M. J. McCarthy Motor Sales Co.

National Labor Relations Board - Board Decisions

Feb 5, 1962

135 N.L.R.B. 828 (N.L.R.B. 1962)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS of LAW
1. International Union • of Electrical, Radio and Machine Workers, AFL--CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employees, thereby dis-
couraging membership in the above-named labor organization, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. All production and maintenance employees of the Respondent employed at its
Cambridge and Somerville plants , exclusive of office clerical employees, guards, pro-
fessional employees, salesmen , and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the m eaning of
Section 9 (b) of the Act.
4. At all times since August 19, 1960, the above-named labor organization has
been the exclusive representative of all employees in the aforesaid unit for the pur-
poses of collective bargaining in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment, by virtue of Section 9(a) of the Act.
5. By refusing, on April 10, 1961, and at all times thereafter, to bargain collec-
tively with the aforesaid labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
M. J. McCarthy Motor Sales Co. and International Vehicle
Salesmen 's Union of America (Independent ). Cases Nos. 13-
CA-4198,13-CA-4198-2,13-CA-4198-3,13-CA-4262, and 13-CA-
4305. February 5, 1962
DECISION AND ORDER
On November 3, 1961, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is 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 General Counsel filed a brief in sup-
port of the Intermediate Report and the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, the briefs, and the entire record in these
consolidated cases, and adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
1 The Trial Examiner at one place In the Intermediate Report inadvertently referred to
Used Car Sales Manager Frank Urban as the "Used Car Salesman." However, it is
135 NLRB No. 84.
M. J. McCARTHY MOTOR SALES CO. 829
ORDER
Upon the entire record in these consolidated cases, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
M. J. McCarthy Motor Sales Co., Chicago, Illinois, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Vehicle Salesmen's
Union of America (Independent) by discharging or in any other man-
ner discriminating against employees in regard to their hire or tenure
of employment, or any term or condition of employment.
(b) Unlawfully interrogating employees concerning their union
membership and activities, threatening them with reprisals for their
failure to withdraw from the Union, promising and granting benefits
to them for their refusal or failure to join the Union or their with-
drawal from it, and withdrawing privileges from those employees
remaining in the Union.
(c) Refusing to bargain collectively with International Vehicle
Salesmen's Union of America (Independent) as the exclusive repre-
sentative of its employees in the following appropriate unit : All car
salesmen employed by the Respondent at 6515 South Western Ave.,
Chicago 36, Illinois, but excluding all supervisors as defined in the
Act, office employees, and all other employees.
(d) in any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Merlin Griffith, James Marzano, Leonard Pechtold, and
Walter Zion immediate and full reinstatement to their former or sub-
stantially equivalent positions and make each of them whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
clear that prior to the time of the events herein he had been advanced to the position of
Used Car Sales Manager. Further, the Trial Examiner states that Leonard Pechtold
was employed "as used car salesman and sales manager." It is clear from the record
that Pechtold had held the position of sales manager previously but at all times pertinent
herein was employed as a salesman.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Upon request, bargain collectively with International Vehicle
Salesmen's Union of America (Independent) as the exclusive repre-
sentative of all Respondent's employees in the unit found appropriate
and, if an understanding is reached, embody such understanding in a
signed agreement.
(d). Post at its salesroom in Chicago, Illinois, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
.1 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 "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the 'policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in International Vehicle
Salesmen's Union of America (Independent) by discriminating in
regard to the hire or tenure of employment or any term or con-
dition of employment of any of our employees.
WE WILL NOT unlawfully interrogate our employees, threaten
them with economic reprisals or promise them economic benefits,
or deprive them of established working privileges in connection
with their right to engage in concerted activities as provided in the
above Act, or encourage them to refrain from such activities.
WE WILL bargain collectively upon request with International
,Vehicle Salesmen's Union of America (Independent), as the ex-
elusive representative of all our car salesmen employed at 6515
South Western Avenue, Chicago 36, Illinois, but excluding all
supervisors as defined by the National Labor Relations Act, office
employees, and all other employees. `
M. J. McCARTHY MOTOR SALES CO. 831
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
WE WILL offer Merlin Griffith, James Marzano, Leonard Pecht-
old, and Walter Zion immediate and full reinstatement to their
former or substantially similar positions, without prejudice to
their seniority and other rights and privileges, and make them
whole for any loss of pay they may have suffered as a result of the
discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as amended.
M. J. MCCARTHY MOTOR SALES CO.,
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.
Employees may communicate directly with the Board's Regional
Office, Midland Bldg., 176 West Adams St., Chicago, Illinois (Tele-
phone Central 6-9660) if they have any question concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE .
Upon charges and amended charges filed between April 20 and June 16, 1961,
by International Vehicle Salesmen's Union of America (Independent), hereinafter
referred to as the Union, the Regional Director for the Thirteenth Region of the
National Labor Relations Board, herein referred to as the Board, issued a consoli-
dated complaint on June 9, 1961, and an amendment thereto on June 29, 1961, against
M. J. McCarthy Motor Sales Co, Respondent herein, alleging violations of Section
8(a) (1), (3), and (5) of the National Labor Relations Act, as amended (20 U S.C.,
Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while
admitting certain allegations of the complaint, denied the commission of any unfair
labor practice.
Pursuant to notice a hearing was held before me at Chicago, Illinois, on July 11,
12, and 13, 1961. All parties were represented at the hearing and were afforded full
opportunity to be heard, to introduce relevant evidence, to present oral argument,
and to file briefs with me. Briefs were filed by the Respondent and the General
Counsel on August 28, 1961.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record and the briefs of the parties and upon my
observations of the witnesses,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
M. J. McCarthy Motor Sales Co., Respondent herein, is an Illinois corporation
with principal office and places of business located in Chicago, Illinois, where it is
engaged in the retail sale of new and used motor vehicles. In the course and conduct
of its business operations Respondent annually sells and distributes motor vehicles at
a gross value exceeding $500,000. During the most recent annual period Respondent
received goods valued in excess of $50,000 transported to its places of business direct-
ly from States of the United States other than the State of Illinois. Respondent
admits and I find that it is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
It is the contention of Respondent that International Vehicle Salesmen's Union of
America (Independent) is not a labor organization. A review of the constitution of
the organization, the statements of the employees authorizing it to represent them
for collective-bargaining purposes, and the evidence of several attempts to represent
these employees by negotiating in their behalf with Respondent (infra) clearly per-
suade me that the Union is an organization in which employees participate and that
its purposes include dealing with employers "concerning grievances, labor disputes,
wages, rates of pay, hours of employment or conditions of work." Accordingly I
find the Union to be a labor organization within the meaning of Section 2(5) of
the Act.
111. THE ISSUES INVOLVED
1. Whether Respondent, by interrogation, threats, withdrawals of privileges,
promises of benefits, and rewards, interfered with, restrained, and coerced its em-
ployees.
2. Whether Respondent's discharge of four employees allegedly for cause was a
pretext, the true reason being their union leadership and activity.
IV. THE UNFAIR LABOR PRACTICES
A. Introduction -
Early in April 1961 Merlin W. Griffith and Leonard Pechtold, two of Respondent's
used car salesmen, undertook to organize Respondent's new and used car salesmen
for purposes of representing and bargaining for them with Respondent. A consti-
tution was prepared and membership cards printed. By April 18, 1961, 10 of
Respondent's 13 new and used car salesmen had joined the Union and authorized it
to bargain with the Respondent in their behalf.2 In the meantime on April 17, the
union membership met and ratified the constitution prepared by Griffith and Pechtold,
and elected them to the permanent offices of general president and general secretary-
treasurer, respectively.
B. The refusal to bargain
By letter of April 18, 1961, the Union advised the Respondent that a majority
of its used and new car salesmen had been admitted to union membership and had
designated it as their bargaining representatives and requested that Respondent
1 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witnesses appearing before me is based , at least in part, upon his de-
meanor as I observed It at the time the testimony was given. Cf. Bryan Brothers Pack-
ing Company, 129 NLRB 285 . To the extent that I Indicate that I do not rely upon or
reject in part or entirely the testimony of any given witness, It Is my Intent thereby to
Indicate that such part or whole of the testimony, as the case may be, is discredited by
me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1.
2 The Union's majority status as of April 18, 1961, Is based upon 10 authorization cards
In evidence credibly Identified by employees Pechtold, Griffith, Zion, Krask, Marzano, and
Gardzulas . The number of employees In the unit was stipulated at the hearing
3 It was stipulated at the hearing that Respondent's mechanics and bodymen are repre-
sented by Local 701, International Association of Mechanics, that its porters are rep-
resented by Local 731, International Brotherhood of Teamsters, and that a remainingi
group of employees designated by stipulation as office clerical employees are presently not
M. J. McCARTHY MOTOR SALES CO . 833
recognize its majority representative status. The Company's reply by letter of
April 20 acknowledged the request for recognition but stated its "settled conviction"
that the Union did not represent the salesmen for the purpose named and therefore
declined to meet with it or to discuss with it the terms and conditions of employment.
The Union reasserted its claim by letter of April 27, wherein it repeated its assertion
that it represented a majority of the Respondent' s salesmen and asked that Respondent
reconsider its earlier refusal to recognize and bargain with the Union. In this same
letter the Union listed its elected officers, all Respondent's employees, as follows:
Merlin W. Griffith, general president; Leonard Pechtold, general secretary-treasurer;
Walter Zion, general vice president; James Gardzulas, general trustee; and Steve
Krask, Sr., general trustee. Upon Respondent's failure to acknowledge or reply
to its April 27 letter ,the Union again wrote Respondent on May 4, stating its assump-
tion that Respondent did not wish to bargain with it. The Union's letter also con-
tained a proposal "whereby you that represent Management and us that represent the
Union will select a neutral party that will check the membership cards against any
type of payroll signatures that you may have, if we have a majority then you would
automatically recognize the Union as the bargaining agent for all Automobile sales-
men employed by you at 6515 South Western Avenue, if we do not have the majority
then we would be willing to withdraw our request for voluntary recognition on your
part." The Union's proposal was never accepted and Respondent continues in its
refusal to recognize and bargain with the Union, insisting that it is not a labor organi-
zation and that the proposed bargaining unit is not appropriate.
C. Interference, restraint, and coercion
No sooner had the Union organized and elected its officers on April 17 than the
Respondent began concerted efforts of its own. On the next day Assistant General
Manager Harry Bailey, in a 15-minute conversation with employee Pechtold, asked
him what he knew of the Union, whether employees Zion and Gardzulas had joined,
if Pechtold himself had joined, and what it was that the men wanted. When Pechtold,
after admitting his own union membership, professed ignorance as to the other
information sought of him Bailey dismissed the subject by saying, "You're sure a
great help." 4 On the same date Used Car Salesman Frank Urban asked employee
James Gardzulas if he knew anything about the Union, and if he had signed a union
application. When Gardzulas told him he knew nothing and and not signed a card,
Urban then told him that anyone who belonged to the Union would be blackballed
if they left the Company.5 On the following day, April 19, and presumably after the
receipt of the Union's request for recognition, the tempo increased. Employees
Gardzulas, Pechtold, and Merlin Griffith, the latter two having signed the Union's
April 18 letter (supra,) were summoned to the office where Urban, Bailey, and New
Car Sales Manager Dan Sabino were present. Sabino asked Griffith about the Union
and what he figured he would gain, and Urban asked him questions in the same vein.6
Bailey asked Gardzulas, as had Urban on the day previous, what he knew of the
Union and if he had signed a card. When Gardzulas again professed ignorance Sales
Manager Urban, indicating his foreknowledge concerning Gardzulas, stated to Bailey,
"I told you he doesn't know anything about it." During the course of this same meet-
ing Urban stated that "somebody's liable to get hurt about this Union." When
Griffith asked him if he intended his remarks as a threat Urban replied that he did
not?
Thereafter on the same day Sabino adopted the device of calling the men to his
office individually, asking them if they had signed a union card, and if they admitted
they had, whether they would withdraw their union membership. Employees Steve
Krask and Marzano testified credibly that they were among those thus questioned .8
represented by any labor organization . The employees classified as new and used sales-
men are the only remaining employees employed by Respondent at the place of business
at 6515 South Western Avenue.
4 The credited testimony of Pechtold . Bailey was not questioned concerning these
statements attributed to him.
5 The credited testimony of Gardzulas . Urban was not questioned concerning this state-
ment attributed to him but did admit to other conversations on subsequent dates con-
sidered in detail hereafter.
6 Urban admits to this activity . Sabino was not questioned concerning it
7 The credited testimony of Griffith, Pechtold, and Gardzulas . Neither Bailey nor
Sabino was questioned concerning the meeting. Urban admitted questioning the men and
was not called upon to deny his remark about "somebody getting hurt."
8 Sabino was not questioned about this conduct attributed to him.
634449-62-vol. 135-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When employee Krask refused to withdraw his union membership Sabino informed
him that unless he did so his $50 salary, a standard supplement to the salesmen's
commission, would be discontinued, as would be the use of a demonstrator, or com-
pany car. Whereupon Sabino took from Krask the keys to the demonstrator assigned
to him. Sabino next spoke at length with General Manager T. J. McCarthy and
then recalled Krask to the office. Krask's account of this incident follows:
Well, Dan Sabino said, "Sit down." He said, "Close the door." So, I sat down
and closed the door. He said, "Steve, I think you're making a very big mistake
by joining this union." I said, "Why, Dan9" He said, "Here you're getting $50
a week; you are-getting so much per car on your commission basis" and he
said, "You're getting a demo providing you sell eight cars a month, don't pay
for the demo." I said, "Dan, I'm sorry. I'm going to stay with the union." He
said, "I think you're doing a very big mistake." He said, "I'd like to keep you."
I said, "What's wrong? Are they going to fire me'i" He said, "No, not ex-
actly." He said, "If you leave here, Mike McCarthy can make it mighty tough
for you."
In Marzano's private session with Sabino he was asked, as he had been on several
previous occasions, if he had joined the Union, and Marzano gave him a non-
committal reply. Marzano's credited account of the ensuing conversation follows:
"Well, Jim," he says, "you're only going to hurt yourself." He says, "This
isn't going to help matters any." He says, "It will hurt you if you go for a job
elsewhere. It will blackball your position" and he says, "as of now-" He
stated that "You fellows are all hurting yourselves. You've brought this among
yourselves " He says, "I don't like to do this," he says, "but as of today, you
no longer have $50 a week salary" and he says, "you no longer have a demon-
strator to drive." He did tell me you can buy your demonstrator. I don't
remember he says how much down you can put, but before he even finished
I said, "No, that's out." I says, "I can't afford to buy one."
Coupled with the foregoing instances of questioning and exhorting of salesmen to
give up the Union, Respondent resorted to other devices to achieve the same ob-
jective. Thus during the same April 18-20 period when the Union was making its
initial request for recognition and bargaining, Respondent, without any warning, re-
voked its company car policy whereby salesmen were permitted the use of demon-
strators or "drivers" for their personal use, as described by Krask's and Marzano's
testimony above.9 At the same time, however, arrangements were described by Re-
spondent whereby salesmen would be permitted to purchase their demonstrators by
means of a conditional bill of sale, and by the payment of a specified amount each
month. This arrangement was presented to the men on April 19, following the
previously described session in which they were questioned, threatened with black-
balling if they did not quit the Union, and told that they were losing the privilege of
using a company car. Each of the new car salesmen was presented with bills of
sale. No one appears to have signed these conditional sales contracts except em-
ployees Vasquez, Flynn, and Borgan. Neither Flynn nor Borgan belonged to the
Union, and the record indicates that Vasquez withdrew his union application card on
the day he signed the conditional sales agreement. And by Assistant General Man-
ager Bailey's own admission these contracts were never enforced nor was payment
ever made on them.
Similarly with respect to the company cars of used car salesmen it appears that
employee Gardzulas, who apparently had convinced Urban and Bailey of his non-
union status (supra), was given a car for his use despite the ban, and for a week
thereafter was also given a $25 stipend for "watching" the used car lot in Urban's
absence. Gardzulas lost his $25 assignment and the use of the car on April 28, after
Urban accused him of deceiving him as to his union status, Urban having just learned
that Gardzulas held the union office of trustee.10 During the same period, it is sig-
nificant to note another union trustee, employee Krask, was relieved of the semi-
private office accommodations which he had previously enjoyed and was directed to
the use of the desk provided for salesmen on the selling floor.
In addition to the foregoing there is extensive, and conflicting, testimony dealing
with the mode and amount of compensation to both new and used car salesmen. It
would appear that adjustments in compensation for used car salesmen were made on
or about March 1, when Urban assumed the sales managership. It would also appear
e Supported by the credited testimony of Pechtold, Griffith, Zion, and Gardzulas The
situation was admitted by Salesman Urban who admitted he was instructed by T. J.
McCarthy "to discontinue their use of demonstrators "
10 Gardzulas' credited testimony Urban was not questioned concerning the incident.
M. J. McCARTHY MOTOR SALES CO. 835
that earlier changes had been made in the method and amount of compensation, and
that numerous changes had been made in the like payments to new car salesmen.
I have no basis to doubt that either the March 1, 1961, or the earlier changes were
related to sound business practice. Nor am I disposed to view with suspicion the
compensation changes made later on, in June 1961. But the April compensation
changes are on an entirely different footing. Assistant General Manager Bailey testi-
fied to a change effective in mid-April 1961 whereby all salaries of salesmen were
discontinued and they were placed on a straight commission percentage of gross
profits, and at the same time their privilege of using company cars was withdrawn.
Significantly three employees, Flynn, Jones, and Gardzulas, continued to receive a
salary, and Jones, unlike Krask, continued to use his semiprivate office facilities.
Neither Flynn nor Jones were union members, and Gardzulas, who was believed
not to be a union member, lost his salary when his membership was ultimately dis-
closed. And of still more significance it is to be noted that both employees Krask
and Marzano credibly testified that Sabino threatened them with the loss of their
salary unless they withdrew from the Union.
1. The discriminatory discharges
a. Merlin Griffith
Merlin Griffith, the cofounder and newly elected president of the Union, was dis-
charged on April 27, 1961, for the stated reason that the bonding company which
maintained a blanket bond covering Respondent's salesmen refused to cover him.
When this incident occurred Griffith had been employed by Respondent as sales-
man for slightly less than 2 years. When first employed he filled out a bond applica-
tion and returned it to his then supervisor, Leonard Pechtold, who in turn submitted
it to Miss Marge Reiner, Respondent's insurance manager. What happened to
Griffith's application thereafter remains a mystery. Suffice it to say he continued to
sell used cars and to conduct himself to Respondent's apparent satisfaction.
On April 18, 1961, the day upon which Respondent began its campaign of inquiry
and threat concerning the Union, General Manager T. J. McCarthy instructed' Miss
Reiner to search the files for a copy of Griffith's original bond application. Upon
finding none Miss Reiner was directed by McCarthy to "give him an application and
have him fill it out." After first refusing to comply, Griffith filled out the applica-
tion and submitted it to Miss Reiner on April 21. Whereupon she forwarded the
application to the bonding company which, on April 26, advised Respondent that
its investigation of Griffith was unfavorable and requested a termination of its
liability with respect to him li
The bonding and Griffith's relation to it have several significant facets. Thus it
was a blanket bond that was involved-one covering, without further identification,
all of Respondent's salesmen. When Griffith was advised of the bonding company's
action he immediately offered to secure his own bond and to secure a cosigner, if
one was necessary. Miss Reiner's explanation of Respondent's reaction to this offer
was that it would have been futile as he had already been discharged. Nor did Miss
Reiner ever request, as Respondent had requested several weeks earlier with respect
to another bond rejection, the reinvestigation of Griffith.13
Upon receipt of the foregoing information from the bonding company Miss Reiner
called Griffith to the office and presented him with the letter of rejection whereupon,
as -previously noted, he sought to make other bonding arrangements. When this
information was called to General Manager T. J. McCarthy's attention he, upon
instructions from M. J. McCarthy, discharged Griffith. The actual mechanics of this
discharge involved notifying Used Car Manager Urban who conveyed discharge
tidings to Griffith. When Urban questioned the 2-year delay in discharging Griffith
as a poor bond risk McCarthy's only explanation was that through someone's negli-
gence the original bond application was never filed.13
b. James Marzano.
James Marzano, a new car salesman in Respondent's employ since October 1960,
was discharged on April 27, 1961, the date of Griffith's discharge, for the stated reason
' When Respondent requested an investigation of Griffith it made a similar request for
employee Zion, the Union's vice president. Nothing further developed from this request
and Zion was discharged for another reason.
12 The foregoing account of Respondent's action with respect to Griffith is based upon
Miss Reiner's testimony at the hearing
12 The undenied testimony of Urban upon which I rely is an admission by Respondent.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he came to work late . Marzano's union membership was previously known to
Respondent, as disclosed by Used Car Sales Manager Sabino 's private conversation
with him during the course of which Marzano was threatened with blackballing,
deprived of the further use of a company car, and suffered the loss of a $50 weekly
salary.
it appears in the record that Marzano 's attitude toward promptness was a
relaxed one and that he had at some undetermined earlier time been told to get to
work on time , he was recognized as one of Respondent 's better salesmen and, as a
witness, impressed me as having the ideal personality and appearance of an effective
salesman. Sales Manager Sabino , after discharging Marzano , came to him and told
him that he would miss him.14 Indeed Sabino testified that Marzano was a hard
worker, and that he had complimented him on his work in the past.
With respect to Respondent 's standing policy on lateness it would appear that the
principal objective was to be certain that the selling floor would be covered at all
times, and in this matter of absence from the selling floor Sabino conceded that "the
best way to get salesmen to sell was to give them a certain amount of freedom."
Against this backdrop Sabino , in discharging Marzano , conceded that he did not
even inquire of him why he was late-the actual reason being an ill child at home.
And he also conceded that Marzano , as did other salesmen , spent a considerable
number of off hours visiting prospects and soliciting sales, thus supporting his testi-
mony that prior to the incident he "never really had a hard and fast rule, and I
trusted every man. If they were capable of making a living for themselves , they were
capable of making a living for me."
c. Walter Zion
Walter Zion , a new car salesman employed by Respondent since 1957 , was elected
to the office of vice president of the Union on April 17 , and his name was included
among the officers listed in the Union's April 27 letter of request for recognition and
bargaining . Significantly, he was discharged on the following day, April 28, the date
upon which Respondent presumably received this letter, and the day after it had
discharged Marzano and Union President Griffith . New Car Sales Manager Sabino's
discharge of Zion in the late afternoon is best described by Zion 's credited account:
He told me-he said , "I have to let you go" and I said, "Well, why?" He said,
"No reason . I'm just following orders" and he said, "I hate to let you go. We
work good together. Now I got to go out and hire a whole new sales force.
I've got to go out and train a whole new sales force," and I said , "I don't want to
leave" but, I said, "I knew it was coming . I knew it was just a question of time."
Sabino 's testimony lends support to his quoted statement that there was no reason
for the discharge . Thus he testified that Zion was one of the top men in the Company
and had been such for years . Furthermore, his part in the discharge was limited to
executing M. J. McCarthy 's orders given to him by telephone from California,
specifically:
He told me to discharge Walter Zion on the basis of the conversation he had
with him in the office; that Walter Zion-this is another thing that I cannot
specifically tell you word for word-but something about stabbing my back,
putting a knife in my back, along those lines.
Although closely questioned concerning any possibility that Zion had, in fact , attacked
McCarthy with a knife prior to his departure for California , Sabino was not aware of
such an incident. In the absence of any supporting evidence on the subject I find
that no such knifing ever occurred . Rather , upon consideration of the disclosure to
Respondent that Zion was one of the Union 's officers, McCarthy 's reference to a
knifing in the back suggests a well-known figurative illusion, semantically compar-'
able to the double-cross, and I so find.
d. Leonard Pechtold
Leonard Pechtold, in Respondent's employ for the previous 41h years as used car
salesman and sales manager, intermittently , was discharged on June 12 , 1961, from
his job as used car salesman for the stated reason that he came to work 45 minutes
late. Pechtold , it will be recalled , was elected vice president of the Union on April
17, and in the Union 's letter of April 18 to Respondent requesting recognition and
bargaining , his name was listed among the Union's officeholders.
14 Marzano's credited testimony.
M. J. McCARTHY MOTOR SALES CO. 837
The used car department employed three salesmen under Sales Manager Urban.
Urban testified that these men had no definite working schedules , preferring to work
out their schedules voluntarily on a rotation basis. All that was required was that the
lot be opened at 9 a .m. and that two men cover it during the evening. On the date
in question, which coincided with the date upon which the original complaint in this
proceeding was served upon the Respondent , June 12, neither Pechtold nor Gardzulas
arrived at the lot until 10 a.m. Upon their arrival General Manager T. J. McCarthy
discharged Pechtold, stating that it was for his lateness . Gardzulas , who was equally
late, was not fired. While it appears from Pechtold's own credited testimony that he
had been late before and that on the previous Saturday both he and Gardzulas had
been reprimanded by Urban for being late on that occasion . Pechtold credibly
testified that during the period of his employment as sales manager there were no
established rules on lateness and he knew of no change in company policy upon
Urban's assumption of the managership.
e. Analysis and conclusions
1. Refusal to bargain
Respondent seeks to excuse its refusal to bargain with the Union on the grounds
that : (1) The Union is not, in fact, a labor organization , (2) the unit in which bar-
gaining was sought was not an appropriate one, and (3) the Union has never, in
fact, represented a majority of the employees in the bargaining unit.
With respect to the claim that the Union is not a labor organization I have already
found to the contrary upon credible evidence and accordingly reject this as a defense
to Respondent 's refusal.
When Respondent 's counsel reiterated at the hearing its allegation in the answer
that it deemed the bargaining unit inappropriate , I sought to elicit from him a
statement as to what unit Respondent did consider appropriate. Upon his refusal to
so state, I invited counsel 's attention to Section 9(a) of the Act which vests in the
Board the exclusive authority to determine the appropriate unit , and I suggested that
he, by his refusal to do more than deny the appropriateness of the unit alleged in the
complaint, was necessarily relying upon the Board 's determination based upon the
record made. This he conceded.
The complaint alleges the following unit to be appropriate for bargaining
purposes:
All car salesmen employed by the Respondent at 6515 South Western Avenue,
Chicago 36 , Illinois, but excluding all supervisors as defined in the Act, office
employees , and all other employees.
Both of Respondent 's sales managers, Urban and Sabino, testified in answer to a
question posed - by me that based upon their experience as supervisors of used and
new car salesmen , Respondent's salesmen performed duties and functions identical to
those duties and functions of used and new car salesmen previously supervised by
them at other places of employMent . As it is well established generally that a unit of
new and used car salesmen constitutes a unit appropriate for bargaining ,15 I find that
Respondent's new and used car salesmen , as previously described , constitute an
appropriate unit for such purposes.
With respect to the Union 's majority status it is clear from an inspection of the
authorization cards signed by 10 of the 13 employees in the bargaining unit that they
intended the Union to represent them . These cards were identified at the hearing by
credible witnesses who had signed their own cards and had procured the signatures
on the remaining cards. In this respect, Respondent , having refused to accede to a
payroll signature comparison , cannot be heard now to doubt their authenticity or the
Union's majority status.16
Having refused to bargain with the Union found to be a labor organization repre-
senting a majority of its employees in a unit which I find to be appropriate for the
purposes of collective bargaining, Respondent has thereby refused to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
15 Weaver-Beatty Motor Co , 112 NLRB 60.
19 With particular reference to my subsequent findings of discrimination , interference,
restraint , and coercion , "such [ attempted ] dissipation of the union 's majority dissolves
any dispute over respondent ' s good faith in doubting the union 's representation. .
N L R B v . Lively Service Company, 290 h' 2d 205, 208 ('C.A. 10). See also: Bihnski
Sausage Manufacturing Company, Inc., 132 NLRB 229
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Interference, restraint, and coercion
A review of the credible evidence herein and the findings I have made with re-
spect to it clearly discloses a deliberate effort upon part of Respondent to thwart
the Union at every turn. Thus, it begins by interrogating the employees to learn as
much as it can of the Union and who was in it, and follows by a series of requests
of known adherents to get out of the Union, or suffer the consequences of remaining.
The pattern continues by withdrawing long-established benefits from those tenacious
enough to remain in the Union and by rewarding the others, all the while refusing
to deal with the Union and instituting steps to remove its known leaders from the
payroll.
Such a course of conduct, in large part undenied or even unexplained, constitutes
a form of activity which the Board has consistently found to constitute interference,
restraint, and coercion of employees in the exercise of rights guaranteed them by the
Act. Citation of authority in unnecessary to establish this illegality. Accordingly
I find that Respondent has by the conduct summarized above and found in detail
earlier in this report, violated Section 8(a) (1) of the Act.
3. The discriminatory discharges
Coming as they do upon the heels of Respondent's manifest opposition to the
Union, the discharges of its leaders and active adherents is a logical sequence and
an obvious device to eliminate the Union itself.
There can be no questioning, of course, but that Leonard Pechtold and James Mar-
zano were guilty of tardiness on the occasion of their discharge, any more than there
can be doubts that an insurance investigation, delayed for 2 years, had revealed
something in Merlin Griffith's past that would make him a poor risk as a salesman,
albeit he showed no indications of such shortcomings during his previous years of
employment. It is the relationship to Respondent's active opposition to employee
organization that is significant, and the timing of Respondent's personnel actions.17
Thus, no sooner does Respondent learn of the Union and of its leadership than it
seeks out the leaders and dismisses them for reasons available to it all along. It
learned of Marzano's membership and then his tardiness suddenly became offensive.
It learned of Griffith's union presidency and a bond investigation was suddenly re-
quested, as was one for employee Zion, another union leader. Knowing of Pecht-
old's union office, it found him late on the date the complaint in this proceeding
was served upon it, and it used this lateness as the basis for his discharge.
I am persuaded that the tardiness of Marzano and Pechtold had never become so
aggravated, nor the background of Griffith so suspicious, as to impel Respondent's
discharge of each of them coincidentally with its knowledge of their union activity.
"[I]t is reasonable to conclude that the difficulties inherent [in their cases] only
became unsupportable" when they became leaders in or active in behalf of the
Union.1°
On the contrary I cannot but infer the only reasonable explanation for Respond-
ent's precipitous action. Coming as it did when favors were being bestowed on other
employees known to have not joined the Union,19, and when Respondent's known
opposition was clearly expressed, I conclude and find that the reasons assigned for
the discharge of Leonard Pechtold, James Marzano, and Merlin Griffith were not
the true reasons for their respective discharges but were pretexts for Respondent's
desire to rid itself of union leaders and adherents, and thereby destroy the Union
itself 20
Walter Zion's discharge appears in a different posture. No reason at all was
given for his discharge other than the accusation that on some undisclosed earlier
occasion he tried to stab M. J. McCarthy in the back. Finding as I have that this
was simply an expression of Respondent's belief that Zion had double-crossed it,
and noting Zion's known position of union trustee, I can make no other reasonable
inference except that the only "backstabbing" in which Zion had engaged was his
known prominence in the Union as a trustee and that his discharge was for this
and no other reason. Such a conclusion absorbs added strength from evidence in
the record that Respondent sought a bond investigation of Zion when it sought one
of Griffith.21 In the case of Griffith this device succeeded But having uncovered
17 N L.R B. v. Lively Service Company, supra; Reeves Brothers, Inc , et at ., 116 NLRB
422, 432
18 Agwiiines , Inc v. N L R.B , 87 F 2d 146, 154 (C A. 5)
19 Southern Desk Company, 116 NLRB 1168, 1170
20 Butcher Boy Refrigerator Door Co . v. N.L.R.B., 290 F 2d 22 (CA. 7). Jimmy Green,
Chevrolet, 133 NLRB 44.
21 The testimony of Marge Reiner, Respondent 's insurance manager
M. J. McCARTHY MOTOR SALES CO. 839
nothing unfavorable in a reinvestigation of Zion, Respondent, thereupon adopted
the more direct stratagem of discharging him for no reason at all.
Having found as I have that all four employees, Leonard Pechtold, Merlin Griffith,
James Marzano, and Walter Zion, were not discharged for the reasons assigned but
because of their union adherence and leadership, I conclude and find that Respondent
has thereby discriminated against each of them in violation of Section 8 (a) (3) of
the Act and has thereby further interfered with, restrained, and coerced its employees
in violation of Section 8(a) (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section IV, above, occurring in connec-
tion with the operations of the Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Since it has been found that Respondent, by discharging certain named employees,
discriminated against them in violation of Section 8(a)(3) of the Act, and has
otherwise interfered with, restrained, and coerced its employees in violation of
Section 8 (a)( I) of the Act, and has refused to bargain with the Union as a represen-
tative of its employees in an appropriate bargaining unit, I shall recommend that Re-
spondent cease and desist therefrom and from infringing in any other manner upon
the rights of employees guaranteed in Section 7 of the Act 22 I shall recommend
that the Respondent offer to the aforementioned employees immediate and full re-
instatement to their former or substantially equivalent positions 23 without prejudice
to their seniority or other rights and privileges. I shall also recommend that Re-
spondent make whole each of the aforementioned employees for any loss of earnings
they may have suffered because of the discrimination against them with backpay
computed in the customary manner.24 I shall further recommend that the Board_
order Respondent to preserve and make available to the Board upon request payroll
and other records to facilitate the checking of the amount of backpay due and the
rights of employment. And finally, having found that the Respondent refused to
bargain with the representative of its employees, I shall order the Respondent upon
request of the Union to bargain with it as a representative of the employees in what
T find to be a unit appropriate for the purposes of collective bargaining.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act and its operations occur in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The ' Union 'is a labor organization within the meaning of Section 2(5) of the
Act.
3. All car salesmen employed by the Respondent at 6515 South Western Avenue,
Chicago 36, Illinois, but excluding all supervisors as defined in the Act, office em-
ployees, and all other employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section•9(b) of the Act.
4. On and since April 18, 1961, the Union has been and now is the exclusive
representative of employees in the bargaining unit described above.
5. By failing and refusing upon request of the Union to recognize the Union as
the representative of its employees and to meet with the Union as such representative
for the purpose of negotiating a collective-bargaining contract, Respondent has
thereby engaged in and is engaging in an unfair labor practice within the meaning
of Section 8 (a) (5) of the Act.
6. By discriminating in regard to the tenure of employment of Leonard Pechtold,
Merlin Griffith, James Marzano, and Walter Zion Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
7. By the foregoing conduct, and by interrogating its employees concerning the
Union and the activity and membership therein of its employees, by threatening its
as N L R B v. Express Publishing Company, 312 U.S. 426, 437
21 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,.
65 NLRB 827.
P. TV. Woolworth Company, 90 NLRB 289.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with reprisal if they do not withdraw from the Union, by promising and
awarding economic benefits to employees for their withdrawal from or failure to
join the Union, and by withdrawing privileges from employees who remained in
the Union , Respondent has interfered with, restrained , and coerced its employees
in the exercise of their rights guaranteed them by Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 ( a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Ox-Wall Products Manufacturing Co., Inc., Oxwall Tool Co.,
Ltd., Warren Products , Ltd. and Pioneer Merchandise Corp.
and International Association of Machinists, AFL-CIO. Case
No. 22-CA-891. February 5, 1962
DECISION AND ORDER
On October 25,1961, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8(a) (1) and (3) of the Act, 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 and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the 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 that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as modified herein.
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act by engaging in unlawful interrogation and
threats of economic reprisal against its employees if they joined or
assisted the Union.
2. While the matter is not free from doubt in view of the surround-
ing circumstances, we are constrained to agree with the Trial Ex-
aminer that the Respondent would have transferred its shipping, also
referred to as assembling and shipping, operations out of the State of
'The Respondent's request for oral argument is denied , as the record and briefs ade-
quately present the issues and positions of the parties.
135 NLRB No. 87.