Merritt Motor Co.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 1099 (N.L.R.B. 1970)

MERRITT MOTOR COMPANY 1099
Merritt Motor Company and District Lodge No. 93,
International Association of Machinists and
Aerospace Workers, AFL-CIO; and Local Union
No. 912 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
merica . Case 20-CA-5437
April 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 10, 1969, Trial Examiner Louis S.
Penfield issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the supporting briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Merritt Motor
Company, Santa Cruz, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Trial Examiner: This proceeding
was heard before me in Santa Cruz, California, on July 1
and 2, 1969, upon a complaint of the National Labor
Relations Board, herein called the Board, and answer of
Merritt Motor Company, herein called Respondent.' The
issues litigated were whether Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended, herein called the Act.
Upon the entire record, including consideration of
briefs filed by the General Counsel and Respondent, and
upon my observation of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Merritt Motor Company is a California corporation
with a place of business located in Santa Cruz, California,
.where it operates as an automobile dealer engaged in the
retail sale and servicing of automobiles. During the past
year, in the course and conduct of its business Respondent
received gross revenues in excess of $500,000. During the
same period, in the course and conduct of such business,
Respondent purchased products and supplies valued in
excess of $50,000 which were shipped to it directly from
points located outside the State of California. I find that
at all times material herein Respondent has been an
employer within the meaning of Section 2(2) of the Act
engaged in a business which affects commerce within the
meaning of Section 2(6) and (7) of the Act, and that
assertion of jurisdiction over its business is appropriate
II. THE LABOR ORGANIZATIONS INVOLVED
District Lodge No. 93, International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the IAM, and Local Union No. 912, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Teamsters, are
each labor organizations within the meaning of Section
2(5) of the Act. As will be more fully explained below, the
two labor organizations engaged in a joint organizational
effort with respect to Respondent's employees, and
hereinafter will be referred to collectively as the Joint
Unions
III THE UNFAIR LABOR PRACTICES
The General Counsel alleges that shortly after the
commencement of an organizational campaign by the
Joint Unions in January 1969, Respondent engaged in
various acts of interference with the statutory rights of its
employees, and thereafter in February 1969,
discriminatorily discharged two of its employees. The
General Counsel further alleges that in January 1969 the
Joint Unions represented a majority of Respondent's
employees in an appropriate unit, and that Respondent
refused to bargain with it as the statutory representative
of such employees in violation of Section 8(a)(5) of the
Act Respondent denies engaging in the unlawful conduct
alleged, denies that the discharges were discriminatorily
motivated, and denies that at any time it became
obligated to bargain with the Joint Unions as the
statutory representative of its employees.
Respondent's only place of business is in Santa Cruz,
California. Carmen L. Merritt owns an automobile
dealership in this city and is engaged in the sale and
'The complaint issued on May 19, 1969, and is based upon a charge, a
first amended charge, and a second amended charge filed on February 14,
March 24, and April 14, 1969, respectively Copies of the complaint, the
charge and the amended charge were duly served upon Respondent
181 NLRB No. 172
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
servicing of new and used automobiles It is agreed that at
all times material prior to and including February 10,
1969, James Baughman was the service manager in charge
of Respondent's service department, and was a supervisor
within the meaning of the Act. It is further agreed that at
all tunes subsequent to February 10, Earl B Brown was
Respondent's service manager and was also a supervisor
A dispute, the nature of which will be discussed below,
exists concerning Respondent's responsibility for certain
acts allegedly engaged in by Brown on February 10, 1969.
Robert Edward Peterson was at all times in charge of
Respondent's parts department, and Clinton Giese served
as Respondent's assistant service manager A dispute
exists as to the supervisory status of each of these
employees. This too will be considered below.
A. The Organizational Efforts of the Joint Unions
and Respondent's Initial Response
On January 6, 1969, the Joint Unions initiated an
organizational drive among employees engaged in the
automotive trades in the city of Santa Cruz. It opened this
drive by announcing a special meeting for interested
automotive employees to be held at 7:30 p.m., January 9,
1969, at the Santa Cruz Labor Temple An advertisement
concerning such meeting appeared in a Santa Cruz daily
newspaper, and union representatives undertook to
distribute pamphlets in the various automotive shops in
Santa Cruz telling of the meeting and its purpose.
Unidentified union representatives distributed such
pamphlets in Respondent's service department, leaving
copies at locations in which they were likely to be seen
and picked up by the employees. The notice stated, in
substance, that the meeting would be held on the following
Thursday, January 9, that the Joint Unions had received
inquiries as to improvements which automotive employees
might obtain in wages, working conditions and fringe
benefits, that questions concerning such subjects would be
taken up at the meeting, and that all persons performing
work in designated automotive trade classifications in and
about the city of Santa Cruz should attend. These notices
were picked up and read by mechanics in Respondent's
service department, and also came to the attention of
Merritt and Service Manager Baughman.'
In the afternoon of January 6, Merritt directed Service
Manager Baughman to ask the service department
employees to attend a meeting after work. Four service
department employees, Robert A. Carter, James E.
Littlefield, Steven Wargin, and Lynn Schultz testified
concerning the events which transpired at this meeting. All
'Merritt's testimony with regard to this pamphlet fads to engender
confidence in his straightforwardness When first shown the pamphlet at
the hearing he responded "that he never saw that document " Later he
could not recall having had such a document with him at an employee
meeting that evening Subsequently he admitted that he "may have" gotten
a copy of the document , that the document and its contents had been fully
discussed at a luncheon meeting of automobile dealers on June 6, 1969,
which Merritt had attended, and that he "looked at it " Merritt continued
to insist , however, throughout his entire testimony that he "didn't actually
read it " I regard it as highly improbable that one as obviously interested
in the organizational efforts of his employees as Merritt demonstrated
himself to be would actually have maintained the casual interest in the
contents of this initial pamphlet that Merritt now asserts The pamphlet is
a very short one and could be read in a minute or less In view of Merritt's
reluctant admission that he was given a copy of it on the morning of
January 6 and that it was the subject of discussion at a dealers ' luncheon
that same day, I have little doubt that at some point during the, day of
January 6 Merritt read it carefully and became entirely familiar with its
contents , and I so find
four testified, consistently, that Merritt arrived at the
meeting with a copy of the union pamphlet in his hand,
and they all agree that Merritt made it abundantly clear
that a central purpose of the meeting was to ascertain
their reaction to the union 's organizational drive. They
further agree that a substantial portion of the meeting was
taken up in discussion of one sort or another relating to
union representation of the employees. Each testified that
Merritt informed them that he did not favor having a
union in the shop. Merritt asked Littlefield as "an old
union man; what did [he] think about the union."
Littlefield replied that "he had a union card, and he didn't
plan on giving it up for anybody." All agree that Merritt
told the employees that should a union come in they
would receive no more overtime. Working overtime was
not an infrequent occurrence. At the time there were two
apprentice mechanics in the shop. The four employees
testified variously to the effect that Merritt had told them
that if a union came in he "wouldn't allow no
apprentices," "any excess [of apprentices] would have to
be let go," "he would let go all the employees," "he
would eliminate all apprentices."' The employees also
state that Merritt told the group that with a union they
would be sent home when a job was completed and there
was not another to start. It was then the regular practice
for the mechanics to do clean-up work until quitting time
when this occurred. Employee Carter states that Merritt
also spoke of job security and, according to Carter, said,
"if we didn't go union he would definitely in the future try
to weed out the troublemakers and instigators . ," and
that this could be done by checking back into their
records.'
Following these various expressions about a union,
Merritt proceeded to tell the employees that he was
considering adjustments in their wage rates, and that in
the very near future he would speak to them about this.
Merritt concluded the meeting by telling the group that he
didn't care if some of them went to the union meeting but
he felt it would be better if all did not go.
On the following day, January 7, Merritt approached
each of the employees in the service department
individually, and offered each a raise varying from 5 to 40
cents an hour. At the same time Merritt proposed to
reduce the individual employee contribution to
Respondent's health and welfare plan from $17 to $3.25 a
month. The employees discussed Merritt's proposals
among themselves and agreed that they should seek
another meeting with Merritt at the close of business on
January 7. Such a meeting took place with Lynn Schultz
speaking for the group. Schultz told Merritt that the
employees were pleased with the new salary increase and
the improved fringe benefits, but were also requesting an
additional 5 percent wage increase in six months. Merritt
responded by telling the employees that he would consider
this at the expiration of a six-month period Thereafter the
increases were put into effect.
Respondent acknowledges granting the wage increases
and increasing the fringe benefits. Merritt, Service
Manager Baughman and Parts Manager Peterson all
'Merritt does not deny having mentioned the subject of apprentices but
contends that he only said that with a union there is "one apprentice for
every five mechanics " Since at the time Respondent had two apprentices
to less than five mechanics this could reasonably be construed to mean that
with a union there would be fewer apprentices
'Merritt acknowledges having talked about the question of job security
under a union but insists that he only pointed out that it was basically a
question of good performance , and that workers who were not performing
well could be let go whether there was a union in the shop or not
MERRITT MOTOR COMPANY 1101
attended the January 6 meeting. No one of them
specifically denies what the employees state to have taken
place, but each endeavors to make it appear that mention
of a union was incidental, and that the real purpose of the
meeting was to announce an earlier planned wage
increase. Merritt also describes the meeting for the most
part as a "general pep session."
Two of the employees who testified concerning the
January 16 meeting were alleged discriminatees, but the
other two were still working for Respondent. All four
testified with remarkable consistency as to what had
transpired. No one of them displayed overt hostility
toward Respondent, and each impressed me as
endeavoring to relate objectively the events that had
occurred as best he remembered. In contrast, each of
Respondent's witnesses appeared to be attempting to
underplay the significance of the union aspects of the
meeting. Under the circumstances I am of the opinion
that the versions related by the four employees, as set
forth above, are the more reliable, and I find that events
transpired at the January 6 meeting substantially as they
state.
Not one of Respondent's employees attended the
announced union meeting for January 9. Employee Steve
Wargin testified that they did not go "because the people
that were going to go were more or less satisfied with
what [Merritt] gave us." On the evening of January 9,
however, following the union meeting employees Wargin
and Schultz met, apparently by chance, representatives of
the Joint Unions in a bar A discussion ensued concerning
union representation and the possibility of arranging
another meeting to be attended solely by Respondent's
employees. Thereafter Schultz induced a number of
Respondent's employees to attend a meeting with
representatives of the Joint Unions at the Labor Temple
on January 13. There is no direct evidence to show that
the efforts of Schultz in arranging this meeting came to
the attention of Respondent, however, or that Respondent
was apprised at any time of the names of those employees
who actually did attend.
Seven of Respondent's employees went to the January
13 meeting. IAM representative Kent Arnold talked with
these employees concerning the benefits of union
organization, answered some questions which they asked
him, and asked if they wished to sign union authorization
cards. Arnold testified that he explained that the union
cards were for the purpose of authorizing the Joint Unions
to represent the employees for the purposes of negotiating
a collective-bargaining agreement with Respondent.
Arnold further explained that if a majority should sign
such cards the Joint Unions would then undertake to
notify Respondent of such fact, would demand that
Respondent recognize the Joint Unions as the statutory
representative, and would offer to have the authenticity of
the cards checked by an independent source. Arnold
explained that Respondent, however, might decline to
accord the Joint Unions recognition at the outset, and
might demand that the Joint Unions prove their majority
status by means of a Board election. All seven of
Respondent's employees thereupon signed authorization
cards.'
'The seven who signed included Steven Wargin, Richard Gempler,
Robert Hernandez , Ronald Fossum, Robert Carter, Lynn Schultz, and
James Littlefield The cards, themselves purport to designate the IAM as
the bargaining representative A representative of the Teamsters, however,
was also present at the meeting It is undisputed that it was fully explained
to the employees that by signing such cards they were authorizing the Joint
On January 21, 1969, the Joint Unions sent a letter to
Respondent advising it that they represented a majority of
Respondent's service department employees, and offering
to prove such majority by a cardcheck to be conducted by
a disinterested third party. On January 23, Respondent
replied to this request by advising the Joint Unions that it
did not concede that they represented a majority, and that
if the Joint Unions wished to establish this fact it would
be necessary to do so by means of a representation
election. The reply further stated that pending proof of
majority by election Respondent would not meet with the
Joint Unions.
Employees Littlefield and Schultz each testified that
Service Manager Baughman had questioned him
concerning his attendance at a union meeting. Baughman
admits questioning most of the employees Neither
Baughman nor any of the employees, however, are specific
as to the exact timing of the questioning, or as to its
specific nature. Apparently it took place after Respondent
learned that the Joint Unions were claiming a majority.
This would place it some time after January 21. All
concerned construed the questioning to relate to the
January 9 general union meeting. In response thereto each
told Baughman, correctly, that neither he nor any of the
other employees had attended. It is not shown that
Baughman asked specifically about any other meeting,
including that of January 13, or that either Littlefield,
Schultz or anyone else advised Respondent that such a
meeting had taken place, or that at such meeting a
number of employees had signed authorization cards
On January 31, 1969, the Joint Unions filed a
representation petition seeking to represent the employees
in Respondent's service department. On May 26, 1969, the
Joint Unions voluntarily withdrew such petition.
B. The Alleged Discriminatory Discharges of Robert
Carter and Lynn Schultz
Robert Carter and Lynn Schultz were both terminated
on February 10, 1969.
Carter was first employed by Respondent on September
12, 1968. His initial pay was $1.75 per hour, and he was
classified as a washer and polisher of new and used cars.
Carter, however, had had considerable experience as an
automotive mechanic prior to coming to work for
Respondent, and he was advised when employed that if an
opportunity to do mechanical work should open he would
be given work in the shop. At some point in October
1968, Carter was assigned work as a mechanic in the
shop, and his pay was raised from $1.75 to $2 per hour.
Subsequently in November of the same year he received
another raise to $2.20 per hour A third raise was
forthcoming on January 7, 1969, to $2.50 per hour at the
time when all other mechanics were accorded raises as set
forth above. Respondent's records continued to show
Carter's payroll classification as a washer and polisher,
but Respondent made no attempt to contradict Carter's
testimony that since October 1968 his actual employment
with Respondent had been as an apprentice mechanic, nor
does Respondent claim that Carter was not a competent
worker.
Lynn Schultz commenced work for Respondent on
August 26, 1968, as a journeyman mechanic. Schultz
continued to work in that capacity until his termination. It
Unions to represent them for collective-bargaining purposes , and that if
recognition should be attained union membership would be in the
particular union in whose jurisdiction the employee's work should fall
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is conceded that Schultz was a competent worker.
James Baughman had worked for Respondent for a
number of years, principally in the capacity of a
journeyman mechanic. He became assistant service
manager in July 1968. In August or September of that
same year he succeeded Earl B . Brown as service manager
in complete charge of the service department when Brown
left Respondent's employ to take another job. Baughman
was highly regarded by Respondent as a mechanic, and
when he assumed the job as service manager there was a
tacit understanding that he might resume work as a
mechanic if the supervisory job did not prove satisfactory.
In the late Fall of 1968 Baughman concluded that the
position as service manager did not please him, and he
notified Merritt to such effect. At approximately the same
time Merritt was also notified by Brown that his new
employment had not worked out as he expected, and that
he was interested in returning to work for Respondent
should an opening as service manager develop. In January
1969, Merritt and Brown reached an understanding that
Brown was to return to work for Respondent as service
manager at an early date. It was also understood that
concurrently with Brown's return Baughman would step
down and resume work in Respondent's shop as a
mechanic. When it developed that Brown could return in
early February it was agreed that he would resume his job
as service manager on the first workday following
February 10, 1969.
Merritt and Baughman testified that they had agreed
among themselves that with Brown's return and
Baughman 's resuming work as a mechanic in the shop, it
would be necessary to terminate one journeyman
mechanic. They state that they further agreed at the same
time that business in the shop was at a sufficiently low
level, that it would also be appropriate for Respondent to
lay off one of the apprentice mechanics concurrently with
the layoff of the journeyman mechanic. Baughman was
given the authority to select the particular mechanics to be
terminated subject to Merritt's review of his selection.
On the morning of February 10, Baughman 's last day
as service manager , Baughman . approached Robert Carter
and told him that he was "going to have to lay [him] off
due to the fact, lack of work." Carter protested claiming
that an employee with less seniority should be chosen.
Baughman made no specific response to Carter's protest
except to tell Carter that he would give him a good
recommendation.,
In the late afternoon of February 10, Baughman told
Schultz that with the return of Brown as service manager,
he, Baughman would resume work in the shop as a
mechanic and that one of the journeymen mechanics
presently working there would have to go Schultz
protested that he should not be the one selected,
complaining that he had more seniority than Jim
Littlefield, another journeyman mechanic Baughman
replied that Littlefield had worked for Respondent prior
to his most recent employment, and that taking this into
consideration he had seniority over Schultz.' Baughman
acknowledged that Schultz' work had been satisfactory
and agreed that Schultz be given a good recommendation
'Robert Hernandez was employed as an apprentice mechanic on January
10, 1969 . He continued to work in that capacity until May 29, 1969, when
he voluntarily quit Prior to this, Hernandez had had approximately a
week 's employment with Respondent, commencing on September 25, 1968,
and ending on October 3, 1968, at which time Hernandez had voluntarily
quit
'James Littlefield was most recently employed by Respondent as a
Both Schultz and Carter were told that they had been
selected as the persons to be laid off on a seniority basis
Schultz can be accorded seniority over Littlefield only by
cumulating Littlefield's prior worktime with his present
worktime. This result is achieved by adding 9 months of
employment taking place nearly 2 years prior to
Littlefield's recent employment. The selection of Carter,
however, cannot be explained on a cumulative seniority
basis inasmuch as Hernandez' cumulative seniority does
not exceed that of Carter
With respect to Schultz, Baughman testified at the
hearing that the choice also had been influenced by the
fact that Schultz "didn't get along as well with the rest of
the crew as Jim Littlefield." To illustrate this, Baughman
could cite only one incident which occurred in October
1968 at which time Schultz had gotten angry with another
employee who had been using his stall. Baughman
acknowledges that he did not speak to Schultz at that
time about this incident, nor did he mention it to Schultz
at the time of his termination.
Both Baughman and Merritt testified that a slowdown
of work in the service department was the primary
consideration dictating the need to lay off an apprentice
mechanic The testimony of both Baughman and Merritt
in this regard is of a most general nature. Records were
produced showing the service department gross sales and
profits not only for the first months of 1969, but for the
entire year 1968. It appears therefrom that during the first
7 months of 1968, Respondent had had seven mechanics
in its service department, while in the last 5 months it had
had eight mechanics. During the first 7 months,
Respondent's gross sales in the service department had
ranged from a low in February of $8,737 to a high in July
of $11,428 During the next five months the gross sales of
service ranged from a low in November of $10,019 to a
high in September of $11,932. In January 1969, gross
sales for Respondent's service department amounted to
$10,808. In February 1969, gross sales for the service
department amounted to $9,587. Respondent employed
seven mechanics in January 1969. In February after the
two layoffs had occurred and Baughman had returned to
work as a mechanic, the total number dropped to six.
However, it may be noted that gross sales for January
exceeded all but 5 months during the entire year of 1968
and gross sales for February 1969 exceeded gross sales in
January, February, March and May of 1968 In each of
these months in 1968, Respondent had maintained a
complement of seven mechanics.
C. The Alleged Unlawful Conduct of Elmer Brown
on February 10, 1969
At the close of business on February 10, the same
workday that had marked the terminations of Carter and
Schultz, the remaining employees were called to a
meeting. Merritt introduced Elmer Brown to the
employees as the incoming service manager who would be
directing their work on the next workday. Brown then
spoke to the assembled employees on the subject of what
they might expect from him, and what he would expect
from them as their new boss At some point during the
course of this meeting, Brown brought up the subject of
whether or not the employees "had considered union."
journeyman mechanic on November 11, 1968, approximately 3 months
after Schultz had started to work Prior to this, however , Littlefield had
worked for Respondent from April 15, 1966 to November 18, 1966, at
which time he had voluntarily quit
MERRITT MOTOR COMPANY
Brown was advised by various employees that the matter
had been under consideration. One of the employees noted
that Schultz and Carter had been terminated earlier that
day, and that some of them felt that a union might bring
greater security According to Littlefield, Brown signified
that he had recently been working in a union shop, and
that, a union provided nothing by way of job security and
"that he wouldn't have any problems finding reasons to
let us go in the future with or without a union " because
"he would go back into the past record ... and find the
evidence he would need." Littlefield states further that
Brown indicated that should a union come in he would be
"a little more severe." Steve Wargin testified that Brown
told the assembled group that he had heard "We were
thinking of joining the union; and he told us to be our
own men and think about it." Wargin states that he was
the one who raised the question as to job security with a
union and that Brown 's reply was that a union provided
no security since "he could look back and find enough to
can anyone of us." When Wargm protested such an
approach to be unfair, Brown replied, in effect, that if that
was the way a matter had to be handled that was the way
he would do it. Brown does not deny bringing up the
question of unions at this meeting, nor does he specifically
deny the remarks which Littlefield and Wargin attribute
to hurt
Respondent raises an issue as to its responsibility for
Brown 's conduct at the February 10 meeting , claiming
that Brown was not at that time on its payroll as service
manager. While it is true that Brown may not have been
technically carried on Respondent's payroll until the next
working day, Respondent can scarcely disclaim
responsibility for his conduct on February 10. The
meeting was expressly called by Merritt to introduce
Brown to the employees as their new boss. The meeting
was then turned over to Brown to address them as to what
they could expect from him and what he would expect
from them. Under the circumstances, the fact that he was
not officially on Respondent's payroll scarcely refutes the
obvious fact that at this time Brown was represented and
identified to the employees as a part of management.
Accordingly I find that Respondent must assume
responsibility for his conduct.
The testimony of Littlefield and Wargin as to what
transpired at the February 10 meeting is mutually
corroborative. I am satisfied that it constitutes a more
reliable gauge of what occurred, than the obviously
underplayed and uncorroborated testimony of Brown
Accordingly I credit the versions of Littlefield and Wargin
and find that events at the February 10 meeting transpired
substantially as set forth above.
D. The Appropriate Unit, the Majority, and the
Refusal to Bargain
Respondent stipulated a unit comprised of its service
department employees, excluding supervisory and clerical
employees to be appropriate for purposes of collective
bargaining. Respondent acknowledges that on January 21,
1969, ten employees, then on its payroll, fell within the
scope of such unit. ' I find the stipulated unit to be
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
'These included Curtis Waller, Starr Plaskett, Gary Giles, Steven
Wargin, Lynn Schultz, James Littlefield , Robert Hernandez , Richard
Gempler, Ronald Fossum, and Robert Carter
1103
A dispute exists as to the status of Robert Peterson and
Clinton Giese. The General Counsel contends each to be a
supervisor, and thus to be excluded from the unit, while
the Respondent contends that neither possesses
supervisory authority within the meaning of the Act. The
evidence shows Peterson to be in full charge of the parts
department and to direct the work of one employee.
Peterson attends meetings of management, his
recommendations are considered by management, and he
generally appears to be regarded by Merritt as one of the
management team. Accordingly, I find Peterson to possess
sufficient indicia of supervisory authority to qualify him as
a supervisory employee within the meaning of the Act,
and thereby to exclude him from the scope of the unit.
Clinton Giese, the assistant service manager, assigns some
work to mechanics, but this appears to be incidental to his
principal job of meeting the customers and properly
writing up their orders so that mechanics may understand
the work which must be dcne. I am satisfied that the real
direction and authority over the mechanics' work resides--
in the service manager alone, with Giese doing little more
than making routine assignments. Accordingly, I find
Giese not to be a supervisor within the meaning of the
Act, and that he should be included within the scope of
the bargaining unit
As above noted, seven of Respondent's employees
attended a meeting on January 13 and signed
authorization cards. On their face, these cards purport to
designate the LAM as the collective-bargaining
representative. However, it is undisputed that a
representative of the Teamsters was also present at this
meeting, and that it was made clear to the employees that
by signing the LAM authorization cards they were
designating the Joint Unions to represent them on a joint
basis with the employees to become members of whichever
union his particular job dictated. This was followed by a
request for recognition by the Joint Unions, and later by
their filing a representation petition also on a joint basis.
Each of the seven employees who signed authorization
cards on January 13 was employed by Respondent in the
appropriate unit on January 21, 1969.' Accordingly, I find
that on January 21, 1969, when the Joint Unions
requested recognition a majority of Respondent's
employees in a unit appropriate for purposes of collective
bargaining had designated the Joint Unions as their
bargaining representative."
As set forth above, Respondent, in response to the
request for recognition by the Joint Unions, refused to
accord them such recognition until their status as the
statutory representative had been determined by the
Board.
E. Discussion of the Issues and Conclusions
The central issue in this proceeding concerns the lawful
or unlawful character of Respondent's response to the
organizational drive initiated in January 1969 by the Joint
Unions.
As set forth above, upon learning that such drive was
about to start, Merritt acted immediately and directly. On
the very day that Merritt learned of the initial
'These seven include Steven Wargm , Richard Gempler, Robert
Hernandez, Ronald Fossum, Robert Carter, Lynn Schultz, and James
Littlefield
"It may be noted that even if both Peterson and Giese be regarded as
falling within the scope of the appropriate unit, the Joint Unions would
still have represented a majority on January 21
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational plan he called the service department
employees together, and addressed them regarding union
organization. As more fully set forth and found above, not
only did Merritt at this time express his opposition to
unionization of the service department, but he threatened
that should it occur it might result in loss of overtime,
elimination or reduction in the number of apprentices, and
a cutback in the amount of paid clean-up work. He
coupled these threats with a promise of a wage increase
He followed up such promise the very next day by
granting each employee an increase in hourly pay, and a
substantial reduction in individual employee contributions
to Respondent's health and welfare plan.
Respondent undertakes to deny that the wage and
fringe benefits granted had any relationship to the
organizational drive of the Joint Unions. Respondent
claims such benefits to have been long-planned, and would
have us believe that their announcement on the same day
that the Joint Unions initiated their organizational efforts
was purely coincidental. It is asserted that Respondent
had promised the service department employees in the late
fall of the preceding year that wage increases would be
forthcoming after the first of the next year Respondent
points out that its wage scale was then below that in
nearby Santa Clara County, that it faced the likelihood
that qualified mechanics might be lured away by a higher
wage scale, and that to avoid this it had promised future
adjustments. No doubt in the Fall, some of the mechanics
had made inquiries regarding wage increases . However,
Respondent's response at that time went no further than
to express in a general way that adjustments might be
forthcoming at some undetermined time after the first of
the following year. It is not shown that any mechanics
threatened imminent departure should increases not be
immediately forthcoming Nor does it appear that by the
first week in January Respondent had worked out a
definitive plan, or established a definite timetable for
whatever projected increases it might have been
considering . On the contrary, we find Respondent
asserting in another connection that January was a
particularly slow time in the service department. It thus
seems likely, that absent extraneous circumstances,
Respondent would have been content to let the matter of
increases ride until business showed signs of picking up.
January 6, however, marked Respondent's first knowledge
of union organizational efforts directed at its employees.
As we have seen , without delay, Respondent initiated
inquiries as to the interest of its employees in
organization , and threatened to cut down on existing
benefits should they choose a union. It coupled this
conduct with the announcement and implementation of
substantial wage and fringe benefits. The inference is all
but inescapable that, like the threatened losses, the
increases were promised and granted less in fulfillment of
an earlier and vaguely expressed promise, than as an
integral part of a calculated plan to undermine the
organizational efforts of the Joint Unions before they had
had a chance fully to get underway, and I so find.
Threats to withdraw existing benefits, and promises of,
and the conferring of, new benefits, each with an object of
discouraging union organization , constitute the most
obvious sort of interference with the Section 7 rights of
employees. Accordingly I find that Respondent' s initial
response to the announcement of the organizational drive
of the Joint Unions was unlawful, and that by the threats
made and the benefits conferred, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
While Respondent's unlawful conduct at the inception
of the organizational drive was of a nature reasonably
calculated to dissipate interest in union organization, it
does not appear to have had such effect immediately.
Although on January 7, the employees had unanimously
expressed themselves as satisfied with the increases
Respondent was giving them, on January 13, seven signed
cards designating the Joint Unions as their bargaining
representative. As above noted, it is not shown that
Respondent learned of this meeting, or of the fact that the
Joint Unions were claiming majority representation until
it received the letter dated January 21. The terminations
of Carter and Schultz on February 10 came shortly after
Respondent had refused to recognize the Joint Unions,
and after the Joint Unions had further pressed their claim
for recognition by filing a representation petition. The
General • Counsel contends, that the timing of these
discharges considered in conjunction with Respondent's
earlier unlawful opposition to union organization, and the
allegedly unconvincing explanations given therefor
establishes that each termination was discriminatorily
motivated. General Counsel further contends that
Respondent's entire course of unlawful conduct suffices to
establish that its refusal to bargain with the Joint Unions
was also unlawful.
While Schultz did act as spokesman for the employees
at the meeting with Merritt on January 7, this in no way
served to identify him with a union . No one of the
employees, with the possible exception of Littlefield, was
identified with, or expressed interest in, a union at that
time. On the contrary, the role that Schultz played was to
speak both for himself and the other employees in
expressing their unanimous satisfaction with the increases
which Respondent proposed. There is no direct evidence
to show that subsequent to this Respondent learned that
Schultz had had a change of heart, or that subsequently
Schultz became the prime mover in arranging the January
13 meeting Although Baughman did query Schultz and
others concerning their attendance at a union meeting,
everyone apparently construed his questions to refer to the
first general meeting In any event , Baughman 's queries
elicited only negative replies which in no way suggested
union interest or activity on the part of Schultz. The
return of Brown as service manager, and Respondent's
commitment to keep Baughman as a journeyman
mechanic are not shown to be related to union
organization in any way. With Baughman joining the
ranks of the mechanics , it is reasonable that Merritt might
conclude that the business could function with one less
journeyman mechanic than before. If the termination of a
journeyman appears lawfully motivated, we must' consider
whether the choice of Schultz rather than someone else
has a discriminatory cast. Neither the seniority nor the
incompatibility explanations which are proffered by
Respondent as explanations for its choice are satisfying I
doubt very much that Respondent had a well-defined
seniority policy, and I regard its assertion of cumulative
seniority as an explanation for choosing Schultz over
Littlefield as little more than an afterthought. In addition,
the assertion of cumulative seniority is inconsistent with
the standard which we find Respondent applying in the
case of Carter. Schultz' alleged incompatibility with his
fellow-workers as a further explanation is not only
inconsistent with the seniority explanation, but is also
something never told to Schultz at any time. Moreover,
the incident cited is so trivial and so remote from the
discharge itself that it too seems little more than an
afterthought. Flimsy explanations offered to explain a
MERRITT MOTOR COMPANY 1105
course of conduct naturally give rise to suspicions of
undisclosed reasons. On this record, however, I find
insufficient evidence to support a finding that any such
reason may have been discriminatory. The all-pervading
facts are that Respondent had an altogether legitimate
reason for terminating one jo'rneyman at this time, and
that it has not been demonstrated that Respondent was
aware of Schultz' organizational efforts on behalf of the
Joint Unions On the contrary, to the extent that known
union affiliation may be claimed to have influenced the
choice, Littlefield as the only employee known to have
had union connections would appear as the more likely
selection. While unsatisfactory explanations arouse
suspicions of hidden, unlawful motivation, the latter
cannot be a matter of conjecture, but must be established
by solidly based inferences which reasonably point in that
direction. I am not convinced that the evidence adduced in
this record is sufficient to accomplish such result.
Accordingly I find the termination of Schultz to have been
lawful, and that thereby Respondent did not discriminate
against Schultz in violation of Section 8(a)(3) of the Act.
The justification for Carter's termination on February
10 purports to be economic Respondent claims that
business in its service department was so slow at that time
that a cutback of one apprentice mechanic was dictated. A
comparison of the 1968 and 1969 gross sales and profits
for the service department does little to support such a
claim If anything, the business in 1969 seems to have
been slightly better than in the preceding year when
Respondent at all times managed to keep the level of
mechanics to seven or more. Dubious economic reasons
advanced for the need of any layoff at this time, however,
do not necessarily establish Respondent's action to have
been discriminatorily motivated. We do not pass on the
soundness of an employer's business judgment, although in
some cases where the exercise of such judgment strains
credulity, it may suggest a possible pretext Respondent's
unlawful, although seemingly unsuccessful, effort to
discourage union activity a month earlier, establishes its
hostility toward union organization, but without more, it
falls short of proving discriminatory motivation for the
termination . Carter engaged in no union activity other
than signing the authorization card, and it is not shown,
that on February 10, Respondent had-knowledge that
Carter or any other identifiable employee had even done
that. Thus, although the underlying economic need for the
layoff of another mechanic at this time is open to
question, there is little to show that the decision was
related to organizational activity. Respondent's choice of
Carter over Hernandez while raising a suspicion of
discriminatory selection in view of Carter's apparent
seniority falls short of establishing this as a conclusion.
Hernandez and Carter had both signed union cards on
January 13 along with five others. As we have said it is
nowhere shown that this fact had come to Respondent's
attention, or that any other circumstance existed which
would lead Respondent to believe that Carter was more or
less active than Hernandez Thus while I regard it as
somewhat perplexing that Respondent should elect to lay
off an additional mechanic, I regard the evidence in this
regard as insufficient to support the conclusion that
Respondent did so, or that it chose or selected Carter for
unlawful reasons. Accordingly I find that the General
Counsel has not sustained the burden of proof in
establishing that Robert Carter was discriminatorily
discharged within the meaning of Section 8(a)(3) of the
Act.
As a part of its remedy the Board in certain instances
directs bargaining orders where the majority has been
established by use of authorization cards rather than by
the election process Until recently the Board frequently
expressed the rationale of a bargaining order remedy in
terms of the employer's lack of good faith doubt as to a
union's majority. Following the decision of the United
States Supreme Court in N L R B v Gissel Packing Co ,
395 U.S 575, the Board now seems to place primary
reliance upon its evaluation of the quantity and quality of
the unlawful conduct in which an employer has engaged,
and the likelihood that such conduct will interfere with the
free choice of representatives It is reasoned that in
situations where such conduct is extensive and aimed
directly at the employees' right of free choice, the card
designations become the more reliable means of
determining the employees' wishes In Gissel, the Supreme
Court stated its views, in part, as follows:
The only effect of our holding here is to approve the
Board's use of the bargaining order in less
extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine
majority strength and impede the election processes.
The board's authority to issue such an order on a lesser
showing of employer misconduct is appropriate, we
should reemphasize, where there is also a showing that
at one point the union had a majority; in such case, of
course, effectuating an ascertainable employee free
choice becomes as important a goal as determining
employer misbehaviour In fashioning a remedy in the
exercise of its discretion, then, the Board can properly
take into consideration the extensiveness of an
employer's unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future. If the Board finds that the
possibility of erasing the effects of past practices and of
insuring a fair election (or a fair re-run) by the use of
traditional remedies, though present, is slight, and that
the employees' sentiment once expressed through cards
would on balance be better protected by a bargaining
order, such an order would issue.
In the light of the foregoing rationale had either of the
layoffs here been found to have been discriminatorily
motivated, the instant case would have presented an
almost classic pattern of pervasive and aggravated
unlawful conduct calculated to undermine majority
strength and to impede the election process. In such a case
a bargaining order would, without question, become the
appropriate remedy inasmuch as it has been found above
that the Joint Unions represented a majority in an
appropriate unit at the time Respondent refused to
bargain with them. Having found, however, that the
layoffs were lawful, we must evaluate both the nature and
timing of the other unfair labor practices to determine if
the "extensiveness . . . in terms of their past effect on
election conditions" and "the possibility of erasing the
past practices and of insuring a fair election" need to be
remedied by a bargaining order rather than by a cease and
desist order
We must first note that the unlawful conduct found to
have occurred on January 6 and 7 is by no means of a
minimal or insubstantial nature Threats to take away
existing benefits should a union come in to the plant
especially when, as here, they are coupled with new and
substantial wage and fringe benefits offered as an
inducement to keep a union out, strike at the very heart of
the employees' right to choose a representative without
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer interference. Respondent's unlawful conduct was
both designed and calculated to head off successful
organization before it even had a chance to get started.
We are, however, presented with an unusual circumstance
in the instant case, inasmuch as following unfair labor
practices of this nature, we nevertheless thereafter find
employees attending a union meeting and a majority
signing authorization cards. It is arguable that this timing
demonstrates that the employer's misconduct, whatever its
nature, has not interfered with an employee expression of
choice and that therefore the situation is not one in which
it has been demonstrated that there is a "tendency to
undermine the majority strength and impede the election
processes." While such an argument has a surface
plausibility, I am not satisfied that it will withstand
scrutiny.
The Board, as do the courts, recognizes an election to
be the most reliable means for employees to choose a
representative under ordinary circumstances. However, it
will not permit an employer to benefit from his unfair
labor practices where his own unlawful conduct is such
that it has rendered the possibility of a free choice in an
election unlikely. The Board, however, has long
recognized that the remedy of a bargaining order is not to
be imposed lightly. Thus where an employer's unfair labor
practices stand out as relatively inconsequential or not
sufficiently directed at interfering with a free choice, a
cease and desist order is all that will issue." We have
already noted the unfair labor practices occurring on
January 6 and 7 to have been far from inconsequential
and to have been aimed directly at interfering with
employee free choice Had they occurred following the
request of the Joint Unions for recognition I would
without hesitation find them to be of a nature calculated
to dissipate the majority, and to have rendered free choice
in a subsequent election unlikely. Can it be asserted that
merely because the employees signed authorization cards
following unfair labor practices of this nature, free choice
in an election is any more likely? Is there any reason to
regard unfair labor practices of the same nature as likely
to have less serious or less lasting effects because they
took place just as organizational efforts were getting
underway? I am satisfied that the designation of a
bargaining agent following such unfair labor practices
does no more than render the true effect of the unfair
labor practice a matter of speculation The central fact
remains, and it appears equally viable whether the
unlawful conduct occurs before or after the designation,
that the employer by his own act has created a situation
in which it is still uncertain whether the employees can
freely choose a representative by use of the election route
In the instant case Respondent's opposition to union
organization had been expressed, its threats had been
made, its benefits had been conferred. At the moment of
signing the authorization cards, the employees may have
regarded this as of insufficient consequence to withhold
the designation , but this scarcely insures that as long as
the unfair labor practices remained unremedied, the
employer's preference and threats may not once again
have reasserted themselves, and that at the ballot box
discretion may not have become the better part of valor
and have affected the choice The Board has never sought
to evaluate the subjective impact of an employer's
misconduct. The Board has always relied upon the nature
of the employer's conduct and the effect that it is
reasonably calculated to have on employees Whether an
employer's conduct has been aimed at preventing a
majority from coming into being, or has been directed at
dissipating one which presumably exists seems irrelevant.
Affirmative support for a union as expressed in employee
designations following the unfair labor practices is nothing
more than a subjective expression of the possible
ineffectiveness of the employer's unlawful conduct The
vice of the employer's conduct, however, has not been
erased Having launched an offensive calculated to
interfere with free choice by the election process, the
employer has tainted that usually more reliable method,
and thereby rendered the designation cards the more
reliable gauge of employee choice.
The rationale of a recent Board case lends support to
the above approach The Board stated in General Stencils,
Inc, 178 NLRB No. 18, that "a preference for proof
cannot become a license to engage in conduct designed to
prevent the exercise by employees of a free choice of
representatives." Just as preference is no "license" after
knowledge that a majority has been claimed, neither
should it be regarded as a "license" where an employer
aims to forestall union efforts to achieve a majority. The
Board does not measure the actual effect of interference,
but undertakes to remedy the likely effects. In remedying
such effects, the Board in General Stencils, Inc , supra,
stated, "An employer who raises the majority issue in
such a context should not be permitted to control the
method of resolving the issue." In General Stencils, the
Board found Respondent to have engaged in "widespread
unfair labor practices during the union's organizing drive
before and after receiving the union's demands for
recognition." The same rationale seems equally applicable
to a situation where the only unfair labor practices are
found to have occurred before the demands For an
employer to reserve the right to question a union's
majority in such a circumstance would permit him to
control the method of resolving the majority issue in a
situation where his own unfair labor practices are the very
thing that makes it questionable that free choice can likely
be made through use of the election process Accordingly,
I find that by its conduct on January 6 and 7 Respondent
has rendered the holding of a fair election dubious, if not
impossible, thereby rendering the designations the more
reliable method of determining a majority.
There remains one further aspect of this case which
must be considered While for reasons above set forth I
would find that the January 6 and 7 unfair labor practices,
without more, suffice to support a bargaining order
remedy, we have in the instant case something additional.
The conduct of Brown, the incoming service manager,
which is described above, took place on February 10 after
the bargaining requests of the Joint Unions, and
Respondent's refusal to accord them recognition. By his
own admission, Brown brought up the subject of employee
interest in union organization. The employees, noting the
terminations of Carter and Schultz which had occurred on
that very day, raised questions as to job security,
signifying that they felt union organization might bring
them added protection. The credited testimony of
Littlefield and Wargin indicates that Brown in effect told
the employees that union organization might even have a
reverse effect, pointing out that he could always find
enough in the record to let anyone go, and that if he
deemed this the thing to do, this is the course he would
follow. Brown had no good reason to bring up the subject
of union organization at all at this time. His interrogation
took place on the very day that two employees had been
terminated under circumstances that at the very least must
"Aaron Brothers Company of California, 158 NLRB 1077
MERRITT MOTOR COMPANY
have puzzled the employees. When Brown coupled his
interrogation with regard to union organization with
remarks not designed to allay fears as to the possibility of
future job insecurity should they choose a union, but on
the contrary spoke in a manner calculated to enhance such
fears, he exceeded permissible bounds Accordingly, I find
that Respondent, by the conduct of Brown on February 10
engaged in interference with the employees' rights under
Section 7, and that by such conduct Respondent violated
Section 8(a)(1) of the Act.
If Brown's February 10 conduct were to stand alone it
conceivably could be viewed as so isolated as to be
insufficient to constitute effective interference with
employee free choice. However, when we consider Brown's
remarks in conjunction with the more extensive and
serious unfair labor practices heretofore found to have
taken place on January 6 and 7, I would deem the entire
pattern to fall well within the rationale of Gissel, and
would see it as a further demonstration that Respondent's
entire course of conduct was designed to undermine
"majority strength and impede the election processes."
Accordingly for reasons set forth above, I find
Respondent's unfair labor practices of January 6 and 7,
either considered alone or considered in conjunction with
the additional unfair labor practices found to have
occurred on February 10, as sufficient to support a
bargaining order Having heretofore found that
Respondent has refused to bargain with the Joint Unions,
and having further found that the Joint Unions
represented a majority of Respondent's employees in an
appropriate bargaining unit, I find that Respondent, by
such refusal to bargain, has engaged in conduct violative
of Section 8(a)(5) 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 connection with the operations of
Respondent as set forth 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 now of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully refused to
bargain with the Joint Unions as the exclusive
representative of its employees in an appropriate unit, I
will recommend that Respondent, upon request, bargain
collectively with the Joint Unions, and in the event an
understanding is reached, embody such understanding in a
signed agreement.
The unfair labor practices committed by Respondent
cover a sufficiently broad spectrum to signify that they
strike at the heart of the rights guaranteed employees by
Section 7 of the Act.12 The inference is warranted that
Respondent maintains an attitude of opposition to the
purposes of the Act with respect to the protection of the
employees in general. It will, accordingly, be
recommended that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
1107
Section 7 of the Act ''
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in a business
which affects commerce within the meaning of Section
2(6) and (7) of the Act.
2. The IAM and the Teamsters are each labor
organizations within the meaning of Section 2 (5) of the
Act.
3. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By refusing , upon request , to bargain in good faith
with the Joint Unions as the representative of its
employees in the unit found above to be appropriate,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and ( 1) of the Act.
5. The aforesaid unfair labor practices affect interstate
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. By the terminations of Lynn Schultz and Robert
Carter Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Merritt Motor Company
its officers, agents, successors and assigns shall:
1. Cease and desist from.
(a) Refusing to bargain collectively with the Joint
Unions as the exclusive representative of Respondent's
employees in the appropriate unit described above.
(b) Interrogating or threatening employees with
economic reprisals or conferring benefits upon employees
for the purpose of influencing their union activities or
sympathies.
(c) In any other manner interfering with, restraining,
and coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the union or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such rights 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.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Joint
Unions as the exclusive representative of the employees in
the unit found to be appropriate and embody in a signed
agreement any understanding reached.
(b) Post at its Santa Cruz, California, place of business
'IN L R B v Entwistle Manufacturing Co, 120 F 2d 532 (C A 4)
"May Department Stores v N L R B. 326 U S 376, Bethlehem Steel
Co v NLRB 120F2d641(CADC)
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of the attached notice marked "Appendix.""
Copies of said notice to be furnished by the Regional
Director for Region 20 shall, after being duly served upon
Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for
a period for at least 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from date of receipt of this
Recommended Order what steps Respondent has taken to
comply herewith."
I FURTHER RECOMMEND that the allegations as to the
discriminatory terminations of Lynn Schultz and Robert
Carter on February 10, 1969, be dismissed.
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order be adopted by the Board,
this prov on shall be modified to read . "Notify the Regional Director for
Region 20, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
WE WILL NOT refuse to bargain collectively with
District Lodge No. 93 International Association of
Machinists and Aerospace Workers, AFL-CIO, and
Local Union No. 912 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the joint exclusive representative of
employees in the appropriate bargaining unit. The
appropriate unit is:
All service department employees employed at the
Santa Cruz place of business of Merritt vlotor
Company excluding office and clerical employees and
supervisors as defined by the Act.
WE WILL bargain upon request with the above-named
unions as the joint exclusive representative of all
employees in the unit described above with respect to
wages, hours and other terms and conditions of
employment, and if an understanding is reached,
embody such understanding in a signed statement.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
All our employees are free to become or remain or
refrain from becoming or remaining members of the
above-named or any other labor organization.
Dated By:
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT unlawfully interrogate or threaten our
employees with economic reprisals or confer benefits on
them for the purpose of influencing their union
activities or sympathies.
MERRITT MOTOR
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board 's Office,
Box 36047, 13050 Federal Building, 450 Golden Gate
Avenue, San Francisco, California 94102, Telephone
556-3197.