to the
service manager. Make-ready included one mechanic and
about five employees whose principal jobs were to clean,
undercoat, and otherwise prepare new cars for delivery
and to do general maintenance work on the premises.
Edward Christmas was used-car manager. In December
and January the used-car department included three me-
chanics and one make-ready employee, in addition to
nonunit salesmen. The finance office, headed by Comp-
troller Bob Schmick, included about six clerical employ-
ees. The' parts department, headed by Richard Garvin,
included counter (sales), employees, clerks, and drivers.
There is also a general office. The Company also has a
Porsche-Audi dealership, headed by Hendrick, parallel to
but smaller than the Ford dealership, with its own sales,
parts, and service departments. (The unit includes both
the Ford and Porsche-Audi dealerships.)
In December and January, there were approximately
13 line mechanics in the Ford service department and 3
in the Porsche-Audi service department. The line me-
chanics, who are skilled workers, were normally paid on
a flat-rate hour basis. The mechanics were paid an
hourly rate of up to $12.25 per hour, depending on their
qualifications, i.e., number of certifications in specialized
areas. However, they were not paid by the clock. Rather
their pay depended on the time allowed for each job by
the Chilton Manual, or the Ford Manual for warranty
work. Thus a proficient mechanic could "beat the
system," and thereby enhance his earnings , by regularly
performing satisfactory work in less than the manual
time (flat rate). Some mechanics found that they could
also enhance their earning capacity by having a helper,
i.e., an unskilled individual who was in the process, of
learning automotive mechanics work. Two mechanics
(James Felesky and John Leary) each had one helper
(Pat Evans and Daniel Pearsall, respectively). Mechanic
Karl -Jones had two helpers (Ed Buckalew and John
a'Brown testified that he was promoted as of January 1 . General Man-
ager Hendrick testified that he promoted Brown 1 or 2 days after he de-
livered a speech to the service department employees . However, the
Company's records indicate that Brown was promoted to "body shop es-
timator" on January 5, the day Hendrick delivered the speech. I find that
Brown was promoted prior to the speech
Howes). Use of a helper was initiated at the request or
direction of the general manager or the service manager.
The evidence fails to indicate that any mechanic sought
to obtain a helper . (When Service Manager Tomarchio
told Jones that he should take a second helper, Jones
suggested Howes, then a porter, because helper Bucka-
lew had recommended him. However , Jones was not fa-
miliar with Howes' qualifications, and did not even want
a second helper.) Indeed, it was Tomarchio 's idea that
selected mechanics should have helpers. The Company
was primarily interested in using its mechanics to train
other employees. As far as the mechanics were con-
cerned, helpers were useful only if and when the helper
progressed sufficiently in his work to generate income
(for the mechanic) that exceeded the helper's hourly
wage. As will be discussed, these two interests did not
always coincide.
The helpers were paid an hourly wage, either the min-
imum wage or slightly more Usually, but not always,
their wages were deducted from the mechanic 's earnings.
However, the Company processed the helpers paychecks
(as it did for mechanics and all other personnel ), and also
paid the helpers' fringe benefits (holiday and vacation
pay and employer insurance contributions). When help-
ers were temporarily transferred to other work (always
at the Company's direction), e.g., to make-ready, the
Company paid their wages. In the case of Daniel Pier-
sall, both Manager Hendrick and Leary recognized that
he had personal problems that were interfering with, his
work, and therefore that he would be of questionable
benefit to Leary.4 Eventually Leary informed Hendrick
that Piersall was simply a "goof-off." On the basis of
Leary's opinion, Hendrick terminated Piersall. '
The mechanics have little authority over their helpers,
beyond training them and directing them in their work
of helping the mechanics. The mechanics had no author-
ity to hire, transfer, lay off, or terminate their helpers, or
even to alter their wages, although the mechanics usually
absorbed the cost of those wages. If a mechanic felt that
he did not have enough work to justify a helper, or that
the helper was not working out well, he could so inform
the general manager or the service manager, who would
then decide what action to take, e.g., suggest that the
mechanic give the helper a further try (as Tomarchio ini-
tially did with a previous Jones' helper), transfer the
helper to other work (as with helper Evans), or termi-
nate the helper (as with Piersall and eventually with
Jones' former helper, Kevin McMaster). If the mechanic
has an attitude or other similar problems with the helper,
he would not attempt to discipline the helper. Instead (as
did Leary with Piersall), he would report the problem to
the service manager, who would take such action as he
deemed appropriate. The mechanics did not even have
authority to alter their helper's working hours, e.g., by
letting the helper leave early.5 If the mechanic felt that
4 Hendrick initially testified that Leary paid Piersall's wages. Howev-
er, after examining pertinent company records, Hendrick admitted that
this was not true.
5 General Manager Hendrick testified that the mechanics had such au-
thority. However, his testimony is inconsistent with the testimony of
Continued
KOONS FORD OF ANNAPOLIS 513
his helper was working out well , and deserved a raise, he
could so inform the general manager or service manager
(as Jones did with Buckalew ). As the increase would be
coming from the mechanic 's pay, the Company had little
reason to reject such requests . Thus Manager Hendrick
testified that it basically made no difference to the Com-
pany whether the mechanic was willing to give the
helper an increase.
The Company did not, until the third day of this hear-
ing, contend that mechanics with helpers were supervi-
sors under the Act. Indeed, the Company stipulated that
Felesky, Leary, and Jones were eligible to vote in the
election, and did not challenge their ballots . At the hear-
ing, I ruled that the Company could litigate their alleged
supervisory status in this proceeding . However I also
stated, and I now so find , that the Company 's prior stip-
ulation may properly be considered as an admission
against interest . According to company counsel, the
Company reconsidered its prior position after hearing
testimony by former line mechanic Thomas Dixon that
he considered John Leary to be a supervisor because he
"had people working under him." (In fact , Leary had
only one helper.) However, the Company, and specifical-
ly Manager Hendrick, who was intimately involved in all
aspects of the Company 's operations , did not learn any-
thing about the status of the line mechanics as a result of
this hearing that he did not already know . If the mechan-
ics with helpers enjoyed supervisory authority , then it is
obvious that Hendrick would have been aware of that
fact at the time of the representation hearing . Moreover,
the evidence adduced with regard to the Company's
overall operations in general and line mechanics in par-
ticular , indicates that within the Company 's operating
structure , line mechanics enjoyed the same status regard-
less of whether they had helpers. All mechanics punched
a timeclock , received an hourly wage based on their in-
dividual qualifications as mechanics , and were paid on
the flat-rate system (i.e., on the basis of their output of
mechanical work).
In contrast the Company 's managers (admittedly su-
pervisors) were paid on a salary plus commission or in-
centive basis, and did not punch a timeclock . The me-
chanics had no authority over any employees other than
their own helpers . Each manager had or shared an
office . In contrast each mechanic had only his own work
stall. All mechanics were required to wear blue work
uniforms ; the managers wore street clothes or executive-
type uniforms, except for James Collins, who by his own
choice wore the work uniform. The line mechanics, re-
gardless of whether they had helpers, spent nearly all of
their time performing mechanical work . In contrast the
managers except for Irv Sherbert, performed little or no
unit work, and even Sherbert spent much of his time di-
recting the work of the make -ready crew. The managers
former Service Manager Tomarchio, made in a different context, that
even the mechanics had to request permission to leave early If the me-
chanics could not leave early without permission from the manager, then
it is unlikely that they could independently grant such leave to their help-
ers Moreover, helpers might be needed for temporary transfer to other
work . Therefore I credit the testimony of helper Buckalew that if he
wanted to leave early he would ask mechanic Jones, who would then
check with the service manager
attended periodic managerial meetings , including meet-
ings concerning the Union's organizational campaign.
The mechanics, including those with helpers, were not
invited and did not attend such meetings. However, all
mechanics were required to attend service department
meetings, together with other department employees. All
line mechanics were subject to the provisions of the
Company's "Technicians Job Description," which pur-
ported to reflect company policy, and which indicated
close supervisory control over the line mechanics. For
example, mechanics could obtain work only from the dis-
patcher , they could be disciplined for excessive "come-
backs," they had to punch a timeclock and obtain per-
mission to arrive late or leave early , and they were re-
quired to attend service department meetings and to park
in a lot assigned for their use.
The mechanics job description contained 27 provi-
sions, only one of which made any distinction between
mechanics with helpers and those without , namely rule
13, which provided that "technicians with apprentices or
helpers are responsible for repairs done by their helpers."
These provisions are inconsistent with the discretion usu-
ally accorded to personnel with supervisory status. As
part of its defense on the merits of this case , the Compa-
ny presented testimony and other evidence to show that
the Company has a semiannual review policy , at least for
"non-productive personnel," i.e., those paid on the basis
of a fixed salary or hourly wage, in the service depart-
ment . Although this would include mechanics' helpers,
no evidence was presented that the mechanics with help-
ers were ever involved in this process. It is evident that
the limited authority given to the mechanics with helpers
was intended to facilitate the work of the mechanics and
more importantly , as part of the process of training em-
ployees who themselves were potential mechanics, to the
point where they could work on their own. As former
service manager Tomarchio put it so aptly in his testimo-
ny, "You don't need one supervisor for every person
working ." Tomarchio 's explanation is a virtual admission
that the mechanics cannot be regarded a supervisors.
The recent Board decision in Soil Engineering Co., 269
NLRB 55, 56 (1984), is dispositive of the Company's
contention. That case involved the question of whether
drillers with helpers were supervisors under the Act.
The Board found that the employer followed a policy of
taking disciplinary action against helpers , including dis-
charge, based on the recommendations of the drillers.
Nevertheless , the Board , reversing the determination of
the Administrative Law Judge, found that the drillers
were not supervisors. The Board held that "the authority
that the drillers exercised in directing their helpers' work
is no different, in our view, from that any skilled work-
ers has over helpers and apprentices. In so holding, we
note that, were we to find the drillers to be supervisors,
the result would be a highly disproportionate ratio of
one supervisor for each employee. Such a ratio is unreal-
istic , and incompatible with a finding that the drillers are
supervisors."e The Board also cited as authority Southern
Chairman Dotson dissented on the basis of evidence that the drillers
had authority not simply to recommend discharge , but to discharge a
Continued
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bleachery, 115 NLRB 787, 791 (1956), enfd . 257 F.2d 235
(4th Cir. 1958), cert. denied 359 U .S. 911, in which the
Board found that machine printers with helpers were not
supervisors, holding that:
We have no doubt that almost any employer, when
told by a skilled craftsman that his helper is incom-
petent and that he needs a new helper if he is prop-
erly to perform his functions , would accept the
judgement of the craftsman . While this may be
called effective recommendation, it is inherent in
the craftsman-helper relationship.
See also Gulf Bottlers, 127 NLRB 850, 858-861 fn. 3,
(1960), enfd . sub nom . Brewery Workers v. NLRB, 298
F.2d 297 (D.C. Cir . 1961), cert. denied 369 U.S. 843
(1962).' Therefore, I find that the mechanics with help-
ers were employees under the Act.
V. THE UNION ORGANIZATIONAL CAMPAIGN AND
THE UNION'S ALLEGED MAJORITY STATUS
In September 1982 mechanics Joseph Smith and Ricky
Kubert contacted the Union . Subsequently union orga-
nizer Larry Steele arranged a meeting at Smith's home
on November 4. Steele, seven line mechanics (Smith,
Kubert, John Chambers, Jim Felesky , Hugh Minter, Jack
Ward, and Donald West), and Smith's 18-year-old
daughter Lisa (not an employee) were present . Steele
spoke to the employees . He explained that if the Union
obtained signed cards from a majority of employees, they
would ask the Company to recognize the Union, and if
the Company did not, there would have to be an elec-
tion. Steel also explained the negotiation process. He dis-
tributed "single purpose" authorization cards that stated
above the signature line "I hereby accept membership in
District 65, and of my own free will hereby authorize
District 65, its agents or representatives to act for me as
a collective-bargaining agency in all matters pertaining
to rates of pay, wages, hours , or other conditions of em-
ployment." Steele explained that an employee became a
union member by signing a card . Steele did not discuss
initiation fees and dues at this meeting.
Ordinarily , I would defer discussion of the question of
majority status until after discussion of the alleged unfair
labor practices . However, in the present case the Compa-
ny has questioned the validity of most of the Union's au-
thorization cards, and the questions presented cut across
h e l p e r "on t h e spot ... if the driller felt that the helper was not worth
his time ." In the present case, the mechanics had no independent author-
ity to terminate their helpers.
T Georgia Pacific Corp., 225 NLRB 866 (1976), principally relied on by
the Company , is distinguishable on its facts. That case involved the status
of lumber jobbers who utilized their own equipment in hauling lumber
pursuant to contract with the employer, and used and paid from one to
eight drivers to perform this work . The evidence indicated that the job-
bers "hire , fire, discipline, assign, transfer and otherwise responsibly
direct the drivers of their equipment." The Board found that the jobbbers
were not independent contractors, but were supervisors of the employer.
The facts in Georgia Pacific are plainly not comparable to those of the
present case and the cases cited above . Land O 'Lakes, Inc., 204 NLRB
519, 522 (1973), also relied on by the Company , involved a fact situation
similar to that in Georgia Pacific, in which the Board held that multiple-
owner drivers who "hire and fire the nonowner drivers who operate
their equipment," were supervisors under the Act.
the span of union activity . Additionally, the fact and
timing of union activity, both generally and as to particu-
lar individuals, is at least arguably relevant to resolution
of some of the unfair labor practice allegations . There-
fore, I shall take up the question of majority status at this
point in the decision.
During the period from November 1 through January
10, there were 55 employees who were continuously em-
ployed in the appropriate unit . The total size of the unit
ranged from 59 on November 1 to a peak of 67 on De-
cember 7 and 8. Thereafter the unit remained at a level
of 66 through December 10. During this period (Novem-
ber 1 through January 10) 12 employees were hired, 4
were terminated and another (Walker Liveramento) was
hired on November 18 and terminated on December 9.
The General Counsel contends that 41 unit employees
signed valid authorization cards , during the period.
Among the card signers, 35 were employed continuously
during the period and 5 were hired on or before Decem-
ber 9 and remainded employed throughout the period.
The remaining signer was Livramento . The complaint al-
leges that the Union attained majority status as of De-
cember 10. However, the General Counsel in its brief as-
serts that the Union actually attained majority status on
November 17 and maintained that status throughout the
period.
Testimony was presented that six of the seven employ-
ees present signed authorization cards at the close of the
November 4 meeting .8 Smith, Kubert, Felesky, and West
each testified that they read , filled out, and signed their
respective cards. Smith testified that he saw Minter fill
out and sign his card and give it to Steele . Smith,
Kubert, and West testified in sum that Chambers took a
card, but asked Lisa Smith to fill it out because he did
not have his glasses. She did so, whereupon Chambers
signed the card and gave it to organizer Steele. I find
that all six cards were valid . It is settled law that where
an issue is raised as to the authenticity of signatures on
cards, they may be authenticated by persons other than
the card signer, including persons who witnessed the
signing or who received the cards from the signatories.
McEwen Mfg. Co., 172 NLRB 990, 992 '(1968), enfd. sub
nom. Amalmagated Clothing Workers v. NLRB., 419 F.2d
1207, 1209-1210 (D.C. Cir. 1969), cert. denied 397 U.S.
988 (1970). Chambers' card was plainly valid . Even if he
were not able to read the card without his glasses, he
nevertheless signed the card after organizer Steele truth-
fully explained its purpose, and he furnished the informa-
tion for Smith's daughter to enter on the card . (There is
no dispute that the information on the card, e.g., Cham-
bers' address, telephone and social -security numbers, 'and
wage rate, were correct.)
Three more employees signed cards on November 8.
Thomas Dixon and Carroll (Fred) Pierson authenticated
their respective cards . Pierson subsequently became a
principal . union adherent . Ricky Kubert testified that he
asked mechanic Ronald Kawecki to sign a card. Kubert
explained that they were trying to get in a union and
that Kawecki would become a member by signing the
8 Ward, the seventh employee, was terminated on November 30.
KOONS FORD OF ANNAPOLIS
card . Kawecki said that he wanted to join . He filled out
and signed the card and returned it to Kubert . It is im-
material that Lisa Smith entered the Company's name
and address and service department on the cards , or that
some other person entered other job information on
Dixon 's card . It is evident that the employees signed the
cards in connection with their employment with the
Company . Therefore even if such information was en-
tered after the employee signed the card it would not
alter the meaning or significance of the card . 9 Compare,
Dollar Rent-A-Car, 236 NLRB 206, 210 ( 1978), in which
the Board held as valid a card that was signed in blank.
Therefore, I fmd that the cards were valid. t 0
On November 9 additional cards were solicited in the
shop, and there was another meeting at Smith 's home.
Karl Jones testified that he signed his card at the meeting
after organizer Steele asked him to join the Union.
Having found Jones to be a employee , I find that his
card is valid. Mechanic Robert Russell testified that he
also signed his card at the meeting . Russell testified that
he signed , dated , and filled in all of the card except for
the Company 's name and address . Russell testified that
he thought his wife entered that information , although
the handwritting appears to be that of Lisa Smith. For
the reasons discussed in connection with similar cards, I
fmd that Russell 's card was valid . Joseph Smith testified
that on November 9 he obtained signed cards in the shop
from painter Bret Anderson and mechanic Darryl Horan.
Smith testified in sum that each employee signed , dated,
and completed the card, except for portions that were
completed by Lisa Smith (company name and address
and department) and returned the card to him. Smith
also testified that Horan told him that he was interested
in joining the Union . Horan's card was dated " 10/9/82."
However there was no card solicitation prior to Novem-
ber 4. It is evident that Horan incorrectly dated the card.
I credit Smith , and I fmd that the cards were valid.
Body shop employees Thalsberg Brown and Sedgewick
Cole each testified concerning their respective cards.
Brown testified that Joseph Smith gave him a card in the
shop, that he signed , dated and completed the card
(except for the company name and address and depart-
Pierson testified that the Company's name and address and his job
tide were written on his card when he signed it. In view of the consistent
pattern of cards in which the Company's name and address and service
department were entered by Lisa Smith , I find that such information was
entered by her on blank cards at the November 4 meeting It is unlikely
that employees would have consistently failed to fill in such information
Therefore , by signing the cards the employees ratified such information,
just at they ratified the printed text of the card.
10 The Company asserts (Br 223-225) that the Board will not deter-
mine majority status based on cards containing "irregularities," e.g., in-
formation subsequently added , erasures , or printed names, absent personal
authentication by the signator The assertion is incorrect. See Amalgamat-
ed Clothing Workers (McEwen Mfg) v NLRB, supra, 419 F.2d at 1209 fn
1, Daybreak Lodge Nursing Home, 230 NLRB 800, 804 (1977), enfd. 585
F 2d 79 (3d Cir 1978) The Company 's argument might be persuasive in
a situation involving a serious discrepancy that could only be adequately
explained by the signer Thus in the present case , with regard to the card
of Roy Eping (which will be discussed ), evidence indicated that Eping
was not employed by the Company when he signed the card In these
circumstances I ruled that the General Counsel would probably have to
produce Epling in order to explain the circumstances under which he
signed the card However, the cards signed on November 8, and other
cards containing similar entries, do not present a comparable problem
515
ment, which were evidently completed by Lisa Smith),
and that he returned the card to Smith. Brown was sub-
sequently promoted to foreman, but he nevertheless
voted in the election. I find that Brown's card may prop-
erly be considered as evidence of the Union's status until
January, when he was promoted to a supervisory posi-
tion. Cole testified that he also obtained a card from
Smith in the shop , signed, dated , and completed the card
except for the portion completed by Lisa Smith, and re-
turned the card to Smith. Cole testified that Smith told
him that he would become a member if he signed, that
the purpose of the card was to "get a union going," and
that "if we get a majority vote may be we could [get] a
union in the shop." However, Smith did not say that
there would be an election. I find that his card was valid.
See NLRB v. WKRG-TV,, Inc., 470 F.2d 1302, 1317-1318
(5th Cir. 1973); Peerless of America v. NLRB, 484 F.2d
1108, 1117-1118 (7th Cir. 1973).
Ricky Kubert testified that he obtained signed cards
from body shop employees Kenneth Boston and Henry
Brown and mechanic John Grubb, all dated November
9. Kubert told the employees that they would become
union members by signing the card, and that he did so in
accordance with organizer Steel 's explanation . In each
instance the employee signed, dated, and completed the
card (except for the portion filled in by Lisa Smith) and
returned the card to Kubert. I find the cards were valid.
Smith and Kubert obtained additional signed cards at
work on November 10, 11, and 12. Smith testified that
he gave cards to dispatcher Joseph Wellman and (then)
porter Daniel Piersall , asked each employee if he was in-
terested in joining the Union and was willing to sign a
card, and told each to read the card. Smith further testi-
fied that each employee filled out, dated, and signed the
card and returned the card to him. The cards are dated
November 10 and 11, respectively. I find they are valid.
Kubert testified that he gave a card to body shop em-
ployee Archie Brown, that they had previously discussed
the Union, that Brown indicated that he wanted to sign a
card , and that Brown signed and completed the card
(except for the portion filled out by Lisa Smith) and re-
turned it to him. Brown's card dated November 10 is
valid.
Mechanic's helpers John Howes and Edward Bucka-
lew each authenticated their own cards. Both are dated
November 10. Howes testified that he got the card from
Smith; that he read , completed, dated , and signed the
card; and that he returned it to Smith. Buckalew testified
that he got his card from Kubert; read, completed, dated,
and signed the card; and returned it to Smith. Buckalew
testified that Kubert told him that the purpose of the
card "was to organize a union, get a election, and have
the UAW represent us." However, Kubert did not tell
Buckalew that the cards would be used only to obtain an
election, or that the Union would seek representative
status only through an election. I find that the cards of
Howes and Buckalew are valid. Parts counterman John
Lawrence authenticated his own card, dated November
12. Lawrence testified that Smith gave him the card as
they were leaving for lunch; that he took the card and
read, filled out, and signed it; and that he returned the
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card to Smith about 30 minutes later. Lawrence testified
that Smith asked him if he was interested in getting the
Union into the shop and if so, that he should fill, out the
card. Lawrence answered that he was interested, and
that he previously belonged to a Union. Lawrence fur-
ther testified that Smith also said that "they were trying
to find out how many people were interested and to fill
out the cards would give them an idea if they had
enough people in order for the Union to come in to have
a vote at a later date," and that if there were enough
people interested in it, that later on their would be an
election to find out if the Union gets in or not." Howev-
er Smith did not tell Lawrence that the cards would be
used only to obtain an election. Indeed, he specifically
told Lawrence to sign the card if he was interested in
having the Union in the shop (not if he was simply inter-
ested in having an election). As matters turned out,
Smith's prediction of an election was correct. The card is
valid. WKRG-TV, supra; Peerless of America, supra.
Parts counterman Carlos Cully testified that he ob-
tained his card from Sedgewick Cole; that he read, com-
pleted, and signed the card; and that he returned it to
Cole. The card is dated November 12. Cully testified
that before signing the card he spoke to some of the me-
chanics, and that he did not discuss the purpose of the
card at the time, he signed it. However, according to
Cully, Cole subsequently' told him that the purpose of
the card was "to get the ball rolling," and that when
Cully asked him to explain what he meant, Cole failed to
do so (although Cully admitted that he did not give Cole
time to explain). As Cole did not "deliberately and clear-
ly cancel-the "clear language" on the card "with words
calculated to direct the signer to disregard and forget the
language ''above his signature," the card was valid.
NLRB v. Gissel Packing Co., 395 U.S. 575, 606-607
(1969).
There was considerable organizational activity during
the week of November 15, particularly among the make-
ready and other unskilled employees. Joseph Smith, testi-
fied that he gave janitor Richard Allsup a card, explain-
ing that he should read the card and sign it if he wanted
to join the Union and have the Union represent him.
Smith testified that Allsup signed, dated, and completed
the card and returned it to him. The card, dated Novem-
ber 16, was valid. Porter Patrick Evans authenticated, his
own card. Evans testified that he got his card from
Smith and Kubert; that he read it, filled it out, and
signed it; and that he returned the card to Smith. The
card, dated November 16, was valid. Porter Michael Oli-
ver's card, dated November 17, was authenticated by
Oliver and by Sedgewick Cole, who gave him the card.
Oliver testified that he read, signed, and completed the
card.- Cole testified that he told Oliver that conditions
were bad,' that the Union might help, and that they were
trying to get up a union. The card was valid.
Karl Jones testified that on November 16 he spoke to
make-ready employees , Bruce Bennett, Donald McMul-
len, and Robert Sanford, and gave them authorization
cards. Jones testified that he asked the employees "if
they wanted to sign the cards to have the UAW repre-
sent them." He told them to read and make sure they un-
derstood the cards and he offered to answer any ques-
tions. He also told them that the cards would show, how
many employees would support the Union, and would
also be a way for the Union to contact the employees.
Jones testified that he told them that the initiation fee
was $10 and that monthly dues would probably equal 2
hours' pay. Bennett and McMullen each filled out and
signed a card that day. Sanford returned a signed , dated,
and completed card to Jones the next day, after discuss-
ing the matter with his parents . Sanford, Bennett, and
McMullen were each presented as company witnesses.
Sanford did not testify concerning his card. Bennett testi-
fied that dues and initiation fees were not discussed when
he signed his card, but he did not otherwise contradict
Jones' testimony. McMullen testified that at the "first"
union meeting, organizer Steele said the initiation fee
was $10, but that if the Union came in, those employees
who did not pay their fee would have to pay $80 or $90.
According to McMullen, this meeting took place at a
restaurant, Mike's Crab House, and he probably signed
the card after the meeting, although he could not re-
member whether Smith or Steele gave him the card. So
far as indicated by the present record, the only union
meeting at Mike's Crab House took place on December
14. McMullen's card is dated November 16.
Ricky Kubert testified that at a union meeting Steele
explained the Union's initiation fee and dues policy.
Steele told the employees that the initiation fee was $10,
that they could pay the fee any time, and that dues
would not be collected until the Company and the Union
signed a contract. In light of McMullen's incredible testi-
mony concerning the sequence of events, I credit Jones
and Kubert. Jones unequivocally made clear to the em-
ployees that by signing the cards they were designating
the Union as their representative. Jones' statement that
the cards could also be used for informational purposes,
did not denigrate from their use for representational pur-
poses . The cards were valid.
Body shop employee Peter Maloney testified that he
read, completed, dated, and signed ' his card, which is
dated "Oct 15-82." Maloney testified that he did not
know the exact date on which he signed the card. The
card was stamped as received in the Board's Regional
Office on November 24, the day the Union filed its elec-
tion petition. Maloney quit the Company on December
6. I find that Maloney misdated the card, and that he
probably signed the card on Monday, November 15. In
any event the card should be considered as having been
signed not later than November 24, when it was submit-
ted to the Regional Office. Gordonsville Industries, 252
NLRB 563, 596-597 (1980), enfd. mem. 673 F.2d 550
(D.C. Cir. 1982). I find that Maloney's card is valid evi-
dence of the Union's status until December 6, when he
quit his job.
Joseph Smith testified that on November 16 he gave a
card to mechanic - James Rose, and asked if Rose's fian-
cee, Tracy Snodgrass, a make-ready employee, would be
interested in joining the Union. Rose said she probably
would. Smith gave Rose a card and Rose gave it to
Snodgrass. Smith testified that he saw Snodgrass fill out
the card and return it to Rose, who gave it to Smith.
The next day Rose quit his job. Snodgrass, ,who married
KOONS FORD OF ANNAPOLIS 517
Rose in the summer of 1983, was presented as a cOmpa-
ny witness . Snodgrass , testified that Rose gave her the
card, which was already filled out, and told her ,to hurry
and sign it and he would explain later . Snodgrass signed
the card without reading it. That evening Rose told her
that it was a union card . Snodgrass testified that at the
time she signed the card she was not aware of the orga-
nizational campaign , but later learned of the campaign,
and was told that the card would bring a union into the
shop . However, she did not ask the Union to return her
card.
I credit Snodgrass' explanation. Smith testified that he
thought Snodgrass signed the card in the morning, al-
though Snodgrass was a high school student who
worked from 4 to 9 p.m. Therefore, I do not credit
Smith's testimony that he saw Snodgrass fill out the
card . The evidence fails to indicate any organizational
activity among the make-ready employees prior to No-
vember 16. Therefore Snodgrass, who reported to work
in late afternoon , may not, have heard any talk about the
Union before she signed the card . Snodgrass trusted
Rose, and her trust was based on their personal relation-
ship. However, figuratively speaking Rose wore two
hats. Rose was Snodgrass' financee, but he was also
acting as a union representative . In soliciting union mem-
berships, Rose was obligated to adhere to the same
standard of fairness as were leading union adherents like
Smith and Kubert . Instead, Rose took advantage of his`
personal `relationship with Snodgrass , and deprived her
of an opportunity to consider or even read the card.
Therefore, I find that Snodgrass' card cannot be consid-
ered as evidence of the Union's status.
By, letter dated November 23 the Union requested rec-
ognition from the Company, and the next day the Union
filed its petition for an election. The evidence fails to in-
dicate that the Company ever responded to the Union's
request . As of November 24, 32 employees had by sign-
ing cards, validly designated the Union as their bargain-
ing representative . During the period from November 17
thru 28 there were 62 employees in the appropriate unit.
Therefore'as of November 24 a majority of employees in
the unit had designated the Union as their representative.
Subsequent organizational activity was, principally but
not exclusively directed at' new employees . Walter Livra-
mento, who signed a union card dated November 25, tes-
tified that porter Evans gave him his card. Livramento
testified without contradition that Evans told him that
the card was to get the ' employees into the Union, that
the Union meant job security, that there would soon be
an election, and that "we had to give $10 to be ... in
the election." Evans, who himself had only recently
signed a card , may well have garbled his information.
There is no evidence that organizer Steele or any princi-
pal union adherents ever told anyone that they had to
sign a union card in order to vote in the election. How-
ever, Livramento was a new employee, and may well
have believed Evan's statement . I fmd ' that Evans made a
material and coercive misrepresentation concerning the
purpose of the card, Therefore, Livramento's card
cannot be considered as evidence of the ' Union's status.
Joseph Smith testified that make-ready employee
James Marshall sought him out and asked for a card.
Marshall, told Smith - that he had been out, sick, but
wanted to join the Union . Marshall took his card to the
washroom where he filled out and signed the card, and
then returned it to Smith . Marshall was called as a com-
pany witness , but he did not testify concerning his card.
The card, dated December 1, is valid . As of that date
there were 64 employees in the unit . However, by ob-
taining Marshall's card the Union was able to retain its
majority status.
Porter Roy Epling 's card is dated December 3. Epling
and Smith testified in sum that Pat Evans introduced
Epling to Evans in the shop . Smith asked Epling if he
wanted to join the Union, and Epling answered that he
did. Smith told Epling that the card gave him the right
to bargain with the Company through the Union, that he
should read the card , and that if he agreed to join the
Union and accept union representation he should sign the
card. Epling read, dated, signed, and completed the card
(except for the Company 's name and ' address and
Epling's date of employment "12-3-82," which was en-
tered by Smith).
Smith and Epling initially testified that Epling signed
the card on his first day at work , although both subse-
quently backed away from this assertion . In fact, as stip-
ulated by the parties at the outset of this hearing, and as
confirmed by the Company's records and Epling's own
paystubs, Epling began working for the Company on
Tuesday, December 7. Ned Tomarchio testified that he
interviewed Epling (who had been recommended by
Evans) on December 3, ,that Epling filled out a Job appli-
cation on that date (which was introduced in evidence),
and that he told Epling that he would let him know. To-
marchio further testified that he called Epling on De-
cember 6 and told him to report to work the next day. I
credit Tomarchio, but I find that the card is valid be-
cause Epling signed the card "in anticipation of employ-
ment with" the Company. Riviera Manor Nursing Home,
200, NLRB 333 (1972), enfd. 487 F.2d 1405 (7th Cir.
1973). Epling knew that there was a job opening and
that he had a good chance of being hired , and he was
sufficiently familiar with his prospective job as to be able
to enter his department , job, hours ,, and rate of pay on
the authorization card.
The Company argues that the card was not valid be-
cause Epling had not made "definite arrangements" for
his employment as of December 3, and points out that in
Riviera Manor, the Board found that the signer in ques-
tion had made such arrangements. However, neither the
Board nor the court of appeals indicated that this was
the minimal standard. Rather both the Board and the
court held that the card in question would be valid if
signed "in anticipation of employment." Thus the court
initially remanded the case to the Board because the
Board failed to make a determination as to whether the
individuals in question had been accepted for employ-
ment or were employees when. they signed their authori-
zation cards, "or at least had signed their cards after ar-
ranging their employment or in anticipation of employ-
ment by respondent," 80 LRRM 3221, 3222 (7th. Cir.
1972) (emphasis added.) Therefore, Epling's card is valid
evidence of the Union's status as of December 7, when
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Epling commenced working for the Company . At this
point, following the departure of Peter Maloney, the
Union had 33 valid cards in a unit of 67 employees, i.e.,
one short of majority status.
Kevin Hall and Scott Owens began working for the
Company as porters on December 2. Joseph Smith testi-
fied that he asked them at work if they wanted to join
the Union. Smith explained that "we were thinking of
getting the United Autoworkers to represent us." They
said they would like to join. Smith testified, that he gave
them cards which they read, filled out, signed, and re-
turned to Smith. There was no discussion of dues or ini-
tiation fees. The cards dated December 8 were valid.
Jack Winemiller began working for the Company on
December 6 as a metal employee in the body shop.
Ricky Kubert testified that they talked about the Union
at work. Winemiller said that he wanted to join the
Union. Kubert gave him a card. Winemiller said he was
busy, but would take the card with him. The next day
Winemiller returned the ' card, which was filled out,
dated , and signed, to Kubert. Winemiller was called as a
company witness, but=he did not testify concerning his
card. The card, dated December 9, was valid.
John Shobe began working as a metal employee in the
body shop on November 29. Joseph Smith testified that
he gave Shobe a card in the shop. They had previously
discussed the Union. Shobe said that he wanted to join
the Union. Smith told Shobe to read the card, and sign if
he agreed with it. Shobe filled out and signed the card,
and returned it to Smith. The card, dated December, 10,
was valid. On December 14 there was a union meeting at
Mike's Crab House. Joseph Smith testified that after the
meeting, service writers David Kondracki and Norman
Pennington each asked him for an authorization card.
Smith told them that they would become union members
by signing the card. Kondracki went to the washroom
and returned his completed, dated, and signed card to
Smith . Pennington similiarly returned his card to Smith
the next day in the shop. As previously discussed, I find
that organizer Steele did not make any misrepresenta-
tions-at the December 14 meeting. The cards, both dated
December 14, were valid. Smith further testified that he
gave a card to service writer Charles Burry in the shop.
Smith asked Burry if he was interested in joining the
Union, and Burry said he was. Smith told him to read
the card and sign it if he agreed. Burry took the card
and shortly- thereafter filled it out, signed it, and returned
it to Smith. The card, dated December 16, was valid.
In sum, I find that by December 16 the Union had ob-
tained 40 valid authorization cards in a unit of 66 em-
ployees. Therefore the Union was and remained in pos-
session of valid authorization cards from a majority of
the unit employees.
IV. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE OBJECTIONS TO THE ELECTION
General Manager Hendrick testified that he learned
about the Union's election petition on November 25, but
that he heard about a week earlier that there was organi-
zational activity in the shop. He further testified that he
learned that Smith, Kubert, and Pierson were the princi-
pal union activists, although other employees wore union
insignia. On and after December 10 the Company sent
letters and distributed literature to the unit employees in
which it expressed its opposition to unionization. The
General Counsel does not contend that the literature was
unlawful. However, the General Counsel does contend
that the Company responded to the Union's campaign by
other, unlawful means.
A. Alleged Unlawful Threat. Interrogation, and
Solicitation
1. The Christmas party, and alleged threats and
interrogation by John Koons in December
On Saturday evening, December 18, the Company
held its annual Christmas party at the Bay Ridge Restau-
rant in Annapolis. By this time the election campaign
was well underway. As will be discussed, the events of
that evening marked a watershed in the Company's cam-
paign against unionization , and also tend to shed light on
the nature of that campaign both before and after as well
as on December 18. Therefore, instead of proceeding in
chronological order, I shall commence with the events of
that evening.
The party began about 8 p.m. Later that evening,
President Koons' driver informed General Manager Hen-
drick that he smelled gas in Koons' motor home, which
was parked outside the restaurant . Hendrick determined
that the gas was turned on. He returned to the restau-
rant, but encountered Ricky Kubert and Sales Manager
Debini in the hallway. Hendrick demanded to know who
turned on the gas, and made statements that suggested to
Kubert that Hendrick was accusing a union adherent or
adherents." At this point Fred Pierson was summoned
to the hallway. Hendrick's remarks led to a heated argu-
ment between Hendrick and Pierson, and they nearly
came to, blows. John Koons was summoned to the scene,
and he attempted to calm them down . In the meantime
other persons gathered in the hallway, including Service
Department Manager Tomarchio and mechanic Donald
West. At this point the conversation turned to the Union,
and the testimony is in dispute about what Koons said on
the subject.
Kubert and Pierson testified in sum that Koons said
that he did not need Annapolis, that he had a place in
Florida and could close down and move there, and that
life would go on without Koons Ford of Annapolis.
They talked about health insurance coverage. West testi-
fied that Hendrick said the Company did not have to
agree to that. According to Kubert, Koons said that he
,did not have to "negotiate" to anything. However,
Kubert subsequently testified that Koons said he did not
have to "agree" to anything. Pierson said that if there
was a strike, the Company could not get cars across a
picket line. Koons restorted that the Company could get
cars from other dealers. Kubert and Pierson testified in
sum that Pierson said that he would not have put his job
on the line if he did not feel so strongly about the Union,
whereupon Koons replied, "You already have." Donald
11 The Union withdrew an allegation that the Company thereby acted
unlawfully, and that issue is not present in this case.
KOONS FORD OF ANNAPOLIS
West corroborated their testimony in. this regard ; 10110,:of
Koon's associates attempted to break up the conversa-
tion. However, when Pierson saw Tomarchio , he pointed
to him and said that he was responsible for the Union.
Koons then called Kubert and Pierson aside and they
talked further. The following Monday Tomarchio ten-
dered his resignation . It, is undisputed that on Monday,
Koons told Kubert and Pierson that he did not want any
hard feelings, that what was said at the party was forgot-
ten, and that no action would be taken against anyone.
Koons, in his testimony, was evasive about the most
crucial aspect of the employees ' testimony and indeed
was almost apologetic. According to Koons:
I don't even remember discussing it about them put-
ting their job on the line. I said , you know, I mean
I never thought that I 'have-had no intention of
that. In fact, you know, Fred, you know, even
throughout this whole thing we considered possibly
promoting him and still might . So, it was just the
opposite.
Koons further testified that he told the employees that
the Company could not close the dealership because it
was not allowed to do so, and that the Company planned
to stay in business . General Manager Hendrick, who also
testified ' concerning the Christmas party incident, gave
confused and contradictory testimony , concerning Koons
remarks, including versions different from that of Koons.
At one point Hendrick testified that he was not sure
whether Koons said that Pierson 's job was never on the
line, or could be on the line, or was already on the line.
At another point Hendrick testified that Koons told the
employees that their jobs were probably on the line if
the Company didn't have any business, and that the
Company would close if it went bankrupt . Ned Tomar-
chio, the Company's other witness concerning the hall-
way incident, testified only concerning the incident in-
volving himself.
Pierson also testified concerning the conversation with
Koons on the shop floor about , a week before the Christ-
mas party. Pierson testified that Koons asked ' him why
they needed a union . Pierson answered that they needed
someone to represent the employees in negotiations.
Koons then asked why the employees didn't come to
him to negotiate any problem. Pierson answered that
they did not think they would be treated fairly . Pierson
testified that Koons said he did not need the dealership,
and could turn it into an apartment building or an office
building. Pierson answered that he was sorry that Koons
felt that way, and that the employees were not out to
rape him. Pierson testified that he did not know whether
anyone overheard this conversation, but that he talked to
four other employees about it.
Koons in his testimony was also somewhat evasive and
defensive about this conversation. He testified that he did
not recall this particular conversation , although he prob-
ably spoke to Pierson . With regard to closing the dealer-
ship, Koons tended ' to testify concerning his intentions
rather than what he actually said . Koons further testified
that he did not ask the employees about why they
needed a union, but did "apologize for lack of communi-
519
w in .atiat;seems to- have developed down there." In
fact, Koons did not display any interest in lack of com-
munication until the Christmas party, when he learned
that the employees regarded Tomarchio as responsible
for such failure of communication.
With regard to the conversation at the Christmas
party, I credit the testimony of the , employees to the
effect that Koons said he could close the dealership, and
told Pierson that he had put his job on the line by his
union activity. As discussed , the testimony of Koons and
Hendrick was contradictory and' evasive concerning
these matters, and Koons came close to admitting that he
told Pierson that he put his job on the line . In the con-
text in which these statements occurred , namely, the ar-
guments about the Union , Koons' statements plainly con-
stituted a threat to close the dealership if a union came
in, and an implied threat that the Company would or
could discharge employees because of their union activi-
ty. Koons did not make a prediction that was carefully
phrased on the basis of economic or other objective con-
siderations. Indeed Koons admitted that if he were in-
clined to close the dealership for economic reasons he
would have done so in January 1982 . The employees
were aware that Koons has other dealerships , including
one in Florida . In the circumstances, including Koons'
outspoken hostility to unionization, the employees could
reasonably infer that Koons would close the Annapolis
dealership rather than accept a union. Therefore, the
Company, by Koons, violated Section 8(axl) of the Act.
However, in light of Kubert's conflicting and uncorro-
borated testimony, I find that Koons did not say that he
would not negotiate with the Union. I further credit the
testimony of Pierson concerning his earlier conversation
with Koons . I ford in the context of the conversation
that Koons similarly threatened to close the dealership
rather than accept unionization . I further fmd that Koons
unlawfully interrogated Pierson concerning' his attitude
and that of other employees toward the Union. Koons
had no legitimate reason to question ' Pierson . Rather in
light of subsequent developments , which will be dis-
cussed, it is evident that Koons , was seeking information
for the purpose of learning which benefits he could
promise or grant to the employees in order to ' discourage
support for the Union . Koons, did not give Pierson any
concurrent assurance against reprisal. Rather Koons ac-
companied his interrogation with a threat to close the
dealership . Therefore the Company, by Koons, violated
Section 8(a)(1) by unlawfully interrogating Pierson and
by threatening to close the dealership if the employees
voted in the Union.
The Company contends in its brief that no fording of
unlawful conduct is warranted because of (1) Koons'
apology to I(ubert and Pierson on the Monday following
the Christmas party, and (2) a speech by Koons on Janu-
ary 10, in which he denounced alleged rumors that the
dealership would close , asserted that he had no intention
of closing the dealership, and would bargain in good
faith if the employees selected the Union as their repre-
sentative. However, such statements would not preclude
a finding that Koons previously threatened to close the
dealership or threatened other reprisal . Rather these sub-
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sequent statements are relevant to the question of (1)
whether a conventional cease-and-desist order is war-
ranted, and (2) whether the subsequent statements miti-
gate against the propriety of a remedial bargaining order.
As these questions necessitate consideration of the Com-
pany's overall course of conduct, I shall defer further
discusson of these questions to a later point in this Deci-
sion.
2. Alleged unlawful threats, interrogation, and
solicitation by Make-Ready Manager Irv Sherbert
Irv Sherbert was a relatively low-level supervisor.
However, he was looked on as something of a father
figure by the young, unskilled employees including not
only the make-ready employees under his direct supervi-
sion, but also the porters and helpers who performed
comparable, beginning level work. Therefore, he was in
a position to exert strong influence on these employees
who trusted him.
The General Counsel presented seven present or
former employees who testified concerning alleged un-
lawful statements by Sherbert. Karl Jones testified that in
late November or early December he was present in the
make-ready office with Sherbert and four make-ready
employees (Bennett, McMullen, Sanford, and Vester).
Sherbert said that he heard they were trying to get in a
union, and asked why. Jones explained the advantages of
unionization . Jones testified that Sherbert responded that
if the Union got in it would not stand behind the em-
ployees, and that the employees would not be able to get
discounts on parts, leave work early, or work on their
own cars in the shop. Pat Evans testified concerning
three conversations in the make-ready office after work,
when pursuant to their usual custom, Sherbert and, the
employees were drinking beer and talking. These conver-
sations took place in late November and December.
Evans testified that in the first conversation, at which
make-ready employees Bennett and Tom Lewis ' were
present, Sherbert said that if the Union came in, the em-
ployees would not be able to wash their own cars be-
cause he was the manager . Evans testified that in the
second conversation , at which ' employees Bennett and
Epling were present,' Sherbert said that if the Union
came in, "the last two hired would be the first two fired
because it would go by seniority and they probably
wouldn't need all that help." At the time Epling, who
was a porter, was the most recently hired employee in
the service department. Bennett, who began working for
the Company in August 1982, was the least senior em-
ployee in make-ready after the termination of Walter
Livramento on December 9.
Epling testified concerning such a conversation, but
his version differed from that of Evans and was internal-
ly inconsistent. Epling initially testified that he, Evans,
Bennett, and two other employees (apparently McMullen
and Vester) were present when Sherbert said that he was
the last hired, and that he and Bennett would' probably
be the first to go if the Union came in. However, Epling
subsequently testified, and so indicated in his affidavit,
that Sherbert did not mention I any names, but that he
(Epling) suggested that Sherbert was referring to himself
and Bennett. Evans testified that at the third conversa-
tion, at which employees Sanford, Bennett, and Lewis
were present, Sherert said that if the Union came in they
would not be allowed to drink beer as they were doing
then. Epling also testified that on occasion in the shop,
Sherbert asked him what he thought of the Union. When
Epling indicated that he would wait to decide, Sherbert
told him that the Union was a bunch of bull and that he
should talk to the boys his age and tell them that the
Union was no good. Epling did not testify that Sherbert
ever followed up on this request. Epling further testified
that on this occasion Sherbert told him that he was the
"first [sic]" hired and could be the first to go if the
Union came in.
Mechanic James Felesky testified that on one occasion
in the make-ready office, Sherbert told him that if the
Union was voted in, Koons would force a strike by "not
agreeing to anything that the Union demanded," and
then hire permanent replacements for the employees,
who would lose their jobs.12 Used-car mechanic Robert
Russell testified that on one occasion when he stopped at
the make-ready office, Sherbert told him that if the
Union got in the employees would not be able to work
on their own cars, but he (Sherbert) could do so any
time, and would do so for spite.' s
Mechanic's helper Ed Buckalew testifed concerning
two conversations with Sherbert in the make-ready de-
partment. Buckalew testified that in the first conversa-
tion, Sherbert said that if the Union came in the employ-
ees would lose privileges, and would "probably" lose the
privilege of working on their own cars, also known as
"hobby night" (i.e., on the first and third Wednesday
evenings of each month, employees were permitted to
bring in their own cars and make repairs , clean, or other-
wise service them free of charge). However, on cross-ex-
amination, Buckalew testified that Sherbert said there
was a "possibility" that hobby night would be discontin-
ued. Buckalew testified that in the second conversation,
at which helper John Howes was present, Sherbert again
said that the employees would probably lose privileges,
including hobby night, if the Union came in, and that
any employee who did anything wrong would be fired.
Howes partially corroborated the testimony of Bucka-
lew. Howes testified that in one conversation Sherbert
asked their opinion of the Union. When they said they
were undecided, Sherbert told them they did not need
the Union, and that if the union came in they would
probably lose hobby night. Howes testified that in the
second conversation, Sherbert said that he had experi-
ence with unions, and that unions caused employees to
lose their jobs if they "goofed" or were "late even
once." In response to requests by company counsel prior
to this hearing, Howes and Buckalew each signed writ-
12 In his affidavit to the Board , Felesky stated that he was never "per-
sonally" threatened or harrassed by anyone - in the Company . However,
in the same affidavit Felesky described the above conversation . Felesky's
conclusory statement does not impeach his testimony concerning the con-
versation.
Is In his investigatory affidavit, Russell stated that Sherbert said this to
himself and several other employees . However, Russell's information
concerning other employees may have been based on hearsay Therefore
his affidavit is not necessarily inconsistent with his testimony that he did
not know whether ' anyone overheard his conversation with Sherbert.
KOONS FORD OF ANNAPOLIS 521
ten statements in which they stated that Sherbert did not
threaten them . However, as the statements failed to indi-
cate just what Sherbert did tell them about the Union,
the conclusory statement that Sherbert did not "threat-
en" them has no evidentiary value, and does not impeach
the testimony of the employees.
Sherbert , in his testimony , came close to admitting the
allegations of the complaint . Indeed , he corroborated
much of the testimony of the General Counsel's wit-
nesses, and even when his version differed from those of
the employees , Sherbert's version would , in some cases,
also constitute an unlawful threat . Sherbert testified that
he told Felesky that if negotiations did not go the way
"the people" wanted , the Company might force a strike
by refusing "to give anybody anything" and then hiring
permanent replacements and putting everyone out of a
job. Sherbert initially testified that he said the employees
would "have to" go on strike , but he subsequently at-
tempted to water down this admission by asserting that
he said this "might" happen.
In light of these admissions , Sherbert 's followup asser-
tion that he did not say that Koons would force a strike
or refuse to negotiate , plainly was not credible. Sherbert
admitted that he told Jones "what might become of leav-
ing early," if the Union came in, and "what might
happen" if the negotiations went the way the Company
thought , and that the employees might lose the privilege
of working on their cars. Sherbert went on to testify that
he told the employees that they would not be able to
bring in their cars unless it was agreed to "in the con-
tract ." However, hobby night was an existing privilege
that would not depend on a contractual provision, and
that could not be taken away unless the Union specifical-
ly bargained it away , i.e., contractually or otherwise
agreed that employees could not work on their own cars.
See Yellow Cab Co., 229 NLRB 1329, 1353-1355 (1977),
enfd . in pertinent part 603 F .2d 862, 889-890 (D.C. Cir.
1978).
Therefore Sherbert's testimony , even if credited, was
tantamount to an admission that he threatened the em-
ployees with loss of hobby night if the Union came in. 14
Sherbert also admitted that he told the employees that
they would "probably" lose the privilege of drinking
beer after work on the premises, although he said noth-
ing about negotiations concerning the subject. Again,
Sherbert's testimony was tantamount to an admission of
an unlawful threat . Sherbert testified that he did not
recall saying that there would be no parts discount, or
that employees would be discharged if they slipped up or
were late once . However Sherbert admitted that he "fig-
ured" that the attendance rules would be strict if the
Union got in, and that he told the employees that he
would not be as close with them as he had been. Sher-
bert initially testified that he did not threaten any em-
ployee with layoff. However , Sherbert eventually admit-
ted after considerble evasion that he told the employees
14 At one point Sherbert testified that he permitted Buckalew to bring
in his car during working hours, but told him that if the Union came in
he would "have to wait to the regular time," i e., hobby night If so, then
Sherbert's statement constituted a threat that the Company would restrict
the privilege if the Union came in.
"the last man hired, you know . . . gets replaced," and
that he specifically referred to layoff.
The Company also presented the testimony of four
present or former make-ready employees (Robert San-
ford, Bruce Bennett, Donald McMullen, and Charles
Vester), concerning the statements allegedly made by
Sherbert. Bennett testified that he did not remember
Sherbert discussing what would happen if the Union
came in , or specifically making any reference to hobby
night or following seniority in layoffs. Vester flatly testi-
fied that Sherbert did not say how he felt about the
Union, and in sum, that he never indicated what if any-
thing the employees might lose, other than to say that
specific matters would have to be negotiated. Sanford
testified that Sherbert said that everything was negotia-
ble, but did not say that the employees would lose any-
thing if the Union came in. Sanford further testified that
he did not recall Sherbert saying anything about no
drinking, or about last hired, first to go. Sanford further
testified that he knew that Sherbert was against the
Union, based on what he said , but he failed to indicate
what Sherbert said that led him to that conclusion. In
light of Sherbert's own admissions, their testimony is
plainly incredible and worthless. Bennett did testify that
Sherbert asked his opinion on the "union issue." Bennett
thereby contradicted Sherbert's testimony that he never
asked the employees whether they were for or against
the Union.
I credit the testimony of the General Counsel's wit-
ness . I specifically find that Sherbert threatened that
Koons would force a strike by not agreeing to any union
demand, i.e., by unlawfully entering negotiations with a
closed mind, which would cause the employees to lose
their jobs. I further find that Sherbert expressly threat-
ened Epling, and subsequently impliedly threatened
Epling and Bennett with layoff if the Union came in. As
of November and December the Company was in the
process of hiring additional employees, and anticipated
that business would improve. Nevertheless, without
giving any objective basis, Sherbert equated unionization
with a need for fewer employees, and indicated to the
employees that they would probably be laid off (and not
simply that seniority would be followed in the unlikely
event of an ecomonic layoff).
I further find that Sherbert, without any objective
basis and without any reference to the give-and-take of
good-faith contract negotiations, threatened the employ-
ees with loss of discount on parts and the priviledge of
working on their own cars, leaving work early, and
drinking beer after work on company premises, and fur-
ther threatened them with severe discipline in the form
of discharge for making one mistake or for being late
once. At no time did Sherbert suggest that the employ-
ees might gain anything, or even that the Union would
seek anything to compensate for those losses. A union
does not enter contract negotiations for the purpose of
persuading the employer to take away benefits from its
employees. It is evident that Sherbert was sending a
clear signal to the employees that in reprisal for union-
ization, the Company would deprive or seek to deprive
the employees of their benefits and privileges, and would
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impose or seek to impose severe discipline on them.
Moreover, an employer violates Section 8 (aXl) by telling
its employees without any objective basis in fact, that a
union would seek more onerous working conditions if se-
lected as the employees ', representative . M. O'Neil Co.,
211 NLRB 150, 151 (1974), enfd. 514 F.2d 894 (D.C. Cir.
1975); H. A. Kuhle Co., 205 NLRB 88, 104-105 (1973).
Therefore, Sherbert's threats were unlawful even to the
extent that he suggested that the Union would be respon-
sible for these horrible consequences.
I further find, on the basis of Sherbert's own admis-
sion, that Sherbert violated Section 8(a)(1) by threaten-
ing the employees that if the Union came in he would
not be as close with them as he had been . Wilker Bros.
CO., 236 NLRB 1371, 1372 (1978), enfd. in pertinent part
652 F.2d 660 (6th Cir. 1981). The Company's argument
that Sherbert was simply a garrulous, friendly fellow
who expressed his own opinions as one worker to his fel-
lows, is not persuasive. As General ' Manager Hendrick
admitted, the Company's managerial and supervisory
personnel were kept well informed as to what they could
and could not tell the employees. There is no suggestion
that the Company ever censured Sherbert or disavowed
his remarks . Rather, as has been and will be discussed,
Sherbert's statements were consistent with the statements
of other supervisors in the chain -of-command, up to and
including John Koons. Therefore, I find that the Compa-
ny, by Sherbert, violated Section 8(a)(1) of the Act by
the foregoing threats. However, I shall defer my con-
cluding findings with regard to the alleged unlawful in-
terrogation and solicitation until the next section of this
decision.
3. Alleged unlawful threats , interrogation, and
solicitation by Service Manager Ned Tomarchio
The General Counsel presented testimony by five
present or former employees concerning alleged unlaw-
ful statements by former Service Manager Tomarchio.
Mechanic Karl Jones testified that on one occasion in
late November, he went to Tomarchio's office to discuss
a work problem. Tomarchio raised the subject of the
Union, asserting that Jones did not have to discuss it.
Jones answered that he had nothing to hide. Tomarchio
asked if they were trying to get in a union. Jones said
they were. Jones testified that Tomarchio said , in a sar-
castic tone, that it was a "good idea," and went on to
assert that if the Union came in "you won 't be able to
recognize that many faces in the back of the shop be-
cause if they can't stand my rules, they'll never be able
to stand up to the union rules." Jones testified that To-
marchio also told him that if the Union came in the em-
ployees would not be able to work on their own cars, or
leave work early (even with permission), and the parts
department would not be able to give them discounts on
parts. Jones testified that on a later occasion, when they
were returning together from Jessup, Maryland, after de-
livering cars to the State of Maryland, Jones referred to
the fact that he was working on a friend's car (outside
the dealership and on his own time). The Company per-
mitted this practice if it did not conflict with shop work
or deprive the Company of income. Jones testified that
Tomarchio said that the Union would not allow the em-
ployees to do this, and that they could be fined or fired
for working on can outside of the dealership . Jones fur-
ther testified that in this conversation Tomarchio also
said that John Koons did not need the Anapolis dealer-
ship, had other businesses , and could "close the doors"
and "just lock us out."
Mechanic Ricky Kubert testified that on one occasion
in mid-December, he also went to Tomarchio's office to
discuss a work problem . Tomarchio asked if there was
any way he could talk Kubert out of the Union. Kubert
told Tomarchio that he could "give it your best shot."
Kubert testified that Tomarchio told him that if the
Union came in, the rules and regulations would be much
stricter, that it would be difficult, for the employees to
adhere to union "rules and regulations ," that employees
could be fired for being late or for a "comeback ," i.e.,
returns by customers for unsatisfactory or incomplete
work, and that if Kubert fell down and injured himself,
Tomarchio would not be able to pick him up "because of
the Union regulations ." When Kubert replied that the
employees would be the Union, Tomarchio insisted that
the Union would bring its own rules and regulations, and
that Kubert would have no say at all. Kubert testified
that on another occasion Tomarchio told him that he
would be glad to have a union, beause the Union would
help him make the rules harder, and he could impose
more rules and regulations.
Mechanic Donald West testified that on one occasion
in early December he went to Tomarchio's office to ask
for more paid time on warranty job. Tomarchio told
West that if the Union came in, he would not be able to
help West. Tomarchio then sternly asserted that if West
could not do the job in the allowed time he would get
someone else to do it . Having made his point , Tomarchio
then put his arm around West, told him that since there
was no union he could help him, and gave West the
extra time.
Pat Evans testified that before he signed a union card,
Tomarchio promised to send him to front-end school
while remaining on the payroll. Evans further testified
that on three occasions in late November and early De-
cember he was summoned to Tomarchio's office to dis-
cuss the Union, and that Roy Epling was also'summoned
to the first interview. Evans testified that at the first
interview Tomarchio asked if he knew about the Union
and who signed cards, and Evans answered that all the
mechanics did. Tomarchio then asked Evans to get the
porters and helpers to vote no, because he needed all the
help he could get. As Evans left the office he vocally
cursed the Union. At the second interview Tomarchio
asked if he had gotten anyone to vote no. Evans an-
swered that he did. Tomarchio told him that if the Union
came in he could not go to front-end school, because se-
niority came first and he (Tomarchio) would have no
control. Evans testified that' in the third interview, To-
marchio asked him what the Union wanted, and he told
him. Evans added that he had some porte;s and helpers
who were going to vote no, whereupon Tomarchio ex-
pressed his approval.
Epling testified concerning an interview with Tomar-
chio at which Evans was present. However, Epling's tes-
KOONS FORD OF ANNAPOLIS 523
timony was both internally inconsistent and partiallq'in-
consistent with that of Evans. Epling testified that To-
marchio told them that only seniority counted, and that
if the Union came in they did not have a good chance of
moving up. He told them to talk to the other young em-
ployees and tell them not to vote for the Union. Epling
testified that they agreed, but did not say they were
against the Union. Epling initially testified that they did
not talk to the employees, but he subsequently testified
that he did not know what Evans did.
Tomarchio testified that in a conversation with em-
ployees Jones, Buckalew, Howes, and Evans, at which
Evans spoke against the Union, he told the employees
that in a union situation, seniority counts for more than
ability. Tomarchio testified that, he was referring to op-
portunity for advancement , and did not mention dis-
charge or layoff. Tomarchio further testified that on
their trip back from Jessup, Jones asked whether Koons
would close the dealership if the Union came in, where-
upon Tomarchio answered with a profane expression to
the effect that Koons lacked the courage. Tomarchio
also testified that on another occasion Jones told him
that he was against the Union, whereupon Tomarchio in-
sisted that he did not care . According to Tomarchio,
Jones asked whether they would lose privileges, such as
the parts discount and hobby night, whereupon Tomar-
chio answered that it depended on whatever was negoti-
ated. Tomarchio further testified that with regard to
leaving work early, he told Jones that the employees
would have to be at the dealership during the hours
spelled out in a contract.
Tomarchio testified that Kubert repeatedly sought to
question him about his opinion of the Union, and he tried
to avoid such discussions . According to Tomarchio, he
told Kubert and other employees that he didn't care
whether the Union came in, and that he could manage in
either a union or nonunion situation. Tomarchio testified
that Kubert told him that the employees would not have
to punch a timeclock when the Union came in, and that
he disagreed, asserting that a contract would contain
business principles that would be negotiated by Koons.
Tomarchio testified that he told West that in a union sit-
uation, the contract would provide for skill levels, and
that each employee would be expected to perform by
himself at his skill level. According to Tomarchio, he
told West that he could help, but that if the Union came
in he would be administratively tied up, his time would
be restricted, and he would not always be availale. To-
marchio further testified that Evans voluntarily told him
that he would not let him down, and would vote against
the Union, whereupon Tomarchio replied that he did not
care, that it was up to Evans, and that if he felt so
strongly he should go out and spread the word. Accord-
ing to Tomarchio, Evans voluntarily reported back that
others Would vote against the Union, whereupon Tomar-
chio replied that he did not care. Tomarchio further tes-
tified that he did not question employees about their
union activity or sympathies, or solicit employees to
oppose the Union, ' or threaten employees with reprisals
as alleged in the complaint.
I credit the testimony of Jones, Kubert, West, and
Evans, and L credit the testimony of Epling to the extent
that it is consistent with that of Evans. The statements
attributed to Tomarchio are consistent with the contem-
poraneous statements and conduct of Make-Ready Man-
ager Sherbert and with Koons' statement at the Christ-
mas party, and together indicate a company policy with
regard to its opposition to unionization. Moreover To-
marchio repeatedly demonstrated a personal vindictive-
ness toward the employees in general and the leading
union adherents in particular, which tended to color both
his version of the conversations in question and the
actual situation in the workplace.
Thus, Tomarchio testified that Ricky Kubert was
"very opinionated" and "looking for me to be the scape-
goat," that Jones "was always buttering up to me," and
that the service department employees were "undisci-
plined." In fact, the Company had high regard for its
line mechanics, and Jones, who was assigned two helpers
by Tomarchio, was regarded as one of the best mechan-
ics. This is not to say that I have no credibility problems
with any of the General Counsel's witnesses. As indicat-
ed, I have substantial reservations with respect to the tes-
timony of Epling. However, I fmd it unlikely that all
five witnesses would knowingly testify falsely against the
Company, particularly Kubert, Jones, and West, all of
whom were employed by the Company at the time of
their testimony. Kubert in particular generally impressed
me as a candid witness who did not hesitate to admit
facts that were favorable to the Company, and who held
up under cross-examination despite repeated attempts by
company counsel ' to paraphrase or misconstrue his testi-
mony. 1s
I fmd that the Company, by Tomarchio, violated Sec-
tion 8(a)(1) by threatenng its employees with plant clo-
sure and loss of jobs, more severe discipline including
fines and discharges and onerous "rules and regulations,"
refusal to help employees in their work, loss of schooling
or other opportunity for advancement, and loss of the
benefits and privileges of discounts on parts, leaving
work early, working on their own cars or on other cars
outside the dealership, all if the employees selected the
Union as their bargaining representative. Tomarchio
made no reference to the collective -bargaining process,
and did not suggest that the employees might gain any-
thing from this process. Rather Tomarchio simply equat-
ed union representation with all of these dire conse-
quences, either as a result of company action or through
the thinly disguished pretext of fictitious "union rules
and regulations." Therefore the threats were unlawful.
M. O'Neill Co., supra; H. A. Kuhie Co., supra.
I further find that the Company, by Tomarchio and
Sherbert, violated Section 8(a)(1) by soliciting Evans and
Epling to persuade other employees to oppose the union
and to report on the results of such activity, i.e., the atti-
tude of other employees. The Company was particularly
determined to ' use Evans, a self-reliant, intelligent, and
ambitious individual who might be in a position to influ-
is In his affidavit, Kubert stated that no one from the Company har-
assed or threatened or promised him anything personally. However, in
the same affidavit Kubert described his conversations with Tomarchio.
Therefore, Kubert's conclusory statement in his affidavit does not tend to
impeach his testimony in this proceeding.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence other young employees. The Company thereby vio-
lated Section 8(a)(1) of the Act. Vincent et Vincent of Al-
lentown Mall, 259 NLRB 1025 (1982). I further find that
the Company, by Tomarchio and Sherbert, violated Sec-
tion 8(aXl) by interrogating employees concerning their
union attitude and activities and those of their fellow em-
ployees. The supervisors had no legitimate reason to
question the employees, and in only one instance did the
supervisor inform the employees that he did not have to
answer. In,some instances , involving Evans and Epling,
the employees were summoned to Tomarchio 's office in
an atmosphere of unnatural formality . In the circum-
stances, the interrogation was demonstrably preliminary
to an unlawful purpose, namely to determine the
strengths and weaknesses of union support in order to
counter the union campaign by company-sponsored em-
ployee solicitation, threats of reprisal, and (as will be dis-
cussed) redress of grievances and grants of benefit.
Therefore, the interrogation was unlawful. Vincent et
Vincent, supra, 259 NLRB at 1025-1026; Sparton Plastics,
269,NLRB 546, 552 (1984).16
On Wednesday, January 5, at 4:30 p.m. General Man-
ager Hendrick conducted a meeting of the service de-
partment personnel in the upstairs conference room.
Hendrick also spoke separately to the body shop employ-
ees. Mechanics Smith , Kubert, Jones, Felesky, and Pier-
son testified for the General Counsel concerning the
service department meeting. Acting Service Manager
Collins began the meeting by discussing shop matters and
announcing certain awards to the mechanics (the awards
will be discussed at a later point in this decision). Hen-
drick then spoke concerning the Company's policy with
regard to unionization and the election campaign . Smith,
Kubert, and Jones testified in sum that Hendrick said if
the Union got in he would not be able to talk directly to
the employees as he had been doing, but would have to
go to the Union. 117
Smith, Kubert, and Felesky all testified that Hendrick
said there would be no discounts on parts if the Union
got in. Felesky further testified that Hendrick said the
employees would, not be able to charge parts, and Smith
testified that he said the Company would no longer make
personal loans, as it had done for some employees. Fe-
lesky and Kubert, testified that Hendrick said the employ-
ees would lose the privilege of working on their own
cars. However, Smith testified that he said the employees
would probably lose , hobby night, and that this was the
only time that Hendrick used the word "probably." The
employees testified in sum that Hendrick did not say that
these matters would depend on the outcome of contract
16 In his brief (fn. 49) the General Counsel withdrew the, allegation of
par. 10(b) of the complaint that Tomarchio unlawfully created the 'im-
pression of surveillance by informing the employees he knew the 'me-
chanics had signed cards . Par. 10(a) of the complaint' alleges that Tomar-
chio solicited employees to inform management about who signed union
cards. I rind that the statement in question (to Evans) was interrogation
rather than solicitation . However, as discussed, I find that Tomarchio un-
lawfully solicited Evans to report on the results of his antiumon talk
among employees.
17 Par. 20 of the complaint alleges that on two occasions in early Janu-
ary, Hendrick made statements to this effect in his office. No evidence
was adduced concerning such conversations . I find that if such statements
were made at all, they were made at the service department meeting
negotiations . Smith, Kubert, and Felesky testified in sum
that Hendrick said the Company was actively seeking to
replace Jim Collins and Betty Dorr with people who
were more qualified to deal with a union. However,
Pierson, who questioned Hendrick about the matter,
gave a more detailed version of Hendrick 's remarks.
Pierson testified that Hendrick said the Company was
seeking a service manager and a body shop manager.
Pierson then asked what was wrong with the present
managers, whereupon Hendrick replied that if the Union
got in the Company would need someone who was more
familiar with the workings of a union and how to deal
with the situation. Both Collins and Dorr were popular
among the employees.
It is undisputed that Hendrick told the employees that
the rumors about closing were not true, and that the
dealership would not close (in fact, as previously dis-
cussed, the alleged "rumors" began with John Koons at
the Christmas party). Hendricks testified that he did say
the Company might not be able to keep open if it had, to
pay out more in benefits than it could afford. I also
credit the testimony of Hendricks that he said the Com-
pany would bargain in good faith. Hendrick also apolo-
gized for his, accusations at the Christmas party concern-
ing Koons' mobile home . With regard to the allegations
of the complaint, Hendrick testified that he told the em-
ployees that they did not need a union, that the Compa-
ny had an open door policy, and that with a "third
party" the employees would not have much to say. Hen-
drick testified that he did not say the employees would
lose discounts or hobby night, but did say that he did not
know what would be in a contract. Hendrick further tes-
tified that he said he did not know if the Company
would be able to continue making loans . Hendrick
denied saying that the Company would terminate Collins
and Don.
According to Hendrick, he said that he was looking
for a body shop foreman (not manager), and that he did
not know if he could make Collins the permanent service
manager, because he did not know the qualifications if
the Company lost the election and had to work with a
union. (As heretofore found, Crip Brown was promoted
to body` shop foreman prior to this meeting.) Collins,
who was present at the meeting , testified that Hendrick
told Pierson that Collins would be considered for service
manager, and that Hendrick also said he was looking for
a body shop foreman. However, Collins did not corrobo-
rate Hendrick's testimony with regard to other specific
allegations of the complaint. Don was evidently not
present at the meeting. The Company produced three
present or former employee witnesses concerning the
meeting (Robert Sanford, Bruce Bennett, and Donald
McMullen). They testified in sum that Hendrick said the
Company would not close but would bargain in good
faith. However, they did not corroborate Hendrick's tes-
timony with regard to the specific allegations of the
complaint. The employees testified in sum that they
could not remember what else was said.18
is In an unsworn statement that he gave to the Company's attorneys,
Edward Buckalew said that there were no threats at the meeting . As pre-
Continued
KOONS FORD OF ANNAPOLIS 525
I credit the testimony of the General Counsel's 'wit-
nesses and I do not, unless otherwise indicated , credit
Hendrick's testimony to the extent that it conflicts with
their testimony. In light of Smith's testimony, I fmd that
Hendrick spoke in absolute terms about what would
happen if the Union came in, except that he said that the
employees would ' probably lose hobby night . Hendrick's
statements were consistent with those made by Tomar-
chio and Sherbert, except that after the confrontation at
the Christmas party, the Company tended to take a
softer line; by backing away from its more extreme
threats to close the dealership or force a strike by not
agreeing to any union demands . As discussed, I find it
unlikely that the line mechanics would knowingly testify
falsely against the Company . Hendrick's testimony with
regard to the allegations of the complaint ' was substan-
tially uncorroborated except for the matter of Collins
and Dorr, and his testimony with regard to Dorr was de-
monstrably false, because the Company was not looking
for a body shop foreman at that time.
I find that the Company by Hendrick violated Section
8(a)(1) by threatening the employees with loss of access
to management if they voted for the Union . Tipton ' Elec-
tric Co., 242 NLRB 202, 205-206 (1979), enfd. 621 F.2d
890 (8th Cir. 1980); Community Cash Stores, 238 NLRB
265,,268 (1978). I further find that Hendrick violated
Section 8(a)(1) by threatening the employees with loss of
the benefits and privileges of discounts and charging
parts, hobby night, and obtaining personal loans from the
Company. Hendrick did not speak in terms of the give-
and-take of collective bargaining . Rather, without giving
any objective reasons, he told the employees that they
would or probably would lose these benefits and privi-
leges if the Union came in. By making these threats,
Hendrick effectively nullified his assertion that the Com-
pany would bargain in good faith . However, I find that
Hendrick did not violate Section 8 (a)(1) by telling the
employees that the Company was actively seeking to re-
place Collins and Dorr . As these managers were supervi-
sors under the Act, the Company could lawfully'termi-
nate them for union-related reasons, and the Company
did not act unlawfully by informing the employees of its
intentions in this regard . See Algonquin Bowling Center,
170 NLRB 1768, 1770 (1968).
Patrick Evans testified that he made an appointment to
meet with Hendrick on January , 10, in order to hear his
side before the election . Evans testified that Hendrick
said he could not say much , but that all he could guaran-
tee from the Union was dues , and that if the Union came
in there probably would never be another Christmas
party unless the Union paid for it . Evans testified that he
told other employees about this conversation . Hendrick
testified that Evans questioned him about the Union,
asked what changes would take place if the Union came
in, and specifically, whether there would still be a
Christmas party . Hendrick testified he answered that
whether the employees gained or lost depended on the
outcome of negotiations, and with regard to the Christ-
mas party, that "economically, things can change" with
viously discussed, I fmd that such conclusory statements have little pro-
bative value.
or without the Union, and that he didn 't know the
answer . I credit Evans.
If Evans wished to question Hendrick about specific
matters, then it is unlikely that he would have - chosen the
annual Christmas party as a subject for discussion.
Rather it is more likely, as testified by Evans , that Hen-
drick injected the matter into their conversation. More-
over, the Company continued to have a Christmas party
even in 1980 and 1981 , when it was ostensibly operating
at a substantial loss . Therefore, Hendrick's alleged expla-
nation to Evans does not ring true , because it is evident
that absent a discriminatory motive, the Company had
no intention of discounting the annual Christmas party
even under the worst .of circumstances . I find that the
Company, by Hendrick, violated Section 8(a)(1) by
threatening its employees with loss of ' the annual Christ-
mas party if the employees selected the Union as their
representative.
5. Alleged threats by John Koons on January 10
On Monday, January 10 John Koons addressed a
meeting of the service and parts department employees.
Koons testified in sum that he made clear his opposition
to unionization, but apologized for the lack of communi-
cation under Tomarchio , asserted that he would not
close the dealership , and further asserted that he would
bargain in good faith if the Union came in . Koons' testi-
mony was corroborated by present and former employee
witnesses for both sides, including Karl Jones and Ricky
Kubert. However, former line mechanic Thomas Dixon
testified that Koons said there had been "a lot of fun in
the shop prior to the union activities ," but that if the
Union came in he would not be able to lend money or
let anyone charge parts, and would not help the employ-
ees. Dixon further testified that Koons said he would not
close the dealership unless the Union forced him to do so
by asking too much. Koons, in his testimony, denied
making the alleged threats , or even discussing the matter
of credit and loans . Koons testified that Hendrick formu-
lated company policy with regard to these matters, and
that he was not fully familiar with that policy. Dixon's
version of Koons' speech was uncorroborated by any
other witness . He tended to be hesitant and uncertain
about just what Koons said . It is quite possible that
Dixon was confused between Hendrick's speech and
Koons' speech . I credit Koons, and I find that Koons did
not make any unlawful threats in his January 10 speech.
B. Alleged Unlawful Pay Increases, Bonuses and
Other Changes in Employee Compensation
The complaint alleges that the Company violated Sec-
tion 8(a)(1) and (3) of the Act by granting certain pay
increases, bonuses, and other changes in compensation to
unit employees ' during the election campaign . 19 All of
19 The complaint alleges that the Company made these changes be-
cause the named employees "joined, supported or assisted the Union" and
engaged in other protected concerted activities, "and in order to discour-
age employees from engaging in such activities." However, in light of the
specific alleged unlawful changes and the evidence presented in support
of the complaint, I do not understand the thrust of the General Counsel's
Continued
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these changes are alleged to have occurred about Janu-
ary 6, i.e., within a week of the election, except for bo-
nuses to make-ready employees that were announced at
the Christmas party on December 18. I shall first discuss
one of the changes that occurred in January, because, as
will be discussed, the circumstances of that change are
evidentiary with respect to the other allegations of the
complaint and the Company's answer to those allega-
tions.
1. Change in formula for computation of body shop
employees' wages
During the election campaign there were six metal em-
ployees and three painters in the body shop . Prior to
April 1982, they were paid weekly on the basis of 50-
percent of the labor charge for the jobs on which they
worked. (The labor cost is determined by the Crashbook
Guide. For warranty work the employees were paid
under the flat-hour system.) The metal employees, but
not the painters, purchased their own materials, i .e., tape,
putty, fiberglass , sandpaper, grinding discs , and similar
items. In April 1982 the Company changed the compen-
sation formula . Painters received 45 percent of labor
charges up to $1200, and 50 percent above that amount.
Metal employees were paid on a sliding scale of 40 per-
cent of labor charges up to $800, 42.5 percent of the
amount from $800 to $960, and 45 percent of the gross
labor charges above $960. However, the Company, sup-
plied all materials at no cost to the employees. There is
no contention by the Company that this change took
place as the result of any periodic evaluation. General
Manager Hendrick specifically admitted that neither the
April 1982 change nor the January 1983 change, which
is the subject of the complaint, were made as the result
of any semiannual evaluation. (Moreover, as will be dis-
cussed, the Company contends that such reviews were
made in June and December and implemented in July
and January of each year. Therefore, the April 1982
change would not fit into this pattern.)
It is evident, at least with respect to the painters, that
the April 1982 change was a reduction in their rate of
pay. The Company's witness gave conflicting reasons for
this change. Hendrick testified that John Koons told him
that most shops paid only 45 percent, and that the Com-
pany was having problems that were caused by the use
of inferior materials. However, Body Shop Manager
Dorr testified that there were no such problems. Don
testified that she was told that work was slow and the
change was expected to make the employees more pro-
ductive, but she professed to be unable to explain how
the change would achieve this result. John Koons testi-
fied that he reduced the rate of pay at JKJ Chevrolet,
and instructed Hendrick to do the same at Annapolis, in
order to produce more income for the Company through
centralized purchasing of supplies. The explanation
makes no sense because the metal employees had been
case to be that the Company granted increases and benefits only to em-
ployees who joined the Union. Rather the thrust of its case appears to be
based on the second conclusory assertion, namely, that the Company
made these changes in order to discourage employee support for the
Union.
purchasing supplies at no cost to the Company, and the
Company had always furnished supplies for the painters.
Koons was correct in part, namely that the change was
intended "to make more profit for ourselves." In sum,
the Company sought to make more profit by reducing
the rate of pay of its body shop employees, and by plac-
ing them in a position where they had to produce more
in order to move into a higher income rate.
The change was extremely unpopular with the em-
ployees, who from the beginning constantly complained
to Dorr; who in turn informed Hendrick of these com-
plaints but to no avail. Dorr testified that the employees
told her the change would cost them $2000-$3000 per
year. In September Service Manager Tomarchio attempt-
ed on his own to institute a different compensation
system, but his action was promptly countermanded by
Hendrick. About this time one of the body shop employ-
ees quit his job because of dissatisfaction with the com-
pensation system. According to Hendrick, Dorr asked
him to permit Tomarchio to continue the revised system.
However, Dorr testified that Tomarchio's system was
"different and confusing" and that she repeatedly asked
Hendrick to restore the former system. According to
Hendrick and Dorr, Hendrick told her that he would re-
evaluate the compensation system in January. In fact,
Hendrick had no authority to make such a promise, be-
cause the April 1982 change had been personally ordered
by John Koons.
In his testimony, Koons was vague and evasive about
when he decided to restore the 50-percent compensation
rate. According to Koons, the matter was under discus-
sion since September , and he was "leaning that way" in
November or December, but the actual decision was not
made until December or January, and that he and Hen-
drick agreed on the change in early January. The Com-
pany presented several body shop employees who testi-
fied concerning the compensation system. However, only
one witness testified that there was any 'promise to
review the system, and that witness ended up by cor-
roborating the General Counsel's position.
Metal employee Archie Brown testified that in Sep-
tember or October, Betty Dorr told him that they would
let the existing system remain in effect until January to
see if it would work. However, Brown then testified that
Dorr said they would "let it stand for a year to see if it
worked." If Don meant one year from April 1982, then
the existing system would remain in effect until April
1983. If Don meant one year from their conversation,
then it is evident that the existing system would remain
in effect until at least September 1983 . Either way, it is
evident from Brown's testimony that as of September
1982 the Company had no intention of changing or even
reconsidering the existing system in or about January.
It is 'undisputed that effective as of January 6, the
Company restored the former 50 percent compensation
rate for the body shop employees. Hendrick and Dorr
testified in sum that in early January, Dorr met with the
body shop employees and offered them a choice of either
continuing the existing compensation system or returning
to the 50-percent compensation rate, provided that the
metal employees purchased quality materials. The em-
KOONS FORD OF ANNAPOLIS
ployees voted unanimously to return to the former
system. Dorr informed Hendrick of their choice. Hen-
drick told her that the change would be implemented in
the next pay period, and Dorr promptly informed the
employees. No evidence was introduced that the Compa-
ny ever evaluated the compensation system as, allegedly
promised by Hendrick. As indicated, the Company let
the employees make their choice. Indeed, the Company
has virtually conceded in this proceeding that it restored
the former system as a means of redressing its employees'
grievances. In its answer , the Company conceded that it
restored the former compensation rate as the result of
.,an ongoing effort and dialogue between Respondent
said its effected employees concerning the most desirable
and effective system to be used in meeting the needs of
both respondent and its employees." In fact, prior to De-
cember 1982 , the Company turned a deaf ear to its em-
ployees' complaints . Betty Dorr admitted that she knew
that the Union was using the compensation problem as
an issue in the campaign, and that in December she told
John Koons that the biggest problem in her shop was
that the employees wanted the old compensation formu-
la. It is also undisputed that after the Company restored
the former formula, it made no effort to monitor the pur-
chase of materials by the metal employees and never told
them what materials they should use. Indeed , several
company witnesses testified to that effect.
I find that but for the Union's successful organizational
campaign and its petition for a Board election, the Com-
pany would not have restored the former compensation
system. I further find that the Company restored the
former system in order to discourage employee support
for the Union in the pending election. Therefore, the
Company violated Section 8(aXl) and (3) of the Act. See
generally NLRB v. Exchange Parts Co., 375 U.S. 405,
409-410 (1964); NLRB v. Pandel-Bradford, Inc., 520 F,2d
275, 279-282 (1st Cir. 1975). Specifically, it is unlawful
for an employer to grant redress of employee grievances
during an election campaign in order to discourage sup-
port for a union, regardless of whether the employer's
action actually results in monetary benefit to the employ-
ees. See Uarco, Inc., 216 NLRB 1 (1974).
Therefore, in determining whether the Employer acted
unlawfully, it is immaterial whether the change actually
resulted in financial benefit to the employees. In fact, the
change did result in a higher, rate of compensation.
Indeed, the employees' own complaints speak for them-
selves . It is unlikely that employees would persistently
and urgently demand a return to a system that paid them
less or, the same as they were currently earning . With re-
spect to the painters, it is obvious that they received a
higher rate of pay under the pre-April 1982 system be-
cause they never paid for their own supplies. Fifty per-
cent of $1200 is more than 45 percent of $1200 ($60 per
week more, to be exact), In support of its contention that
the employees did not make more income as a result of
the January change, the Company presented a compari-
son of the employees' gross wages under the formula in
effect from April 1982 to January 1983, with that under
the restored former formula since January 1983.
The Company's argument begs the question . The em-
ployees' gross income depends first and foremost on their
527
volume of work, i.e., gross sales, which in turn depends
primarily on factors other than their rate of compensa-
tion. A more accurate measure of the change may be
made by comparing the employees ' earnings under the
April 1982 formula with that under the, formula restored
in January, for weeks in which they had comparable
gross labor sales figures on their respective jobs . For ex-
ample, during the week ending December 1, 1982 , paint-
er Jim Fenderson earned $301.14 on gross labor sales of
$669.20. During the week ending April 6, 1983, under
the restored 50-percent formula, Fenderson earned $331
on gross labor sales of $662 . During the week ending
April 14, 1982, metal employee Kenneth Boston earned
$271.44 on gross labor sales of $678.60, which is a low
volume of business for metal employees . During another
slow week in 1983 (week ending April 20, 1983) Boston
earned $308.80 on gross labor sales of $617.60, i.e., a dif-
ference in earnings of about $37. The difference in earn-
ings was substantially greater during comparatively busy
weeks., During the week ending June 30, 1982 , metal, em-
ployee Sedgewick Cole earned $569.51 on gross labor
sales of $1269.79. During the week ending January 12,
1983,' Cole earned $631.41 on ' gross labor sales of
$1262.8 1, i.e., a difference of about $62. Under the last
week of the sliding scale formula , metal employee Jack
Winemiller earned $667.17 ' on gross labor sales of
$1482.60. The next week, under the restored 50-percent
formula, Winemiller earned $731.80 onn gross labor sales
of $1463.60, i.e., a difference of over $64.'
Nevertheless, the Company contends that the metal
employees did not actually make any financial gain be-
cause they now had to pay for their own supplies. In
support of this contention, the Company presented wit-
nesses who testified in sum that the metal employes spent
from $30 to $40 per week on supplies. No records were
presented in support of this contention. However, the
comparative figures discussed above indicate that, even
assuming these estimates to be correct , the metal employ-
ees were nevertheless in a position to make more money
under the 50-percent formula. Moreover, the 'employees
could deduct such expenses on their Federal and State
income tax returns. For this and other' reasons indicated
by the evidence, I am inclined to view these estimates of
expense figures with some skepticism. Thus Jack Wine-
muller testified that he spent about $30 per week on sup-
plies, depending on the work done. Sedgewick Cole tes-
tified that he spent $30 to $40 per week on supplies de-
pending on the work done. However, 'the Company's
labor sales figures indicate that Winemiller was the body
shop's biggest producer during the first 7 months of
1983. Winemiller worked on jobs with gross labor sales
totaling $31,382.65, compared with $19,779.11 for Cole
during the same period. These figures, coupled with the
employees' obvious self-interest and their own strong
preference for a system under which they purchased
their own supplies, tends to indicate that Cole, at , least,
was exaggerating. ,
In sum, I find that the Company violated Section
8(a)(1) and (3) of the Act by redressing employee griev-
ances and by granting a higher rate of pay to the body
shop employees in order to discourage employee support
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union. The Company waited until shortly before
the election in order to maximize the impact of its action.
It is unlikely that the Company would have embarked on
such a course of action without also attempting to simi-
larly appease other important segments of the election
unit. Therefore, I find that the evidence with respect to
the wage formula change, including the Company's ad-
missions with respect to the reasons for that change, is
also evidential with respect to other increases and bo-
nuses granted during the election campaign , and tends to
impeach the Company's asserted reasons for such in-
creases.
2. Bonuses to make-ready workers, and the
technician of the year and technician of the month
awards
At the December 18 Christmas party, General Manag-
er Hendrick announced that the Company was awarding
$50 bonuses to eight named employees for their "fine
work" in preparing a large number of cars for delivery
to the State of Maryland (Hendrick inadvertently failed
to name a ninth employee , Edward Buckalew, who was
given his check the next workday). The General Counsel
contends that the awards were unlawful. In support of its
position that the awards were not unlawful motivated,
the Company presented evidence concerning "technician
of the year" and "technician of the month" awards in
order to show that the granting of bonuses was not un-
usual. For the reason that will,be discussed, I find that
the bonuses to the make-ready workers was not discri-
minatorily motivated, but that the Company distributed
technician of the year and retroactive technician of the
month money among its line mechanics in order to dis-
courage support for the Union, and thereby violated Sec-
tion 8(axl) and (3) of the Act.
The $50 bonuses were awarded to make-ready em-
ployees and some regularly classified porters and helpers
who were specially assigned to prepare a fleet of cars for
delivery to the State of Maryland. The contract in ques-
tion ' called for the delivery of some 351 cars over a
period of about 8 months. However, a substantial number
of the cars were delivered in early December. Hendrick
testified that some 172 cars were delivered during a short
period of time in December . Preparation was made diffi-
cult by rainy weather. Some of the work was performed
during overtime hours . Most of the work was performed
by the Company's young, unskilled, and relatively low-
paid employees . In these circumstances, it would not be
surprising that the Company, in a burst of Christmas
good will, might choose to reward the make-ready
workers in some way. I recognize that this is a close
question.
The bonuses were announced and granted during the
election campaign. However, as indicated, the bonuses
were awarded in the context of another unusual situa-
tion. The Company regarded' its make-ready and other
unskilled personnel as a group that was particularly vul-
nerable to employer pressure, and therefore (as found)
tended to direct much of its unlawful conduct at them.
The Company may have been inclined to give them a
double dose of rewards (as will be discussed, the Compa-
ny gave merit pay increases to the make-ready employ-
ees in early January). It is also possible that the Compa-
ny saw an opportunity to grant increases to the helpers
and newly hired porters (temporarily assigned to make
ready) who would not be amenable to "merit" increases.
However, it is unlikely that the Company would grant
wage increases and other benefits to some of its employ-
ees in order to discourage support for the Union, while
totally neglecting the line mechanics , who were the larg-
est, most important , and most influential group among
the unit employees . Indeed this is a principal weakness in
the General Counsel's theory of the case. Additionally,
the evidence indicated that until the confrontation at the
Christmas party, the Company tended to take a hard
line, whereas in January the Company took a softer ap-
proach, modifying its threatening language while holding
out an olive branch in the form of wage increases, which
were timed in order to achieve the maximum effective-
ness.
The technician of the month award was initiated by
Service Manager Tomarchio in April 1982. Tomarchio
set up a rating system whereby the service writers and
Assistant Manager Collins (and Tomarchio in the event
of a tie vote) selected the outstanding mechanic of the
month. That mechanic was' given a $200' award, which
was announced at the monthly service department meet-
ings . Second and third awards ($20 and $10, respective-
ly) were also given. From the beginning the mechanics
found the system distasteful. Evidently they regarded the
awards as divisive and smacking of favoritism. There-
fore, the recipients would share their awards with the
other mechanics . In September Tomarchio asked the me-
chanics to select the recipient. The mechanics demon-
strated their contempt for the system by selecting the
mechanic with the worst record of comebacks. Tomar-
chio told them to vote again. The result was that no
award was given in September.
In his testimony Tomarchio described the technician
of the month system, but made no reference to any tech-
nician of the year award. No mechanic testified that they
were promised a technician of the year award. Neverthe-
less General Manager Hendrick testified that at a meet-
ing in early January, he told the mechanics that Tomar-
chio made a commitment for a technician of the year
award, that the mechanics told him that they did not
care, but that he insisted he would "settle my obliga-
tion," whereupon the mechanics said they would split up
the money. The Company then distributed $700 in cash,
which was divided up among the mechanics ($53.85 per
mechanic). At the same time the Company distributed
monthly award money not only for December, but also
for September, notwithstanding that Tomarchio had de-
clined to give an award for that month.
I find that the Company's distribution of a large sum
of cash to its mechanics in early January, at the same
time that it increased the rate of compensation to its
body shop employees and granted merit increases to
most of its hourly paid employees, was part and parcel
of the same course of conduct that was designed to dis-
courage employee support for the Union. Hendrick knew
that because of the unique wage structure of the mechan-
ics, which was based on their qualifications and rates as
KOONS FORD OF ANNAPOLIS 529
set forth in the applicable manual, he could not grant
them wage increases in a conventional manner . Hendrick
also knew that the mechanics had no interest in any
"technician" award, and viewed such awards with con-
tempt. Therefore, he seized on a fictitious "technician of
the year" award, knowing that the mechanics would
simply divide the money among themselves. Hendrick
thereby found a means of appeasing the mechanics, who
were the spearhead of the union movement, by giving
them what amounted to a substantial bonus shortly
before the election. Hendrick even added to the pot by
reviving the September award, which had been rejected
by Tomarchio.
I find that the Company violated Section 8(a)(1) and
(3) of the Act by granting bonuses to its' mechanics in
the guise of a "technician of the year" award, in order to
discourage support for the Union. The Company raised
the matter of the January distribution by way of defense
to the complaint, and was 'permitted to and did present
evidence concerning the "technician of the month" and
"technician of the year" awards. Witnesses were ques-
tioned by Respondent, the General Counsel, and the ad-
ministrative law judge concerning the matter. The Janu-
ary distribution is closely related to allegations of the
complaint concerning wage increases and other compen-
sation changes at the time . I find that the matter was
fully and fairly litigated, and that it is appropriate for me
to make findings thereon. Quaker Mfg. Corp., 224 NLRB
1059, 1061 fn. 3 (1976), enfd. 574 F.2d 358 (6th Cir.
1978). I believe that I am obligated to make appropriate
findings on conduct asserted by way of defense by a re-
spondent, which conduct appears to be unlawful, regard-
less of whether the General Counsel has taken a position
on the matter. M & J Trucking, 214 NLRB 592, 597
(1974), enfd. 583 F.2d 337 (9th 0r. 1976). An administra-
tive law judge, like the Board, is not confined to consid-
er only theories advanced by the parties, but must make
an independent evaluation of the evidence.20
3. January pay increases to make-ready and parts
department employees and used car mechanics
Effective January 6, the Company gave hourly pay in-
creases to seven of its eight make-ready employees (25-
cent increases to McMullen, Lewis, Sanford Bennett, and
Snodgrass, a 30-cent increase to ' Vester, and a 50-cent in-
crease to used car_ make-ready employee Marshall).
Sharon Albert, the remaining . make-ready employee,
worked in the Porsche-Audi Division and was paid per
unit cleaned. Effective January 6 the Company also gave
hourly pay increases to 6 of its 11 parts department em-
ployees (25-cent increases to Brock, Conway, and Mitch-
ell; a 35-cent increase to Lawrence; and a 40-cent in-
crease to James Sherbert). Among the remaining parts
department employees, Arismendi was hired on Decem-
ber 1 and worked part time, McCabe began working as a
20 At the hearing the General Counsel asserted that he was not previ-
ously aware of the "mechanic of the year" award. In his brief, the Gener-
al Counsel takes the position (Br. 83) that the technician of the month
awards as administered by Tomarchio, were lawful . Obviously they
were, as the program was initiated long before the union campaign.
However, the General Counsel did, not take any position with respect to
the January distribution.
parts driver on November 2, and Cully was promoted to
counterman on October 28, when he received an hourly
wage increase plus commission . Also effective January 6,
the Company gave increases of $25 per week to two of
its three used-car mechanics (Strittmatter and Russell).
The third mechanic, Owen, was absent because of illness
during much of late 1982 and early 1983. Inventory clerk
Mary Sherbert also received an hourly raise effective
January 6 , but her increase is not alleged as discrimina-
torily motivated.
General Manager Hendrick testified in sum that the
January raises were granted pursuant to a semiannual
review policy, which he established in the summer of
1981 shortly after becoming manager. According to Hen-
drick, employees (except line mechanics) met with and
were reviewed by their supervisors in June and Decem-
ber of each year. The results of such review, including
pay increases if warranted, would be implemented the
following month (July and January, respectively). Hen-
drick testified that he wanted but did not'require written
evaluations, and that consequently some but, not all eval-
uations were written. Hendrick testified that he promised
"several of the girls upstairs," i.e., the office clericals,
that there would be a semiannual review, but that other
employees were informed of this policy either by their
supervisors or through a "service department training
policy" booklet, which was prepared by himself and
Service Manager Tomarchio during 1982 and issued in
September or October of that year. Tomarchio testified
that he gave copies of the manual to line mechanics Pier-
son, Smith and Kubert in October 1982. The manual pro-,
vided"in pertinent part that: "The Service manager must
evaluate at least semi-annually all non -productive person-
nel under his authority." Hendrick ands Tomarchio in
their testimony defined "non-productive personnel" as
those who did not generate income for the Company,
i.e., those employees who were paid on the basis, of an
hourly wage of fixed salary. Hendrick and John Koons
further testified in sum, that this semiannual review
policy was consistent with a similar policy utilized at the
other Koons dealerships.
The evidence indicated that if the Company did in fact
follow a semiannual review policy, it was honored more
in the breach than the observance. The Company pre-
sented in evidence documents that, Hendrick identified as
comprising all the written employee evaluations since he
became manager. Most of the evaluations were signed by
Tomarchio's predecessor, Bob Rose. 'Only one was
signed by Tomarchio. The remainder v' ere signed by
managers who were principally responsible for sales and
clerical personnel, e.g., John Taber and; Mario Debini.
There were no written evaluations by Hendrick, Jim
Collins, or managers Sherbert, Don, Gavin, or Christ-
mas.
Archie Brown, a long-time body shop employee who
was presented as a company witness, testified that Rose
evaluated him in 1981, but that he did not go through
any evaluation process thereafter, until June 1983, and
specifically that Betty Dorr did not evaluate him in De-
cember 1982. Jim Collins testified that he was aware of
an evaluation procedure because when he worked as a
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatcher, Rose would evaluate him at the beginning
and middle of the year . However Collins admitted that
Tomarchio (his immediate supervisor) never evaluated
him, and that he (Collins) never evaluated any employ-
ees, even in December 1982 when he was acting service
manager. According to Collins , he did not evaluate em-
ployees because he lacked the experience , although Col-
lins was obviously at least as well qualified , and probably
more so, than Irv Sherbert in this regard . Make-ready
employee Sanford and former make-ready employee
Bennett, who were 'presented as company witnesses, tes-
tified in sum that Sherbert individually evaluated them
every 6 months. Sanford further testified that on each
occasion Sherbert filled out a, form , which Sanford
signed . Their testimony was contradicted by other com-
pany witnesses , including Sherbert himself.
Sherbert testified that he never filled out an evaluation
form, that Hendrick never told him to do so, and in sum
that the only "evaluation" process that he used in De-
cember or January, consisted of calling the make-ready
employees together , telling them they were doing a fine
job but should improve their appearance , and then rec-
ommending to Hendrick that they receive raises. Sher-
bert testified that this occurred on the morning of Janu-
ary 4, immediately on his return from vacation, that
Hendrick told him to give the raises , and that he in-
formed the employees that afternoon that they would be
receiving raises effective Thursday, January 6. Donald
McMullen and Charles Vester each testified in sum that
Sherbert did not go through any evaluation process until
July 1983. Significantly , General Manager Hendrick tes-
tified that he drafted a list of proposed raises some time
between Christmas and New Year's (including the raises
that were subsequently given to the make-ready crew),
had the list typed on December 30 or 31, and presented
the list to John Koons for his approval on January 4. If
so, then it is evident from Sherbert 's testimony that Hen-
drick intended to give raises to the make-ready crew re-
gardless of any evaluation process (Hendrick testified
that Sherbert made his recommendations before leaving
for vacation on December 24. However, as indicated,
Sherbert testified otherwise).
Parts Manager Gavin similarly testified that he did not
make either oral or written performance reviews, and
did not tell employees under his supervision that there
would be a 6-month review . 21 Gavin testified that in
January he recommended Lawrence, Brock, and Howell
for raises , but did not recommend raises for any other
employees in his department . Hendrick's draft of pro-
posed raises, discussed above, indicates that Hendrick'ini-
tially intended to give raises to parts employees Conway,
Mitchell, and Sherbert but subsequently added Law-
rence, Brock, and Howell. Hendrick testified that the
three were added because Gavin was late in geting in his
recommendations . However, in light of Gavin 's testimo-
2i Parts counterman Jack Lawrence , who worked in the department
for 5 years, testified as a General Counsel witness that prior to January
1983 he was never told of any review policy. The Company did not
present any parts department employees as witnesses.
ny, it is evident that Hendrick was determined to give
raises even when not recommended by Gavin.22
The evidence discussed above indicates that former
Service Manager Rose made use of a review procedure,
but that after Rose left the practice fell into disuse. The
practice was revived only after commencement of the
present litigation, in an effort to retroactively justify the
large scale and unprecedented raises and other pay in-
creases that were granted shortly before the election.
The service department manual relied on by the Com-
pany, together with the Company 's own records , further
indicates that even to the extent that the Company effec-
tuated a policy of granting pay raises at periodic inter-
vals that policy was designed primarily for a relatively
small group of employees . There are only a few "non-
productive personnel" in the service department. Below
the managerial level they consist of clerical employees,
porters, a janitor, and mechanic's helpers . The make-
ready and used car employees fall under the sales depart-
ment. The parts employees are also in a separate depart-
ment. The evidence further indicates that the periodic
raise policy was used primarily for the benefit of the
clerical employees . As discussed , Hendrick admitted that
he told only the clerical employees about the alleged
review policy.
In early July 1981 , when Hendrick was acting as gen-
eral manager and Rose was service manager, the Compa-
ny gave raises to' 10 employees , all of whom were cleri-
cals . The Company gave no merit increases in January
1982. According to Hendrick and Koons, the Company
did not then give raises because of its poor financial con-
dition. However, the Company was also in poor financial
condition in July 1981 , shortly after Hendrick took over,
when the Company gave raises to its clerical (nonpro-
ductive) employees, notwithstanding Hendrick's pledge
to put the dealership " in order and "put a clamp on all
expenses." Because this was the first and only winter of
Hendrick's administration prior to the Union's organiza-
tional campaign, the evidence plainly falls short ' of dem-
onstrating a consistent pattern of granting merit increases
each January, much less a committment to the employees
to grant such increases.
In early July 1982 the Company granted pay increases
to 14 employees, 7 of whom were clericals. 23 The evi-
dence further indicates that the Company did not have a
policy against granting wage increases or making other
substantial changes in employee compensation at times of
the year other than January or July, if in its opinion such
changes were warranted. As discussed , in April 1982 the
Company substantially changed the rate of compensation
for its body shop personnel . Also in the spring of 1982,
shortly after Gavin became parts manager, he made a
thorough review of the compensation structure in his de-
partment, pursuant to Hendrick's instructions. As a
22 Hendrick testified that he and Gavin agreed that parts clerk Stock
was a poor performer who was already overpaid. The circumstances of
three of the other five department employees who failed to receive raises,
have previously been noted. The fifth employee, parts counterman
Marski, was by far the highest paid employee in the department.
as Make-ready employee Venter testified that he received a raise in
July 1982 . In fact, he did not.
KOONS FORD OF ANNAPOLIS
result, the Company , changed the rate of compensation
for several department employees. (The employees were
paid under a complex system, varying from one employ-
ee to another, whereby countermen and sometimes clerks
were paid an hourly wage plus percentage of gross sales
above a certain amount, while the drivers and some
clerks received an hourly wage.) Significantly , the Com-
pany did not wait until July to implement these changes.
It is evident that by reason of these changes , Gavin felt
that the January 1983 raises were not warranted from an
economic standpoint , but was pressured by Hendrick
into recommending the raises.
The case of warranty clerk Bonnie Bailey , relied on by
the Company as evidence of its alleged semiannual
review policy, is particularly illustrative . Bailey's person-
nel file contained an employee status change report, ef-
fective November 1 and signed by Tomarchio, which in-
dicated that Bailey would receive a commission of 1 per-
cent on warranty labor charges . The change was marked
as denied by Hendrick because "not semi-annual
review," and Hendrick testified that this was his reason
for disapproving the change . Hendrick testified that he
made the entry about December 1. As the Union had by
then filed its election petition, and December was osten-
sibly the time for performance reviews, the veracity of
Hendrick's entry is at best questionable . In fact, Hen-
drick simply overruled Tomarchio's promise to Bailey on
its merits. Instead on November 1 (according to the
Company's records) the Company paid Bailey $ 150 "to
correct misunderstanding" and effective December 13
(according to company records), the Company gave her
a $1-per-hour salary increase (the date of November 1 is
scratched out on her personnel folder).
If as indicated by the Company's records , the Compa-
ny changed Bailey's compensation on November 1 and
possibly again on December 13 at the latest, then there
was no reason why the Company could not have done
likewise for its body shop , parts ' department, and make-
ready employees if it were so inclined. Instead , the Com-
pany waited until shortly before , the election, and then
granted increases to,most of these employees with little
evident regard to consideration of merit.
In support of its economic defense, the Company also
adduced testimony by John Koons to the effect that he
followed a semiannual review and merit raise , policy at
other dealerships, However, this evidence simply, tended
to confirm what Koons admitted , in his ' testimony,
namely that he gave Hendrick substantial discretion in
running the Company, and that consequently Hendrick
normally set pay rates ' at Annapolis, subject to final ap-
proval by Koons . Thus, in January 1982 JKJ Chevrolet
granted raises, but the Company and Koons Chrysler-
Plymouth did not . In July 1980 the Company and JKJ
Chevrolet granted raises, but Koons Chrysler-Plymouth
did not. Therefore, it is evident that Hendrick was not
obligated to follow pay practices at other Koons dealer-
ships unless specrfical>ry instructed by Koons. Indeed,
Hendrick made clear in his testimony that it was his de-
cision to utilize the alleged semiannual review policy,
and that he was not ordered to do so by Koons.
Also in support of its economic defense, the Company
produced internal memorandum that purported to dem-
531
onstrate that the Company regularly followed a semian-
nual review policy, and continued to effectuate that
policy in December 1982 . The Company presented min-
utes of a managers' meeting on June 30 , 1981, which
listed among things to do: "Schedules girls individually
for a salary review as promised today ." The Company
also presented a memo dated June 17, 1982, from Hen-
drick to four managers, telling them to prepare their rec-
ommendations for salary increases or decreases by June
22. Hendrick did not send copies of the memo to Gavin,
Don, or Christmas. These documents, if they prove any-
thing, simply confirm that the ostensible semiannual
review policy had limited application. The Company
also produced two memoranda ostensibly prepared in
December 1982 . The first, an agenda for a managers'
meeting ` on December 1, indicated that the managers
were instructed to review all employees and make rec-
ommendations regarding raises . The second, a similar
agenda for a December 8 meeting , listed as an agenda
item "Review of semiannual _ employee evaluations."
However, the General Counsel presented in evidence a
third agenda, for a December, 22 meeting , indicating
review at that meeting of "annual" employee evaluations.
As found, no written evaluations were prepared in De-
cember or even January, and recommendations to the
extent made were submitted to Hendrick in January. It is
evident that these memoranda, which were ' prepared
after the Union filed its election petition, were simply in-
tended to falsely create the -impression that the Company
was carrying out a preordained review policy.
The employee complement in the_ used;car department
consisted of mechanics Owen , Russell, and Strittmatter
and make-ready employee Marshall . Marshall had previ-
ously received a 50-cent-per -hour merit increase in May
1982 . Russell and Strittmater were line mechanics who
were transferred into the used-car department in Septem-
ber 1982 on a temporary basis because of Owen's 'illness.
They were placed on a hourly wage ($6.25, or $250 per
week). Marshall, who was presented as a company wit-
ness, testified that in late December, General Sales Man-
ager Taber told him that he would probably get a raise if
he could put in more timie. Marshall was suffering and
continued to suffer from asthma, and his attendance
never improved. Nevertheless , without waiting to see if
his attendance improved, the Company, through Used-
Car Manager Christmas, informed Marshall on'January 4
or 5 that he"was receiving a raise, adding the admonition
that he should put in more time . Marshall received a 50-
cent-per-hour increase, one of the largest increases given
by the Company at that time.
Mechanic ,, Russell, who was presented as a General
Counsel' witness, testified that on the morning of the
election Christmas told him that he would like to give
him a raise but could not "because of the union stuff that
was going on." Russell complained that he heard that the
make=ready employees had received raises. Russell testi-
fied that that afternoon, Christmas told him that the
Company's attorney advised that they could give sched-
uled raises, and that Russell would get a '$25 per week
raise. Russell Strittmatter and Marshall all received raises
effective January 6. Christmas , in his testimony, denied
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he discussed the raise with Russell on election day.
Christmas testified that in December he recommended to
Hendrick that the three employees receive raises because
he felt they deserved them, but that Hendrick was
unsure of what to do because of the pending election.
Christmas further testified that on January 5 he again
asked Hendrick about the raises, and that Hendrick, after
apparently making a telephone call, told Christmas to
"give them the raises and do the performance reviews."
Christmas immediately informed the employees that they
were receiving raises.
Marshall, in his testimony, inferentially corroborated
Christmas' testimony in one respect . Marshall testified
that on the day he learned of his raise, Russell indicated
to him that he also received a raise. However, Christmas'
testimony was inconsistent with the Company 's answer
to the complaint and with the testimony of Hendrick and
Marshall in other respects. The Company's answer stated
that the raises to Strittmatter and Russell "were contem-
plated at the time of reassignment as necessary in these
`special cases' to ease the financial impact of their classi-
fication change." If so, then there was no reason why
they could not have received the raises long before Janu-
ary, since, according to Hendrick and Koons, a change
in job duties does not come under the alleged semiannual
review policy, and therefore compensatory raises may be
and were in fact granted at any time.
Moreover, as discussed, Hendrick allegedly made his
decision to give the raises in December , subject only to
Koons' final approval, which was given on January 4
when Koons visited the dealership. If the Company
needed legal advice before granting raises, then it is un-
likely that it would have waited until January 4 or 5 to
obtain such advice . Additionally, as discussed, Manager
Taber, who was Christmas' superior, informed Marshall
in late December that he would probably not receive a
raise until he improved his attendance . I do not credit
Russell's testimony concerning his alleged conversation
with Christmas on election day. I find that all the em-
ployees received their raises at the same time . However I
find that but for the pending election, they would not
have received those raises.
In sum, the Company on January 6 granted pay in-
creases to 16 unit employees , increased the rate of pay of
9 other unit employees, and granted bonuses to 13 line
mechanics. These changes effectively and immediately
increased the compensation of 38 of 66 unit employees-"'
There is direct evidence, including company admissions,
that the rate increase granted to the body shop employ-
ees was a last minute effort by the Company to redress
longstanding employee grievances in order to.discourage
support for the Union. The evidence adduced in this pro-
ceeding further demonstrates that the Company did not
24 The circumstances of some of the unit employees who did not re-
ceive raises has previously been discussed . Among the remaining employ-
ees, the porters and two clerical employees were recently hired, the help-
ers were paid by arrangement with their respective mechanics, and the
janitor was a part time , semiretired employee. The remaining unit em-
ployees (service dispatcher, service writers, and Porsche-Audi mechanics)
were paid by salary plus commission or flat rate arrangements, which
placed them among the Company's highest paid employees . In these cir-
cumstances, the fact that these employees did not receive increases in
January 1983 is not significant.
have a systematic, general , semiannual review policy;
that the Company's actions in January were unusual and
unprecedented; .that many employees probably would not
have received increases but for the Union's organization-
al campaign ; and that even to the extent that some em-
ployees might have received raises, the timing of these
increases was carefully calculated to achieve the maxi-
mum propaganda values in the election campaign. I find
that in January, the Company granted pay increases, in-
creases in wage , rates, and bonuses to its employees in
order to discourage support for the Union, and thereby
violated Section 8(a)(1) and (3) of the Act.
C. The Election, the Propriety of a Conventional
Cease-and-Desist Order, and the Propriety of a
Bargaining Order
The Union's objections to the conduct of the election,
which are encompassed by certain allegations of the
complaint, are meritorious to the extent that I have
found that the Company engaged in unfair labor practice
conduct during the critical period between the filing of
the election petition on November 24 and the Board-con-
ducted election on January 12. Therefore" I am recom-
mending that Union Objections 1, 2, 3, and 4 (covering
pay increases in January) and 9, 11, 12, 13, and 15
(threats of reprisal) be sustained . For the reasons previ-
ously discussed, I am recommending that Objections 6
(bonuses to- make-ready workers) and 10 (threat to fire
well-liked supervisors) be overruled. I further find that
the Company unlawfully interfered with the conduct of
the election by conduct alleged in the complaint and
found unlawful but not specifically alleged in the objec-
tions (threats, interrogation and solicitation) and conduct
found unlawful but not alleged in either the complaint or
the objections (bonuses to line mechanics). See American
Safety Equipment Corp., 234 NLRB 501 (1978), revd. on
other grounds 643 F.2d 693 (10th Cir. 1981). In Enola
Super,Thrift, 233 NLRB 409 (1977), the Board held:
... Our normal policy is to direct a new elec-
tion whenever an unfair labor practice occurs
during the critical period since "[c]onduct violative
of Section 8(a)(1) is, a fortiori, conduct which inter-
feres with the exercise of a free and untrammeled
choice in an election." Dal-Tex Optical Co:, 137
NLRB 1782, 1786-1787 (1962). The only recog-
nized exception to this policy is where the viola-
tions ' are such that it is virtually impossible to con-
clude that they could have affected the results of
the election.
Applying the foregoing standard to the election in the
present case, the election must be set aside by reason of
the Company's unlawful conduct.
I further find that a cease-and-desist order is warranted
with respect to all violations found herein` including
threats of plant closure, discharge, and refusal to bargain
in good faith. In Passavant Memorial Area Hospital, 237
NLRB 138 (1978), the Board held as follows:
It is settled that under certain circumstances an em-
ployee may relieve himself of liability for unlawful
KOONS FORD OF ANNAPOLIS
conduct by repudiating the conduct. To be effec-
tive, however, such repudiation must be "timely,"
"unambiguous," "specific in nature to the coercive
conduct,", and "free from other proscribed illegal
conduct." Douglas Division, The Scott & Fetzer Com-
pany, 228 NLRB 1016 (1977), and cases cited there-
in aV 1024. Furthermore, there must be adequate
publication of the repudiation to the employees in-
volved and there must be no proscribed conduct on
the employer's part after the publication. Pope
Maintenance Corporation, 22$ NLRB 326, 340
(1971). And finally, the Board has pointed out that
such repudiation or disavowal of coercive conduct
should give assurances to employees that in the
future their employer will not interfere with the ex-
ercise of their Section 7 rights. See Fashion Fair,
Ina, et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, 150 NLRB 1702, 1717 (1965).
John Koons' postparty apology to employees Kubert and
Pierson, and the speeches of Hendrick and Koons on
January 5 and 10, respectively, in which they asserted
that the Company would not close but would bargain in
good faith, fail to meet the above standard. Koons said
nothing to Donald West, who heard Koons tell Pierson
that he put his job on the line, nor to any other employ-
ees who may have heard about the incident at the
Christmas party. Koons waited until over 3 weeks after
the party, and even longer after Tomarchio had made a
similar threat, to assert that he would not close the deal-
ership. In the meantime, the Company permitted the
impact of these and other threats to settle in the minds of
the employees. When Koons, finally got around , to
making this assertion, he referred only to alleged rumors
of closure, without acknowledging that he personally
was responsible for such rumors.
Moreover, the statements of Hendrick and Koons
were accompanied by and occurred in the context of
other statements and actions, which for all practical pur-
poses nullified their promise to bargain in good faith.
Thus, in the same speech that Hendrick made this prom-
ise, he threatened the employees with loss of various
benefits if the Union came in. At the very time they
made these' promises, they were in the process of grant-
ing substantial wage ,increases in order to discourage em-
ployee support for the Union„ Neither Koons ' nor Hen-
drick made any reference to the unlawful actions of To-
marchio and Sherbert. Therefore, a conventional cease-
and-desist order is warranted. Passavant, supra; see also
Safeway Stores, 266 NLRB 1124, 1125 (1983).
The more difficult question is whether by reason of
the Company's unlawful conduct, I should find that the
Company unlawfully failed or refused to recognize and
bargain with the Union, and therefore, that a remedial
bargaining order is warranted. The applicable standard is
set forth in the landmark case of 11^RB v. Gissel Packing
Co., 395 U.S. 575, 613-615 (1969). In Gissel the Supreme
Court held as follows:
Before considering whether the bargaining orders
were appropriately entered in these cases, we
should summarize the factors that go into such ter-
533
ipination. Despite our reversal of the Fourth Circuit
below in Nos. 573 and 691, on all major issues, the
actual area of disagreement between our position
here and that of the Fourth Circuit is not large as a
practical matter. While refusing to validate the gen-
eral use of a bargaining order in reliance on cards,
the Fourth Circuit nevertheless left open the possi-
bility of imposing a bargaining order, without need
of inquiry into majority status on the basis of cards
or otherwise, in "exceptional" cases marked 'by
"outrageous" and "pervasive" unfair labor prac-
tices. Such an order would be an appropriate
remedy for those practices, the court noted, if they
are of "such a nature that their ` coercive effects
cannot be eliminated by the application of tradition-
al remedies, with the result that a fair and reliable
election 'cannot be had." NLRB v. Logan Packing
Co., 386 F.2d 562, 570 (CA. 4th Cir. 1967); see also
NLRB v. Heck's Inc., 398 F.2d 377, 388. The Board
itself, we should add, has long had a similar policy
of issuing a bargaining order, in the absence of a §
8(ax5) violation or even a bargaining demand, when
that was the' only available, effective remedy for
substantial unfair labor practices. See e.g., United
Steelworkers 'of America v. NLRB., 126
U.S.App.D.C. 215, 376 F.2d 770 (1967); J. C. Penny
Co., Inc., v. NLRB., 384 F.2d 479, 485-486 (C.A.
10th Cir. 1967).
The only effect of our holding here is to approve
the Board's use of the bargaining order in less ex-
traordinary cases marked by less pervasive practices
which nonetheless still have the tendency to under-
mine majority strength and impede the election
processes. The Board's authority to issue such an
order on a lesser showing of employer misconduct
is appropriate, we should reemphasize, where there
is also a showing that at one point the union had a
majority; in such a case, of course, effectuating as-
certainable employee free choice,become's as impor-
tant a goal as deterring employer misbehavior. In
fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration
the extensiveness of an' employer's unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order,
then such an order,should issue ....
We emphasize that under the Board's remedial
power there is still a third category of minor or less
extensive, unfair labor practices, which, because of
their minimal impact on the election machinery,
will not sustain a bargaining order. There is, the
Board says, no per se rule that the commission of
any unfair practice will automatically result in a §
8(a)(5) violation and the issuance of an order to bar-
gain. See Aaron Brothers, supra.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If John Koons had not backed away from his prior
threat, this case would plainly constitute a Class I Gissel
case, i.e., an exceptional case marked by outrageous and
persuasive unfair labor practices , which without further
analysis of the factual context, would warrant issuance of
a remedial bargaining order . See Gissel, 395 U.S. at 587-
589, 615 (the Sinclair case). Although Koon's disclaimers
were inadequate to preclude a conventional cease and
desist order, they must be considered as part of the over-
all factual context in determining the propriety of a bar-
gaining order . On consideration of that context, I ford
that the Company has engaged in a pattern of unreme-
died unfair labor practices that effectively destroyed the
conditions for a free and fair election, that those condi-
tions probably cannot and will not be restored to any
time in the foreseeable future, and that therefore a bar-
gaining order is warranted , based on the Union's majori-
ty status as of November 23 and 24, when it requested
recognition and petitioned for a Board-conducted elec-
tion.
The present case presents an almost textbook example
of the "fist inside the velvet glove." NLRB v. Exchange
Parts, 375 U.S. 405, 409 (1964). The Company through
its supervisory personnel repeatedly hammered home the
theme that unionization would per se result in the loss of
a wide range of privileges and benefits that were impor-
tant to the employees, e.g., job security, employer assist-
ance, access to management , hobby night, working on
cars outside the job, parts discount, opportunity for
schooling advancement, drinking beer after work, and
the annual Christmas party. These threats for all practi-
cal purposes nullified the Company's belated assertion
that it would bargain in good faith . Moreover, the em-
ployees were well aware that retention of some of these
privileges and benefits were dependent on employer
good will or other subjective or variable factors within
the Company's control, e.g., the extent to which the
service manager might grant more time to a mechanic on
a flat rate job. Therefore , it is unlikely that the posting of
a Board notice (and that essentially is all that a conven-
tional Board order could provide in this case) would
offer much assurance to the employees . See E S. Merri-
man & Sons, 219 NLRB 972 (1975), enfd. mem 569 F.2d
351 (9th Cir. 1978).25
Most serious, however , were the pay increases granted
shortly before the election. In these cases, the Board
does not punish the employees by depriving them of
such benefits . Essentially all the Board can do is to tell
the employer not to do it again . This would be a case of
locking the barn door after the horses were stolen. By its
unlawful actions (most conspicuously in the situation of
the body shop employees) the Company at the very last
minute acted to redress employee grievances that gave
rise to the organizational campaign , and granted pay in-
creases that were designed to discourage support for the
Union.26 The impact of such actions, coupled with the
86 Even a subsequent apology could not reasonably be expected to
wipe out an implied threat of discharge from the Company's president.
As Pierson put it on cross-examination : "Its going to stick in my mind for
a long time."
86 As indicated, the vote in the election was 27 to 39 The votes of the
nine body shop employees alone might well have been decisive.
Company's unlawful threats, cannot easily be forgotten.
Therefore the Board, with judicial approval, has issued
remedial bargaining orders in cases involving comparable
or even less serious employer misconduct . See Tipton
Electric Co. v. NLRB., 621 F.2d 890, 898-899 (8th Cir.
1980) (threats of loss of access to management and a har-
monious working relationship, coupled with promised
improvements in pay policy that were granted shortly
after-the election); NLRB v. Colonial Knitting Corp., 464
F.2d 949, 952 (3d Cir. 1972) (interrogation of an employ-
ee and pay raises granted on the day before the election);
Keystone Pretzel Bakery, 696 F.2d 257, 263-265 (3d Cir.
1982) (authorizing employee to conduct surveillance, in-
terrogation, solicitation and promise to resolve griev-
ances and, grant benefits, and polling ,employees); Gor-
donsville Industries, supra, 258 NLRB at 603 (promise and
grant of general wage increases deemed sufficient to
warrant bargaining order even without consideration of
other unfair labor practices); and Michigan Products, 236
NLRB 1143, 1147 (1978) (promises of wage increases
and benefits and to deal directly with employee commit-
tee).
I further fmd that neither the passage of time nor em-
ployee turnover is likely to result in conditions that
would allow uncoerced employee choice in a free and
fair election. I have already discussed some of the rea-
sons for this fording. The Company presented evidence
that as of the close of the hearing (October 18, 1983), 24
of the 66 employees in the unit as of January 10 were no
longer employed by the Company; and one was no
longer in the unit. The evidence indicates that there is
substantial turnover among the Company's younger, un-
skilled employees, e.g., porters, helpers, and make-ready
employees . However, the evidence also indicates that
there is much greater stability at higher levels of pro-
gression, particularly among the line mechanics and
those on commission . Thus, among the employees who
were still in the unit as of the close of the hearing, Smith
was employed by the Company for 7 years, Kubert for 9
years, Cully for 4 years, Cole for 7 years, Felesky for 15
years, Pierson for 15 years, Lawrence for 5 years, Archie
Brown for 11 years, Henry Brown for 15 years, George
Marski for 11 years, Russell for 5 years, Strittmatter for
38 years, and John Chambers for 23 years. These em-
ployees included the principal union adherents and em-
ployees who were direct targets of the Company's unfair
labor practices. It is evident that it will be a long time
before the 1982-1983 election campaign is forgotten at
the Company and before the effects of the Company's
unlawful conduct can be dissipated. See E.S. Merriman &
Sons, supra.
I ford that the Company violated Section 8(a)(5) and
(1) of the Act by failing and refusing to recognize and
bargain with the Union on and after November 24, 1982,
as the exclusive representative of its employees in the ap-
propriate unit. It follows that the Company further vio-
lated Section 8(a)(5) and (1 ) by granting bonuses to its
make-ready workers in December and by granting wage
increases, a higher wage rate, and unscheduled bonuses
to unit employees in January, without giving the Union
KOONS FORD OF ANNAPOLIS
notice or an opportunity to bargain concerning such mat-
ters. Trading Port, 219 NLRB 298, 302 (1975).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act,
3. All full time and regular part time Service Depart-
ment employees, including 'mechanics , body and paint
shop workers, parts department employees , drivers, help-
ers, make-ready employees, porters, dispatchers, and jani-
tors employed at Respondent 's Annapolis, Maryland, fa-
cility but excluding sales persons, office clerical employ-
ees, guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. By discriminatorily granting wage increases , higher
wage rates, and bonuses to its employees in order to dis-
courage support for' the Union, the Company has en-
gaged and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. By granting such increases; by threatening its em-
ployees with plant closure , loss of employment, and
other reprisals if they choose the Union as their bargain-
ing representative; by coercively interrogating its em-
ployees concerning their union activity and that of their
fellow employees, and by soliciting employees to engage
in antiunion activity, the Company has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, and thereby
has violated and is violating Section 8(a)(1) of the Act.
6. Union Objections, 1, 2, 3, 4, 9, 11, 12, 13, and 15 in
Case 5-RC-11899 have been sustained by the evidence,
and the Company thereby interfered with the , Board
election on January 12, 1983. Union Objections 6 and 10
are overruled.
7. By the conduct set forth in paragraphs 4 and 5
above, the Company interfered with the employees' free-
dom of choice in the election, and precluded any reason-
able possibility of a fair and uncoerced rerun election.
8, Since November 24, 1982, the Union has been and
is, the exclusive collective -bargaining representative of
the Company's employees in the unit described above.
'9. By failing and, refusing since November 24, 1982, to
recognize and bargain, with the Union as the exclusive
bargaining representative of the employees in the above
appropriate unit, and by unilaterally changing the wages
of its employees without giving the Union notice or an
opportunity to bargain concerning such matters, the
Company has engaged in and is engaging in unfair labor
practices within, the meaning of Section 8(aX5) and (1) of
the Act.
10. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1), (3), and (5) of the Act, I shall
recommend that it be required to cease and desist there-
from and from in any like or related manner infringing
535
on' the rights guaranteed its employees,in Section 7 of
the Act. As heretofore, found, affirmative relief is also
appropriate here. I shall direct the Company to recog-
nize and to bargain collectively, upon request, with the
Union as the exclusive bargaining representative of the
employees in the unit found appropriate herein, and to
embody any understanding reached in a signed agree-
ment. The remedial order will also include the custom-
ary provisions relating to the posting of notices, and re-
lated matters.
Finally, I shall recommend that the election in Case 5-
RC-1 1899 be set aside and, in view of the bargaining
order entered herein, that Case 5-RC-1,1899 be dis-
missed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
ORDER
The Respondent, Koons Ford of Annapolis, Inc., An-
napolis, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and-desist from
(a) Threatening its employees with plant closure; loss
of jobs, job security, or opportunity for advancement;
loss of access to or help from management, loss of privi-
leges or benefits of employment; more onerous working
conditions, futile contract negotiations; or other reprisals,
if they designate, select, or support District 65, United
Automobile, Aerospace and Agricultural Implement
Workers of America or any other 'labor organization as
their bargaining representative.
(b) Coercively interrogating employees about their
union attitude or activities or those of their fellow em-
ployees.
(c) Soliciting employees to engage in antiunion activi-
ty.
(d) Granting wage increases or other improvements in
terms and conditions of employment, or redressing griev-
ances, in order to discourage support for the Union; pro-
vided, however, that nothing herein shall be construed as
requiring Respondent to vary or abandon any economic
benefit or any term or condition of employment that it
has heretofore established.
(e) Refusing to recognize or bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of its employees in the above described appro-
priate unit.
(f) Unilaterally changing wages or other terms or con-
ditions of employment without prior notice to the Union
or without affording the Union an opportunity to negoti-
ate and bargain concerning such matters.
(g) In any like or related manner interfering with, re-,
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
27 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize, and on request, bargain collectively in
good faith with the Union as the exclusive bargaining
representative of the employees in the unit described
above, and embody in a signed agreement any under-
standing reached.
(b) Post at its office and place of business in Annap-
olis, Maryland, copies of the attached notice marked
"Appendix ."28 Copies of the notice on forms provided
28 Ifthis Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
by the Regional Director for Region 5, after being
signed by the Respondent 's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER recommended that the election in Case
5-RC-11899 be set aside and that the proceeding be dis-
missed.