McCarthy-Bernhardt Buick, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1953

103 N.L.R.B. 1475 (N.L.R.B. 1953)

McCARTHY-BERNHARDT BUICK , INC . 1475
wages , rates of pay, hours of employment and other conditions of employ-
ment , and if an understanding is reached , embody such understanding in a
signed agreement . The bargaining unit is :
All production and maintenance employees at our Dallas plant, in-
cluding truck drivers , porters, storekeeper, shipping and receiving
clerks , but excluding office and clerical employees , salesmen , engineer,
guars, watchmen, professional employees , and supervisors as defined in
the Act.
WE WILL NOT in any manner interfere with the efforts of the above-
named union to bargain collectively with us, or refuse to bargain with said
Union, as the exclusive representative of all our employees in the bargaining
unit set forth above.
Dated--------------------
TaINrrr STEEL COMPANY, INC.,
Employer.
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.
MCCARTHY-BERNHARDT BUICK , INC. and LOCAL 259, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 2-CA-1797. April 2, 1953
Decision and Order
On April 9, 1952, Trial Examiner Horace A. Ruckel issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices in violation of Section 8 (a) (5) alleged in the complaint
and dismissed the 8 (a) (5) allegation at the close of the hearing.
In so doing, the Trial Examiner made no findings of fact and con-
clusions of law to support his ruling, as required by Section 102.45
of the Board's Rules and Regulations? Therefore, on November 20,
1952, the proceeding was referred back to the Trial Examiner for the
purpose of issuing a Supplemental Intermediate Report containing
findings of fact and conclusions as the basis for his dismissal of the
I The pertinent provision of this section is as follows :
After hearing for the purpose of taking evidence upon a complaint , the trial
examiner shall prepare an intermediate report and recommended order, but the
initial decision shall be made by the Board . Such report shall contain findings of
fact , conclusions , and the reasons or basis therefor , upon all material issues of fact,
law, or discretion presented on the record , and the ree imended order shall contain
recommendations as to what disposition of the case should be made.
103 NLRB No. 105.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (5) allegation. The Supplemental Report was issued December
31, 1952, in which the Trial Examiner affirmed his dismissal of the
8 (a) (5) allegation. The Respondent, the CIO and the General
Counsel filed exceptions with supporting briefs.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was Committed.-3
Except as hereinafter appears, the rulings are hereby affirmed. The
Board has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case.4 The Board agrees with the
Trial Examiner's findings of fact, conclusions of law, and recom-
mended order in regard to the violations of Section 8 (a) (1) and
8 (a) (3) of the Act. However, because of the Board's disagreement
with the Trial Examiner's findings and conclusions in regard to the
violations of Section 8 (a). (5) of the Act, the Board hereby makes
its own findings with respect to this allegation of the complaint.
Respondent, a franchised Buick dealer in Brooklyn, New York, is
enaged in the purchase, sale, and distribution of new and used cars
and in the repairing and servicing of such. On March 1, 1950, when
Respondent purchased this business, there were 5 salesmen, and by
January 1951, the number of salesmen was increased to 10, 1 of whom
sold used cars only. On January 12, 1951, 8 out of the 9 new-car
salesmen joined the Union. The record shows that on January 16,
Meyers, the union representative, met Edelman, the Respondent's
attorney, at a diner in Brooklyn. According to Meyers, he told Edel-
man that the Union represented the majority of the Respondent's
salesmen and that the Union would like to negotiate a contract for
the salesmen. Edelman replied he would have to discuss this matter
with Respondent's president, McCarthy, and would notify him as to
whether McCarthy was willing to negotiate a contract or proceed
with an election.' A few days later, according to Meyers, Edelman
a 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 Murdock , Styles,
and Peterson].
'At the hearing, Respondent 's attorney requested the Trial Examiner and the General
Counsel ' s representative to produce any statements or affidavits made by the witnesses
for the Board prior to the hearing in order to test the witnesses ' credibility. This re-
quest was denied under applicable Board Rules ( Sec 203 .90 Series 5 and Sec. 102 90
Series 6 ), which prohibit Board employees from producing any files or records , etc., with-
out written consent of the Board or its chairman . During the hearing, the General
Counsel stated he had examined the file and did not find any such statements as requested
by the Respondent , and the latter made no further requests to Board authorities to obtain
such documents . We therefore find no merit in the Respondent's contention that the
Trial Examiner committed prejudicial error in failing to require production of the alleged
documents.
'Respondent 's request for oral argument is denied , because the record and briefs
adequately set forth the positions of the parties.
'Edelman admitted that this conversation concerned organization of salesmen , but that
it was not limited to salesmen of the Respondent . Edelman testified that what Meyers
wanted him to do was to get the Respondent and all Brooklyn Buick dealers to form an
association which Edelman could represent , and that Meyers would represent the salesmen
MCCARTHY-BERNHARDT BUICK, INC. 1477
informed Meyers in a telephone conversation that the Respondent
would insist on an elections The Union then proceeded with arrange-
ments for the filing of a representation petition.
On the 23rd of January, as found by the Trial Examiner, the Re-
spondent discriminatorily discharged 5 out of the 10 salesmen. Imme-
diately thereafter, Meyers telephoned to Edelman protesting the dis-
charges and requesting Edelman to see what he could do to reinstate
the men. Edelman testified that he telephoned to McCarthy to learn
the facts concerning the discharges and that McCarthy declared the
men were dismissed for economic reasons and not for union activities.
On January 24, the representation petition was filed of which the
Respondent was immediately notified, and on January 25 or 26 a con-
ference called by a field examiner of the Board was attended by
Meyers for the Union and Edelman's assistant, Wasserman, for the
Respondent. At this conference the Respondent took the position
that the discharged men should not vote in any election; accordingly
no agreement was reached. Therefore, the Union withdrew its rep-
resentation petition and filed charges under Section 8 (a) (1) and
8 (a) (3) of the Act, which were subsequently amended to include a
charge under Section 8 (a) (5) for refusal to bargain.
In his Supplemental Intermediate Report, the Trial Examiner
states two grounds for his dismissal of the 8 (a) (5) allegation in
the complaint : (1) The Union made no demand upon Respondent
to bargain for the salesmen; and (2) Edelman had no authority to
represent the Respondent insofar as the salesmen were concerned,
nor did Edelman hold himself out as having such authority. We find
these conclusions are not supported by the record.
As to the existence of a demand by the Union upon the Respondent
to bargain for the salesmen, the Trial Examiner credits Edelman and
discredits Meyers. However, assuming that Edelman's testimony is
credited in preference to that of Meyers, it is clear, upon Edelman's
own testimony, that Meyers requested recognition for the salesmen
on or about January 25, as shown by the following quotation from the
record : 7
TRIAL EXAMINER RUCKEL : In the telephone conversation in
which he stated he had the cards of these men and he had organ-
ized them and some of them had been laid off, did he make any
request or demand at that time that you discuss recognition?
of all these dealers . The Trial Examiner does not resolve this conflicting testimony except
to find that the Union made no demand upon the Respondent to bargain for its salesmen
and that in reaching this conclusion , he credited Edelman and not Meyers . However, as
appears herein, if Edelman is credited and Meyers is not, Edelman admitted that Meyers
made a request to bargain on or about January 25.
Edelman admitted that he talked to Meyers at this time and that he told Meyers he
had talked to McCarthy . However, he also stated that as a matter of fact he had not
talked to McCarthy on the subject of the salesmen.
Transcript, p. 305
257965-54-vol. 103-94
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS': (Edelman) I told him at that time I couldn't
discuss anything with him.
TRIAL EXAMINER: Did he make such a request?
THE WITNESS: He made the request. (Emphasis supplied.)
TRIAL EXAMINER : What was it?
THE WITNESS : The request was: Will you sign a contract?
TRIAL EXAMINER : For the salesmen?
THE WrrNEss : Yes. I said "For God's sakes, what do you
want me to do? Get yourself certified. If you have got these
people, get yourself certified and if Ronald McCarthy calls me
in, I willf he glad to negotiate a contract With you."
On the basis of the foregoing credited testimony of Edelman which
the Trial Examiner apparently failed to consider in finding to the con-
trary, we find that the Union did make a demand to bargain for the
salesmen.
The second conclusion by the Trial Examiner that Edelman had no
authority to represent the salesmen and had not held himself out as
having such authority, is also not supported by the record. Edelman
had been, and at the date of the hearing was, the Respondent's labor
relations attorney in dealing with the Respondent's shop employees,
represented by the Union. Edelman had negotiated the shop em-
ployees' contract and had represented the Respondent in the handling
of grievances under that contract. Edelman had always dealt with
Meyers in all union matters and therefore Meyers reasonably assumed
that Edelman's representation of the Respondent extended to other
employees of the Respondent. Prior to the admitted request to bar-
gain, Meyers contacted Edelman by telephone and the latter, at
Meyers' request, communicated with McCarthy concerning the dis-
charges, and reported back to Meyers the Respondent's position re-
garding them. When Meyers telephone Edelman, the latter, as set
forth above, had insisted that the Union get itself certified. There-
after, at a conference called by a field examiner of the Regional Office
for the purpose of arriving at an agreement for a consent election,
Edelman's assistant, Wasserman, represented the Respondent. In our
opinion, therefore, Meyers rightfully assumed that Edelman was rep-
resenting the Respondent with respect to the salesmen. At no time
did Edelman declare that he had no such authority .8 Moreover, at
the hearing McCarthy, who testified, never disavowed or repudiated
e with reference to his meeting with Meyers on January 16, Edelman testified as
follows :
Mr. Moore: ( General Counsel ) Specifically , did you tell him (Meyers ) you were
not authorized to represent Mr. McCarthy concerning the salesmen?
Answer : ( Edelman ) As a matter of fact, the conversation never came up.
Trial Examiner : The answer is no, then?
Answer : No. No.
McCARTHY-BERNHARDT BUICK, INC. 1479
Edelman's authority to represent the Respondent in.his,dealings with
Meyers concerning the salesmen.
We conclude, upon the basis of the foregoing, that the Union made
an appropriate demand upon the Respondent for recognition as the
bargaining representative of the salesmen. We find, therefore, as did
the Trial Examiner, that on and after January 12, 1951, the Union
represented a majority of the salesmen in an appropriate unit. Al-
though it was not so found by the Trial Examiner, we find that on
January 25 or 26, the Respondent refused to recognize the Union until
certified by the Board. The discriminatory discharges, as found by
the Trial Examiner, took place on January 23, or about 2 or 3 days
before the Respondent's refusal to bargain on the Respondent's own
evidence. The Respondent therefore could not have demanded an
election and certification in good faith and at the same time embark
upon an unlawful course of conduct which would destroy the Union's
representative status.
The Board has held that an employer may in good faith insist on a
Board election as proof of the union's majority, but that it unlawfully
refuses to bargain if its insistence on such an election is motivated, not
by any bona fide doubt as to the union's majority, but rather by a rejec-
tion of the collective-bargaining principle or by a desire to gain time
within which to undermine the union?
The evidence shows that some 3 or 4 months after the events de-
scribed herein, that is, in April or May 1951, Wasserman, Edelman's
assistant who represented the Respondent, and Meyers, representing
the Union, had a conference for the purpose of renewing the contract
pertaining to the shop employees, and that at that time Wasserman
requested Meyers to submit a contract for the salesmen. Meyers testi-
fied that he thereupon telephoned to the field examiner of the Board's
Regional Office requesting his advice in this matter. According to
Meyers, the field examiner advised that, as the unfair labor charges
concerning the salesmen were then before the Board and the Respond-
ent had refused to recognize the Union, it was not required to submit
a contract. The Respondent's attorney urged at the hearing that, as
the Union had failed to submit a contract for the salesmen when re-
quested, the Respondent did not refuse to bargain in violation of the
Act. We do not agree.
The Board has held that where an employer has engaged in unfair
labor practices and thereafter voluntarily abandons its former unlaw-
ful conduct, the Board may still issue an order to cease and desist from
the earlier unfair labor practices, for to hold otherwise would defeat
the Board's power to guard against possible future recurrence of the
, *Joy d'iik Mifa, 86 NLRB 1263 ; Cuff man Lumber Company, Ina., 82 NLRB 296.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful acts.10 The fact that 3 or 4 months after the unlawful con-
duct, the Respondent requested the submission of a contract, does not
cure the earlier violation of refusal to bargain. To hold otherwise
would mean that the Employer would be permitted to profit by its own
wrong in disrupting the Union and postponing collective bargaining
indefinitely until the Employer unilaterally desires to do so. We find
that the Respondent's belated suggestion that the Union resume collec-
tive bargaining by submitting a proposed contract does not, in view
of the length of time intervening, establish a sincere desire on the part
of the Respondent to abide by the principles of collective bargaining,
following its earlier rejection of those principles 11 or warrant the dis-
missal of the 8 (a) (5) charge. Under the circumstances, we find,
contrary to the Trial Examiner, that the Respondent refused to bar-
gain on January 25 or 26, 1951, in violation of Section 8 (a) (5) of the
Act 12
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, McCarthy-Bern-
hardt Buick, Inc., and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 259, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
CIO, as the exclusive representative of all its new-car salesmen em-
ployed by the Respondent at its Brooklyn, New York, plant, excluding
all other employees, watchmen, guards, and all supervisors as defined
in the Act.
(b) Discouraging membership in Local 259, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO, or
any other labor organization of its employees by discharging any of
them or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Local 259, United Automo-
bile, Aircraft and Agricultural Implement Workers of America, CIO,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in other mutual aid or
protection or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring mem-
10 Taormina, E. A. et al , 94 NLRB 899.
U Cf. Longview Furniture Company, 100 NLRB 301.
22 Because of our finding above, it is unnecessary to determine' to what extent, if any,
the Union 's failure to submit a contract was due to its reliance upon the advice of a
representative of the Board.
McCARTHY-BERNHARDT BUICK,, INC. 148,1
bership in a labor organization as a condition of employment as au-
thorized in Section d (a) (3) of the Act as guaranteed in Section 7
thereof. ,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 259, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
CIO, as the exclusive representative of all its employees in the above-
described unit with respect to wages, rates of pay, hours of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Offer to Nat Glick, Raoul Will, and Vincent Bowen full and
immediate reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges.
(c) Make whole the said Nat Glick, Raoul Will, Vincent Bowen, and
Robert Kiefer, and the legal representative of Richard Levinson, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(d) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security records,
timecards, personnel records and reports, and all other records neces-
sary to analyze the amounts of back pay due.
(e) Post in its salesroom in New York, copies of the notice attached
hereto and marked "Appendix A." 13 Copies of such notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by Respondent's authorized representative,
be posted by Respondent immediately upon receipt thereof in con-
spicuous places including all places where notices to employees are
customarily posted. Reasonable steps: shall be taken by Respondent
to insure that such notices are not altered, defaced, or covered by any
material.
(f) Notify the Regional Director for the second Region, in writing,
within ten (10) days from the date of this Order what steps Respond-
ent has taken to comply therewith.
"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 Enforciyg an
Order."
Appendix A
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 our employees that:
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively, upon request, with LocAL 259,
UNITED AuToMonn , AIRCRAFT AND AGRICULTURAL IMPLEMENT
Www,ERS OF AMERICA, CIO, the ,exclusive= repaesentative, of all
employees in the bargaining unit described herein as below with
respect to wages, rates of pay, hours of employment, and other
conditions of employment and, if any understanding is reached,
embody such understanding in a signed agreement.
The bargaining unit is :
All new-car salesmen at our plant in Brooklyn, New York, ex-
cluding all other employees, watchmen, guards, and all super-
visors as defined in the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LocAL 259, UNITED
AUTOMOBILE, AIRCRAFT AND AORICIILTuRAL IMPLEMENT WORKBRS
OF AMERICA, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, and to refrain from any
or all of 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority previously enjoyed, and
make them whole for any loss of commissions suffered as a result
of the discrimination :
Nat Glick
Raoul Will
Vincent Bowen
WE WILL make whole the employee first named below, and the
legal representative of the second, for any loss of commissions
suffered as a result of the discrimination :
Robert Kiefer
Richard Levinson
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
McCARTHY-BERNHARDT BUICK, INC. 1483
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
MCCARTAY-BmxHAxttirBlrICw, INC.,
Employer.
By ---------------------------------------
Dated-------------------- ( 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.
Intermediate Report
STATEMENT OF THE CASE
Upon arfirst - aiAended . cb"ge , Sled on February 15, 1951 , by Local 259 , United
Automobile , Aircraft and Agricultural Implement Workers of Aemirca, CIO,
herein called the Union , the General Counsel for the National Labor Relations
Board , herein respectively called the General Counsel and the Board, by the
Regional Director for the Second Region ( New York , New York ), issued his
complaint dated October 29, 1951 , against McCarthy-Bernhardt Buick , Inc., herein
called Respondent , alleging that Respondent had engaged in and was engaging
in certain unfair labor practices affecting commerce within the meaning of
Section 8 ( a) (1), (3), and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. A copy of
the complaint , accompanied by a notice of hearing , was served upon Respondent
and the Union.
With respect to the alleged unfair labor practices the complaint alleged in
substance that Respondent : ( 1) From about January 16 , 1951 , interrogated
its employees concerning their union affiliations and threatened them with dis-
charge if they joined or assisted the Union ; ( 2) on or about January 23, 1951,
discharged Nat Glick , Richard Levinson, Raoul Will , Vincent Bowen , and Robert
Kiefer, and thereafter failed and refused to reinstate them because of their activ-
ities in behalf of the Union ; ( 3) since January 16, 1951, has refused to bargain
collectively with the Union as the, exclusive representative of. employees in, an
appropriate unit. By these acts it is alleged that Respondent interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
On November 8, 1951, Respondent filed its answer in which it denied the
commission of any unfair labor practices.
Pursuant to notice , a hearing was held at New York , New York, from De-
cember 10 to 13, 1951 , before me, the undersigned Trial Examiner , designated
by the Chief Trial Examiner . The General Counsel, the Respondent , and the
Union were represented by counsel and participated in the hearing . Full op-
portunity to be heard , to examine and cross-examine witnesses , and to intro-
duce evidence bearing upon the issues was afforded all parties . At the con-
clusion of the hearing , upon motion by Respondent , I dismissed the complaint
insofar as it alleged that Respondent had failed and refused to bargain with
the Union , and reserved a ruling upon a motion to dismiss the remaining issues
in the ,case . This motion is disposed of by , the,recemi n*tions rhereillsfter
made . Without objection , I granted a motion by the General Counsel to con-
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form the pleadings to the proof in formal matters. The parties waived oral
argument but were granted the privilege of filing briefs within 15 days from the
close of the hearing. Subsequently, the time within which to file briefs was
extended by the Chief Trial Examiner. On February 7, 1952, the Respondent
filed a brief.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation having its principal office and place
of business at Brooklyn, New York, where it is engaged in the purchase, sale,
and distribution of new and used automobiles, automotive parts and accessories,
and in the repair and servicing of automobiles, operating under a franchise from
Buick Corporation. During the year 1950, Respondent caused to be purchased
and transferred to its Brooklyn plant automobiles and parts valued in excess
of $500,000, all of which was transported to it in interstate commerce from
States of the United States other than the State of New York. During the
same period 1950 Respondent, in the course of its business operations, sold and
distributed automobiles and parts, having a value in excess of $1,000,000, of
which approximately 5 percent was transported in interstate commerce to
States of the United States other than the State of New York.
I find that Respondent is and has been engaged in commerce within the mean-
ing of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Local 259, United Automobile, Aircraft and Agricultural Implement Workers
of America, is a labor organization admitting employees of Respondent to
membership. It is affiliated with the Congress of Industrial Organizations.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
1. Organization by the Union
On March 1, 1950, Respondent purchased its place of business from Kings
County Buick Company and employed 5 salesmen. This number was added to
until on January 23, 1951, there were in Respondent's employ 10 salesmen, sev-
eral of whom had been previously employed by Kings County Buick Company.
Of these, one Marcus was the only one who sold used cars. The other 9 were
new-car salesmen.
On January 12, 1951, at a meeting of the Union or later during the day, 8 of
the 9 new-car salesmen joined the Union. Henry Gearhardt did not. On
January 24, the Union filed a representation petition' pertaining to Respond-
ent's salesmen and Respondent was advised to that effect by the Regional
Director on the same or following day. On January 23, the day prior to the
filing of the petition, Respondent discharged the 5 employees named in the
complaint.
It is clear from the record that shortly after the salesmen joined the Union,
and before January 23, Respondent acquired knowledge of their interest in it.
For example, all the dischargees named in the complaint, with the exception of
A Case-No. 2-RC-3273. The petition was withdrawn-on February 14, 1951.
MCCARTHY-BERNHARDT BUICK, INC. 1485
Levinson , now deceased, and including Gearhardt, testified to a conversation on
the sales floor concerning the Union in which Leo Harris, Respondent' s sales
manager , participated. All the witnesses, excepting Gearhardt, fixed the con-
versation as taking place on January 17. Gearhardt fixed it as having occurred
between January 12 and 23 . The sum and substance of the testimony of these
witnesses , differing only with respect to certain details, is that Harris in the
company of Gearhardt came onto the sales floor where the salesmen were assem-
bled, and a conversation concerning the Union followed. Gearhardt gave as
his opinion that the Union was not needed in the salesroom' and that if the
salesmen have any grievances they should take them up with Ronald McCarthy,
Respondent's president. Harris agreed, saying, in effect, that Gearhardt had
good ideas on the subject and that the other employees should listen to him.
One or two witnesses testified that Harris went on to say that there were ways
and means of getting rid of union adherents, that Respondent had "connections"
at the Board's Regional Office, etc. I do not find that these latter statements
were made by Harris. Instead, I credit the version given by Kiefer, not only
because he impressed me favorably by his demeanor and qualified manner of
testifying, but because he alone of the five dischargees was subsequently rehired
and was still employed by Respondent. Kiefer's testimony, corroborated by
other witnesses, is that Gearhardt, in the presence of Harris, stated that the
employees were foolish for joining the Union and that any grievances they had
could best be settled by a direct approach to Respondent. Harris, according to
Kiefer and the others, acquiesced in Gearhardt's opinion. In addition, according
to Kiefer, Harris stated that the fact that the salesmen had joined the Union
did not mean that Respondent would at once recognize it as a collective bargain-
ing agent.
Considering the testimony of these witnesses, I find that although Harris'
acquiescence in Gearhardt's statements falls short of constituting interference,
restraint, and coercion within the meaning of the Act because unaccompanied by
a promise of reward or threat of reprisal, it does show that on January 17, if not
before, Respondent had knowledge that all its new-car salesmen other than
Gearhardt joined the Union.
Gearhardt, called as a rebuttal witness for the General Counsel,' testified that
following the union meeting on January 12, the Union was a constant subject
of discussion in the salesroom and that Harris was present during some of those
discussions , including one at approximately the time given by Kiefer, Glick,
Will, and Bowen, when Gearhardt said that the employees should have gone
to management before joining the Union, and Harris agreed with him.
Harris testified that the conversation above described did not occur. In view
of the testimony of all the other witnesses to the contrary, I am unable to accept
Harris ' denial as being in accord with the fact.
2. Circumstances surrounding the discharges
On Jauuary 23 Bowen, Levinson, Glick, Will, and Kiefer were called to Mc-
Carthy's office and told that they were discharged. McCarthy gave as his reason
that fewer new cars would be available for sale during 1951. With the depar-
ture of these individuals there were left in Respondent's employ four new-car
salesmen of whom Lutjen, Pilgrim, and Berkowitz were members of the Union,
and Gearhardt was not.
2 The Union had for some time represented Respondent 's shop employees.
Gearhardt, although 1 of the 4 new-car salesmen not discharged on January 23, left
Respondent 's employ the following October.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 1 the five dischargees went to Respondent's salesroom to obtain
commission checks due them which Harris distributed. Bowen, Glick, and Will
testified, in substance, that on this occasion as Harris handed them their commis-
sion checks Gearhardt, in Harris' presence, again told them that they were foolish
for having joined the Union, that he would bet $1,000 that the matter could still
be straightened out if they would forget about the Union and go in and see Mc-
Carthy, and that Harris, with reference to the Union's charge in this case filed on
January 25, said Respondent could drag the matter out for a year or more. Gear-
hardt testified that he might have made the offer to bet $1,000 but could not recall
whether Harris made any rejoinder to it except that Harris may have said that
the men could probably come back if they would forget about the Union. Kiefer
testified that on this occasion Harris stated that the former employees were
"foolish fellows" for joining the Union and that they should have come to him.
He could not recall what comment Harris had to make on Gearhardt's state-
ment, or if he made any at all, but he placed Harris as being present during the
conversation. Kiefer and other witnesses testified also that on this occasion
Harris said Respondent could make it difficult for them in obtaining other employ-
ment by not giving them recommendations. I do not credit Harris' denial of the
substance of the remarks attributed to him on February 1.
Summarizing the conversation in the salesroom on February 1, I find that
Gearhardt stated in the presence of Harris and the discharged employees that
the latter had been unwise in joining the Union, and that they could have their
jobs back if they deserted it, and that Harris acquiesced in this statement.
Kiefer's further testimony is that when he received a telegram from the General
Counsel requesting him to appear as a witness in this proceeding, Harris called
him to his office and advised him not to testify, stating that it might be embar-
rassing for him. Harris' construction of this incident is that Kiefer said it would
be embarrassing to himself if he testified, and that he advised Kiefer to use his
own judgment. I find Kiefer's account of this incident to be in accord with the
facts.
3. Respondent's defense to the discharges
The defense to the discharge of the five employees on January 23 is that it was
economically motivated because of Respondent 's belief that its allotment of new
cars from the Buick Corporation for the month of January 1951 and following
months would be less than for the previous December . McCarthy testified that
he was informed toward the end of December that the tentative allotment of cars
for January was 56, as compared with that of 78 for December, and that he had
been told that new-car production would be curtailed from 25 to 35 percent during
1951. In point of fact, Respondent received 54 cars of 1951 model in January
in addition to 21, 1950 models, or a total of 75. In February, Respondent received
64 cars of the 1951 model and in March 88. In November 1950, Respondent had
received 61 cars, all of the then current model , and in October, 70.
It is not disputed that about a week before the 5 men were discharged, or in
other words about January 18, 6 days after they had joined the Union, McCarthy
addressed the assembled salesmen and told them that he was afraid that Re-
spondent was going to have to reduce its staff of salesmen although he was not
then certain of the exact number to be let go. On January 30, 3 days before the
discharges , the new 1951 model was displayed in Respondent 's showroom. On
that date , according to McCarthy, influenced by the interest shown by prospective
purchasers indicating a seller's market, he concluded that he did not need 10
salesmen to sell the cars and determined to cut the number to 5. McCarthy then
consulted with Harris and asked for his recommendations as to which salesmen
MCCARTHY-BERNHARDT BUICK, INC. 1487
should be let go. As has been stated, Respondent decided to dispense with Glick,
Levinson, Will, Bowen, and Kiefer. All of these men had joined the Union on Jan-
uary 12. Respondent kept Gearhardt, the one nonunion salesman, and Pilgrim,
Berkowitz, and Lutjen, all union members. In May 1951, Respondent rehired
Kiefer at a time when, according to McCarthy, the demand for cars appeared to
be slackening and another salesman was needed in order to push their sale.
I do not find it necessary to analyze the various reasons advanced by Respond-
ent for selecting for discharge the five men named in the complaint, for I am of
the opinion that its decision to let five salesmen go was itself discriminatorily
motivated in the first instance. It is apparent from what has been said with
respect to the antiunion declarations of Gearhardt in the presence of Harris,
Respondent's sales manager, and with his approval, that Respondent was opposed
to its salesmen joining the Union. I have in mind particularly Harris' acquies-
cence in Gearhardt's statement to the five men when tiey returned for their com-
mission checks on February 1 that if they had not joined the Union, or if they
would forget about it and go in and see McCarthy, the "matter" could be
straightened out, and Harris' own statement in the same conversation that they
bad been "foolish fellows" in joining the Union.
Furthermore, I am not convinced that Respondent, when its decision to lay off
was made , was immediately concerned by the prospective allotment of cars for
January. McCarthy himself described this allotment as tentative. In point
of fact the actual number of cars received in January was only 3 under the num-
ber received in December. The number received in March was actually more
than those received in December. Respondent, of course, could not know at the
time he discharged the employees precisely how many cars he would receive
during the first few months of 1951. I am of the opinion, however, that Mc-
Carthy's professed fear that the allotment would be severely cut was exaggerated
and amounted to nothing more than a general apprehension . The evidence, such
as it is , that there was a prospect of a material reduction in cars rests on Mc-
Carthy's testimony related above. No correspondence or announcements to
that effect, for example from the Buick Corporation or from the Buick Division
in New York, from which Respondent received its cars, was introduced in evi-
dence. McCarthy testified that he received a tentative allotment from this latter
organization the latter part of every month, which "tries to show how many
cars I can get the following month." This apparently refers to something in
writing. No such communication received during the latter part of December
and applicable to January receipts, was offered in evidence. In this connection,
I observe that the salesmen worked on a commission basis alone , and I note Mc-
Carthy's admission that, because of this, if all 10 had been retained Respondent's
sales expense would have been no greater.
In view of these facts, I believe that Respondent, if it had been motivated in
laying off its employees solely by economic considerations, would have waited
to see how the new-car supply in 1951 was shaping up. I believe and find that
it did not do so, but instead discharged the five employees in question on January
23 because it was opposed to their joining the Union. In so discharging them,
Respondent discouraged membership in the Union and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and take certain affirm-
ative action which I believe will effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and
tenure of employment of Nat Glick, Richard Levinson, Raoul Will, Vincent
Bowen, and Robert Kiefer, I will recommend that Respondent offer these em-
ployees, with the exception of Levinson and Kiefer, immediate and full rein-
statement to their former or substantially equivalent positions' without prej-
udice to their seniority and other rights and privileges and make them whole
for any loss of commissions they may have suffered by reason of Respondent's
discrimination against them by payment to each of them a sum of money equal
to the amount of commissions they would normally have earned from January
23, 1951, the date of the discharges, to the date of the offer of reinstatement.
Loss of commissions will be computed on the basis of each separate calendar
quarter or portion thereof during the period from January 23, 1951, to the date
of a proper offer of reinstatement. The quarterly periods, herein called quarters,
shall begin with the first day of February, May, August, and November. Loss of
commissions shall be determined by deducting a sum equal to that which he
normally would have earned for each such quarter or portion thereof, his net
earnings,' if any, in other employment during that period. Earnings in one
particular quarter shall have no effect upon the back-pay liability for any other
quarter.'
With respect to Levinson, I recommend that Respondent make whole his legal
representative by payment to him of a sum of money equal to the amount of
commissions he would normally have earned from January 23, 1951, the date of
his discriminatory discharge, to November 26, 1951, the date of his death, less his
net earnings, if any, at other employment. As to Kiefer, I recommend that
Respondent make him whole by payment to him of a sum of money equal to the
amount of commissions he normally would have earned from January 23, 1951,
to the date of his reinstatement in May 1951.
In accordance with the Woolworth decision, I will recommend that Respondent,
upon reasonable request, make available to the Board and its agents all records
pertinent to an analysis of the amount due as commissions.
The unfair labor practices found reveal on the part of Respondent such a
fundamental antipathy to the objectives of the Act as to justify the inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless Respondent is required
to take some affirmative action to dispel the threat. I will recommend therefore
that Respondent cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case , I make the following :
A In accordance with the Board 's consistent interpretation of the term the expression
"former or substantially equivalent position" is interpreted to mean "former position
wherever possible and if such position is no longer in existence then to a substantially
equivalent position." See the Chase National Bank of the City of New York , ,San Juan,
Puerto Rico, Branch, 65 NLRB 87.
Crossett Lumber Company , 8 NLRB 440.
F. W. Woolworth Company, 90 NLRB 289.
PORT HOUSTON IRON WORKS, INC. 1489
CONCLUSIONS OF LAW
1. Local 259, United Automobile, Aircraft and Agricultural Implement Workers
of America, 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 employment of Nat
Glick, Richard Levinson, Raoul Will, Vincent Bowen, and Robert Kiefer, thereby
discouraging membership in a labor organization, Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Supplemental Intermediate Report
On April 9, 1952, 1 issued my Intermediate Report in the above-entitled
proceeding, finding that Respondent had committed unfair labor practices in
violation of Section 8 (a) (1) and 8 (a) (3) of the Act, and making certain
recommendations with respect thereto. The Intermediate Report recited the fact
that at the hearing, upon Respondent's motion, I dismissed the 8 (a) (5) allega-
tions of the complaint which asserted that Respondent had failed to bargain
collectively with the Union.
It appears, however, that upon granting this motion I did not state explicitly
my reasons therefor, although they seem to me to be implicit in the record.
Accordingly, the Board on November 20, 1952, issued an order referring the
proceeding to me and directing me to issue a Supplemental Intermediate Report
stating the basis for the dismissal of the 8 (a) (5) allegation of the complaint.
My reasons were as follows:
First: The Union made no demand upon Respondent to bargain with it as
representative of its salesmen. In reaching this conclusion I credited the testi-
mony of M. A. Edelman, attorney for Respondent, and did, not credit that of
Samuel Meyers, the Union's representative.
Second: Edelman had no authority to represent Respondent insofar as its
salesmen were concerned, nor did Edelman hold himself out as having such
authority. In arriving at this conclusion I credited Edelman's testimony.
PORT HOUSTON IRON WORKS, INC. and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMER-
ICA, AFL, LOCAL 968, PETITIONER . Case No. 39-RC--538. April
2,1953
Supplemental Decision and Certification of Representatives
On December 24, 1952, the Board issued a Decision and Direction
of Election 1 in the above-entitled case, in which it found appropriate
P Not listed in the published volumes of Decisions and Orders of the National Labor
Relations Board.
103 NLRB No. 132.