Luke Johnson Ford, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1961

133 N.L.R.B. 32 (N.L.R.B. 1961)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it will be recommended that the Respondents jointly and severally refund to former
and present employees of the Respondent Company moneys so collected. The Re-
spondents ' liability shall be limited to moneys collected during the period beginning
6 months before the filing and service on them of the charges herein.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 22, Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By being parties to and by maintaining an unlawful hiring agreement and ar-
rangement the Respondent Company and the Respondent Union, respectively, have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(1), (2 ), and (3 ) and Section 8(b)(1) (A) and (2 ) of the Act.
3. By denying Campbell his rightful employment from April 5 until early June
1960, as a result of the operation of the unlawful hiring arrangement referred to
above, the Respondent Company and the Respondent Union , respectively , engaged
in unfair labor practices within the meaning of Section 8(a)(1), (2 ), and (3) and
Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
Jack Roach Broadway , Inc., doing business as Luke Johnson
Ford , Inc. and Retail Automobile Salesmen , Local Union No.
501, affiliated with Retail Clerks International Association,
AFL-CIO. Case No. 23-CA-1152. September 7, 1961
DECISION AND ORDER
On June 23, 1961, Trial Examiner Owsley Nose issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provision of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, the Intermediate Report, the exceptions and the
brief, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
133 NLRB No 4
LUKE JOHNSON FORD, INC. 33
Relations Board hereby orders that Respondent, Jack Roach Broad-
way, Inc., doing business as Luke Johnson Ford, Inc., its officers,
agents , successors , and assigns, shall :
1. Cease and desist from :
(a) Coercively questioning employees about their union sympathies
and activities, threatening employees with reprisals because of such
activities, or in any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Retail Auto-
mobile Salesmen, Local Union No. 501, affiliated with Retail Clerks
International Association, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its establishment copies of the notice attached to the
Intermediate Report marked "Appendix." 1 Copies of said notice, to
be furnished by the Regional Director for the Twenty-third Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the receipt of this Order, what steps it
has taken to comply herewith.
i This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, in which all parties were represented , was heard before me in
Houston , Texas, on May 1, 1961 , upon the complaint of the General Counsel and an-
swer of Jack Roach Broadway , Inc., doing business as Luke Johnson Ford , Inc., herein
referred to as the Respondent . The General Counsel and the Respondent have filed
helpful briefs which have been fully considered.
In issue in this proceeding is the question whether , in the context of events in the
case, the Respondent has engaged in interference , restraint , and coercion in violation
of Section 8(a) (1) of the Act by reason of certain statements made and questions
asked by its supervisory officials during a union organizational campaign.
624067-62-vol. 133- 4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and my observations of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
The Respondent owns and operates a Ford agency at Houston , Texas, where it is
.engaged in the sale and servicing of new and used automobiles and trucks. In the
course of its business the Respondent obtains from out-of -State sources motor ve-
hicles, parts, and other materials valued in excess of $25,000 a year. Respondent
annually sells vehicles and performs related services, the gross value of which ex-
ceeds $500 ,000. I find that the Respondent is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Automobile Salesmen , Local Union No. 501, affiliated with Retail Clerks
International Association, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In the latter part of November 1960 several salesmen employed in automobile
.agencies in Houston , Texas , requested information of Donald J . Hofer, a special
representative of Retail Clerks International Association, concerning the formation
of a citywide union of automobile salesmen. After receiving these requests, Hofer
.arranged for meetings of salesmen employed in the various agencies in Houston.
The first meeting was held on December 6. At the second meeting on December 7,
temporary officers were elected. After the December 7 meeting, the temporary
.officers publicized over the radio the organizing campaign which was then in prog-
ress. At a meeting on December 9 a formal application for a local union charter was
.completed and sent to the Retail Clerks International Association. Meetings of
salesmen from the various agencies were also held on December 12, 14, 16, 19,
and 27, 1960, and January 4, 1961. At the December 19 meeting the charter for
Local Union No. 501, which had just been received from the International, was
shown to the assembled salesmen.
Several of the Respondent's employees, including Jerry Killen and Bill Story,
attended the December 12 union meeting. The next day Al Fox, the Respondent's
.assistant new car sales manager, summoned Story to his office. Glancing at a piece
.of paper in his hand, Fox stated that Story, Killen, and two other employees whom he
named, "were at the union meeting last night, is that correct?" When Story re-
plied, "Well, you have a list. . . . You probably know who was there better than I
ado," Fox asked "if there were any more present." Story refused to comment further.
Later on in December, John S. Osborne, the Respondent's general manager, com-
anented on Killen's attendance at a union meeting. He added on this occasion that
"the dealers had tape recordings of everything that was said at the meetings and that is
the way he knew that we were down there." Earlier, Osborne had asked Killen
whether he had joined the Union. When Killen informed him that he had not as
yet signed up in the Union, Osborne remarked that "it wouldn't be any good unless
it went statewide and it would be the best thing if [he] just forgot about it." I
Osborne at one time or another questioned most of the employees about their union
membership, as he testified.
On December 16 or 17, Luke Johnson, the president of the Respondent addressed
the salesmen at one of the morning sales meetings. Johnson did not regularly attend
the sales meetings. Among other things, Johnson referred to the union organizing
.campaign, stating "I understand we have a union steward here at Luke Johnson's
now." Johnson went on to say that he did not believe that the Union would help
the men, that if they had any problems they should come to him, and that the Re-
spondent "didn't need someone coming in and trying to tell us how to run our
organization." 2 Johnson also urged at this time that the Respondent had one of the
best pay plans and demonstrator arrangements of any dealer in Houston. Johnson
also mentioned in the course of his talk the fact that the business had lost money in
I Osborne had previously mentioned to Killen the fact that the men were attempting to
organize a union, and asserted that there was nothing to it, that most unions were run
,by "thugs" anyway.
9 General Manager Osborne, as he testified, at a subsequent sales meeting similarly told
-the men that "no one was going to come out and tell me how to run my organization "
LUKE JOHNSON FORD, INC. 35
1960 and asserted that unless the Union was successful in organizing the dealers on a
Statewide basis, it would be "detrimental" in that the unorganized dealers outside of
Houston could undersell the Houston dealers.
Shortly before Christmas 1960, Assistant New Car Sales Manager Fox and his
superior, Paul Prater, the Respondent's new car sales manager, engaged in a con-
versation concerning the Union on the showroom floor in the presence of several of
the Respondent's salesmen. According to Jerry Killen, the following colloquy took
place: Prater stated that "there's ways and means of getting rid of a lot of these
guys that's joining this union." Fox thereupon inquired "What do you mean by
that?" Prater replied, "Well, . . . on car appraisals and calling the deals in to the
finance company and getting the cars financed and things like that . . . we can sure
hurt them and make them leave." 3
Prater's version of the conversation on this occasion is as follows: "I didn't
phrase it just that way.. . I just said that if the union . told us how much
commission to pay . . . that there would be ways because the union couldn't know
how a deal was handled because they couldn't have a representative in every dealer-
ship in town. ...
Weighing Killen's specific and detailed account of the conversation on this occasion
against Prater's version, which omits any reference to "getting rid of" union sup-
porters, I find Killen's account the more plausible. Prater's version is so generalized
as to convey little meaning. Accordingly, Prater must have said more on this
occasion than he was willing to admit. Although the Respondent urges that Killen
was so prejudiced against it that his testimony is entitled to little credit, I find that
the record does not bear out its argument in this regard. Under all the circum-
stances, including the fact that Killen's version is in accord with the logic of the
situation, I credit Killen and find that Prater stated on this occasion in effect that the
Respondent, by juggling the figures as to the value of trade-ins and as to the cost of
financing, could adversely affect the earnings of the union supporters, and could
thereby force them to quit. Such a statement has clearly coercive implications and
is therefore violative of Section 8(a) (1) of the Act .4
Also violative of the Act under the circumstances of this case is the questioning
of employees concerning their union membership and activities in which Assistant
Sales Manager Fox and General Manager Osborne engaged. The latter, as he ad-
mitted, questioned most of the salesmen about their union membership. In deter-
mining the legal significance of such questioning, the entire setting in which it took
place must be taken into consideration. The Respondent, from the time it first
learned of the union campaign took pains to impress upon the union sympathizers
that it was aware of their union activities. The Respondent's president and its
general manager freely expressed their disapproval of the union movement. And
later on the Respondent's new car sales manager coercively warned several salesmen
that there were ways of getting rid of the union sympathizers. In such a setting,
in my opinion, the Respondent's questioning would reasonably be regarded by the
employees as efforts to remind them of its opposition to the union movement, opposi-
tion which was manifested on one occasion in the form of a veiled threat to discharge
union sympathizers. In these circumstances, I find, as indicated above, that General
Manager Osborne's and Assistant New Car Sales Manager Fox's questioning of
employees concerning their union membership and activities constituted interference,
restraint, and coercion in violation of Section 8 (a) (1) of the Act.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby makes the following:
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning their union sympathies and
activities, and by threatening employees with reprisals because of such activities,
Jack Roach Broadway, Inc., doing business as Luke Johnson Ford, Inc., has inter-
fered with, restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
About the middle of December the Respondent instituted the practice of having the
sales managers make all the calls to the finance companies. Previously the salesmen
themselves had contacted the finance companies and were themselves directly informed of
any financing difficulties.
4 While the Respondent suggests that Prater was not speaking as a sales manager on
this occasion, I find no basis either in fact or in law for not holding the Respondent
responsible for Prater 's conduct above set forth.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a recommended order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT coercively question employees about their union sympathies
and activities, threaten employees with reprisals because of such activities, or in
any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the right of self-organization , to form labor organizations, to
join or assist Retail Automobile Salesmen , Local Union No. 501 , affiliated with
Retail Clerks International Association , AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
All our employees are free to become, or remain , or to refrain from becoming or
remaining , members of Retail Automobile Salesmen , Local Union No. 501 , affiliated
with Retail Clerks International Association , AFL-CIO, or any other labor
organization.
JACK ROACH BROADWAY , INC., DOING BUSINESS As
LUKE JOHNSON FORD, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Wallace Shops, Inc.' and Retail Clerks International Associa-
tion, AFL-CIO, Local No. 1529, Petitioner . Case No. 26-RC-
1636. September 7, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William R. Magruder, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer moved to dismiss the petition on the ground that
its annual gross volume of business does not meet the Board's juris-
dictional standard for retail establishments. The Employer, a Ten-
nessee corporation wholly owned by Darling Shops Corporation, is
engaged in selling at retail ladies' and children's ready-to-wear apparel
and accessories in Memphis, Tennessee, and has been in operation
since February 25, 1961. From then to the date of the hearing, June
1 The name of the Employer appears as corrected at the hearing.
133 NLRB No. 16.