Mid Missouri Motors

National Labor Relations Board - Board Decisions

Dec 13, 1971

194 N.L.R.B. 505 (N.L.R.B. 1971)

MID MISSOURI MOTORS
Mid Missouri Motors and District No. 9, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 17-CA-4565
December 13, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 4, 1971, Trial Examiner Henry L. Jalette
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as ameilded, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Mid Missouri Motors, Waynesville, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
i Members Fanning and Jenkins agree with the Trial Examiner that
Respondent violated Section 8(a)(5) of the Act and that, in view of the
Respondent's additional violations of Section 8(a)(1), a bargaining order is
warranted. They therefore find it unnecessary to adopt or pass upon his
discussion of Wilder Mfg. Co, 185 NLRB No 76; Snow & Sons, 134 NLRB
709, and Linden Lumber, Div., Summer & Co., 190 NLRB No 116 These
cases involved situations where no independent violations of Section
8(a)(1) occurred. The legal questions with respect to such cases need not
now be considered where, as here and in United Packing Company, 187
NLRB No. 132, the applicable principle derives from the Supreme Court's
decision in Gissel Packing Company, 395 U.S. 595, in which the Court
clearly held that a violation of Section 8(a)(5) accompanied by serious
8(a)(1) conduct warrants a bargaining order.
Chairman Miller concurs in the bargaining order remedy here for the
same reason as that sel forth in his concurring opinion in United Packing
In his view, the confusion, which could have been readily avoided by
adopting the rationale set forth in that opinion, takes on new dimensions
when Gissel is viewed as simply holding that "a violation of Section 8(a)(5)
accompanied by serious 8(a)(1) conduct warrants a bargaining order " It is,
and always has been, axiomatic that conduct in violation of Section 8(a)(5),
without more, warrants a bargaining order to restore the status quo ante.
The Chairman doubts that his colleagues intend by their interpretation of
Gissel to limit the Board's remedial powers in such a. case only to those
situations involving serious 8(a)(1) conduct.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
505
HENRY L. JALETTE, Trial Examiner: This proceeding was
initiated by a charge filed by the above-captioned Union on
January 27, 1971,' against the above-captioned Employer,
pursuant to which complaint issued on March 11, alleging
that Respondent had engaged in independent 8(a)(1)
conduct and had refused to recognize and bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
On April 21 and 22, a hearing was held at Waynesville,
Missouri.
Upon the entire record,2 including my observation of the
witnesses, and after consideration of the briefs filed by
General Counsel and Respondent, I make the following
findings of fact, conclusions of law and recommendations:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an automobile dealer engaged in the retail
sale and service of automobiles in Waynesville, Missouri,
annually derives gross revenues in excess of $500,000 from
such sales and services and annually purchases products
valued in excess of $50,000 directly from sources outside
the State of Missouri.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The events in this case may be capsulized very quickly.
About the first of the year, Respondent's service depart-
ment employees became interested in union representation
and signed cards received from the Union expressing their
interest in representation. These cards, whose legend was
not disclosed, were mailed to the Union a day or two before
January 14. On January 14, Respondent held a meeting of
the service department employees to discuss the circulation
of the cards.
On January 20, a majority of the service department
employees signed cards applying for membership in the
Union, and on January 21, the Union demanded recogni-
tion. An answer was deferred to January 22 at which time
Respondent refused to grant recognition. Thereupon, a
majority of the service department employees went on what
is alleged to be an unfair labor practice strike and began
picketing. The strike was still in progress at the time of the
hearing, but four of the strikers had returned to work.
The foregoing represents the principal and undisputed
events in this case. Certain minor matters described
hereinafter are also undisputed, but in the main what
i Unless otherwise noted, all dates are in 1971.
2 Respondent's unopposed Motion to Amend the Record is hereby
granted, and the motion is hereby received into evidence as Resp. Exh. 15.
194 NLRB No. 79
506 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
follows is sharply controverted, beginning with the first
meeting between Respondent and its employees on January
14. The conflict in testimony is such that the only
explanation for it is that witnesses testified falsely.
Although I cannot state with certitude who the false
witnesses were, I can articulate my reasons for the
conclusion I have reached.
Apart from salesmen Jewel Parker, Wayne Sloan, and
Gerald Roam, and secretary Sharon Myers, all the
witnesses had an interest in the case. Even these four
witnesses were not totally disinterested because they are
employees of Respondent, yet had they testified about the
crucial matters I might have been aided in deciding
credibility. As matters stand, Parker, Sloane, and Roam
testified on a minor issue, and secretary Myers clearly had
no independent recollection of the January 14 meeting, the
only event with which she was connected.3 Supervisor
Sarnes might also be said to have been disinterested, at
least, less interested than the main witnesses, but he was not
a very convincing witness, and for some unexplained
reason, he was not examined about the January 14 meeting
which forms such a major part of this case.
These witnesses aside, I have been given a choice on the
one hand of Union Representative Bert Townsend and
strikers Don Anderson, 'James Homer, Clint Helton,
Ronald and Curtis Sasseen, and on the other hand
Respondent's president, Julian Harrison, and his brother,
Vice President Lloyd Harrison, and Thomas Roberts, Alan
Sarnes, Robert Major, and Marion Hunter, employees who
abandoned the strike and withdrew from the Union. These
last four mentioned witnesses testified only to one main
portion of the disputed facts and on this limited point all
were less than candid. Why neither party examined them
about the January 14 meeting is not explained, but in any
event, they were of no help in trying to resolve credibility.
In the final analysis, the case reduced itself to the
credibility of Julian and Lloyd Harrison (for brevity's sake
hereinafter referred to simply as Julian and Lloyd). If they
were to be credited, the major portions of this case could
readily be disposed of. I have concluded that their
testimony was not deserving of credence.
The decision to discredit the Hamsons was not an easy
one, because they appeared no less candid and honest than
General Counsel's witnesses, and they were more articulate
than General Counsel's witnesses. Moreover, the extrava-
gant nature of the accusations against them (e.g., that Lloyd
said for $50 and a picture, he would get them rubbed out)
caused me to doubt the credibility of General Counsel's
witnesses. The balance was struck, however, when I
reviewed the testimony of the Harrisons respecting the
alleged refusal to bargain.
As noted above, on January 21, the Union demanded
recognition. At the time Union Representative Townsend
3 Myers attended the January 14 meeting to take notes In making my
credibility resolutions, I have considered her notes which do not contain
any of the 8(a)(1) statements attributed to the Harrisons by General
Counsel's witnesses. I have concluded that the notes are entitled to little
made the demand he presented a recognition agreement to
the Harrison providing for recognition in a unit of
employees of Respondent's service department. Although
the agreement consisted of only one sentence and Julian
read enough of it to object to it as a "blank ticket," he
nevertheless claimed that he did not read the agreement, at
least not "in its entirety," and because the agreement
inadvertently referred to "service departments" instead of
service department, Julian attempted to have me believe
that he did not know which group of employees the Union
claimed to represent. When confronted with the fact that
when the meeting ended he gave the Union representatives
a tour of the service department, Julian lamely explained
his action as a courtesy available to anyone who asked. In
my judgment, Julian's testimony about the meeting with
Townsend on January 21 was clearly designed to deceive.
In addition, in order to support Respondent's contention
that the appropriate bargaining unit herein is a unit of all
employees, including salesmen and mechanics, Julian gave
testimony respecting the similarities between the work
performed by salesmen and mechanics which was in my
judgment a conscious distortion of facts.
For the foregoing reasons, which are applicable generally
to Lloyd also, I have concluded that the Harrisons were not
credible witnesses. The result is that General Counsel's
witnesses are credited. Their testimony is not without some
difficulties. For instance, there are discrepancies in the
versions they gave of the January 14 meeting and Ronald
Sasseen, for one, was completely mistaken about the time
of the meeting, However, one learns from experience that
where there are several witnesses to the same event it is
seldom that they all give the same description of the event.
All things considered, General Counsel's witnesses are
more deserving of credit than the Harrisons.
B. The Alleged Independent 8(a)(1) Conduct
1. The meeting of January 14
This meeting was called because the Harrisons had heard
of the circulation of union cards and that employees were
being told the Harrisons approved of their signing the
cards. At the outset of the meeting, Julian advised the
employees that any rumors that he approved of the
distribution of cards were false, and he initiated a
discussion of the pros and cons of a union shop. According
to General Counsel's witnesses,4 in the discussion that
followed the following statements were made:
Lloyd: the Union was nothing but a bunch of gangsters
and for $50 and a picture, they could get anybody who
wanted a union rubbed out;
Julian: those who wanted a union could pick up their
paychecks after the meeting;
weight. Admittedly, they were taken in longhand, and they are not quite
three pages long although the meeting lasted by all accounts at least 45
minutes . It is obvious much was omitted from the notes.
4 Don Anderson, James Homer, Ronald Sasseen, and Clint Helton
MID MISSOURI MOTORS 507
Julian and Lloyd: before Respondent went union, they
would close the shop and farm out the work.5
In addition, during the meeting Julian asked who had
been passing out the cards.
I do not credit the denials of the Harrison that they
made such statements and I find such statements, including
the inquiry about who,had been passing out cards, coercive
and violative of Section 8(a)(1) of the Act.
. One statement attributed to Julian was that from that day
on those who wanted a union would not receive holiday
pay. I do not find that Julian made such a statement in haec
verba. The record indicates that before the start of any
union activity Respondent's salesmen had complained
about the fact that they were not receiving holiday pay as
everyone else was, including line mechanics who, like the
salesmen , worked on straight commission . The Harrisons
checked into the matter, concluded they could not afford to
pay holiday pay to both the salesmen and mechanics, and
the salesmen were advised that holiday pay would be
discontinued for line mechanics after January 1. The
mechanics were not told of the decision, but when Ronald
Sasseen brought up the subject of holiday pay at the
meeting, Julian told the employees of the decision and that
it affected only the line mechanics. Under the circum-
stances, I conclude that the statement to the employees did
not violate Section 8(a)(1) of the Act.
2. The events following commencement of the
strike
a. The solicitation of strikers
The complaint alleges that on January 27, at an
employee's home, Julian solicited striking employees to
withdraw their union authorizations and to abandon the
strike, and that Lloyd did the same thing on the same day in
the shop.
It is undisputed that on January 23, the Harrisons
solicited the strikers on the picket line to abandon the
strike. They testified they made no threats or promises, and,
except for Clint Helton, none of the strikers attributed any
threats to either Julian or Lloyd. According to Helton,
however, Julian told him and Bob Major that "if we didn't
come in he was going to have to lease the shop out " I credit
this testimony.6 I am persuaded that Helton would not have
acted in the fashion described in the footnote below had his
testimony been a fabrication. Bob Major denied that Julian
made any threat such as Helton described, but Major didn't
impress me as a credible witness.
- Later that same morning, strikers Alan Sarnes and Tom
s Paragraph 10(e) of the complaint alleges that Julian threatened
employees with layoffs if the service department went Union. I find no
support for such an allegation, and General Counsel may have intended it
merely as a variant of the threat to lock the doors and subcontract the
work. I shall recommend dismissal of paragraph 10(e)
6 Respondent made a motion to strike this testimony on the ground that
the complaint did not allege that Respondent violated Section 8(a)(1) on
January 23 I denied the motion because in my judgment Helton's
testimony could not be divorced from consideration of the complaint
allegations that Respondent had unlawfully solicited strikers to abandon
the strike and to withdraw from the Union. Respondent was given the
opportunity to contradict Helton and availed itself of the opportunity by
calling Bob Major. The Harrisons had already testified and were not
recalled, but their testimony prior to this was sufficiently broad to include
Roberts, who had been picketing and had been among
those solicited by the Harrison to return to work, decided
to abandon the strike. They told strikers Ronald and Curtis
Sasseen of their decision. According to Roberts, Ronald
Sasseen said it would be bad for his health if he crossed his
own picket line and he would be fined $500 by the Union.
Sasseen did not deny making this statement . Nevertheless,
both Roberts and Sarnes went into the shop and told the
Harrisons of their decision and what Ronald Sasseen had
told them. Both signed statements prepared by the
Harrisons to the effect that they had not been promised
raises or additional benefits, nor had they been threatened,
in connection with their abandonment of the strike and
return to work.
Later that same day striker Marvin Hunter decided to
abandon the strike, and on Monday, Bob Major returned to
work. They also signed a prepared statement identical to
that signed by Roberts and Sarnes.
On January 27, at work, Roberts, Sarnes, Hunter, and
Major, were all approached by either Lloyd or Julian and
were handed a typewritten letter addressed to the Union
which they were requested to sign. The letter was a
withdrawal of authorization to represent the employee for
purposes of collective bargaining and a resignation from
the Union. All four signed the letter.
On the evening of January 27, Julian went to the home of
striker Curtis Sasseen and spoke to him and his son Ronald.
A conversation ensued as a result of which both Sasseens
signed a letter and a statement identical to those described
above.
Respondent contends that the foregoing conduct was not
unlawful, because it was in response to the requests of its
striking employees for aid to get out of the Union to avoid
union fines for crossing the picket line. I find no merit to
this defense.
First, I do not credit Julian's testimony that his visit to the
Sasseen home was prompted by a call from Ronald
Sasseen . Instead, I credit the testimony of Ronald and
Curtis Sasseen that Julian was the one to telephone the
Sasseen home, that he arranged for the meeting, and that he
was the one to suggest that they abandon the strike and
withdraw from the Union, and who told them exactly what
to write.
Second, in the case of the solicitation of Roberts, Sarnes,
Hunter, and Major, at work on the morning of the 27th, the
record does not support Respondent's assertion that they
sought its assistance . Roberts, who had been threatened by
Sasseen and had told the Harrison of the threat, did not
testify that he asked for assistance . Major and Hunter did
a denial of Helton's accusation. They were therefore not prejudiced by my
permitting Helton's testimony to stand . Respondent also moved to strike
Helton's testimony on the ground it violated my ruling on sequestration of
witnesses I also denied this motion The testimony was given by Helton
when recalled by General Counsel as a rebuttal witness. In his earlier
testimony Helton had testified on cross-examination that he had heard
Julian make a statement on the picket line about locking the doors, but his
testimony was somewhat uncertain . As a rebuttal witness, he testified that
his memory had been refreshed by listening to the testimony of other
witnesses and he had volunteered that fact to counsel for General Counsel
who recalled him to testify. Counsel for Respondent knew that General
Counsel's witnesses were staying in the hearing room after testifying,
understood they might be recalled, and stated he had no objection to their
staying
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not testify that they had expressed any fears of a union fine
or any desire to withdraw from the Union. Nevertheless,
these employees were solicited, to-withdraw from the Union.
Moreover, the letter prepared by Respondent did not
confine itself to a withdrawal from membership; the only
thing required to protect the employees from fines; rather,
it stated: "I no longer wish to be represented by Machinist
District #9 for the purpose of collective bargaining. I
hereby withdraw all authorization that I have given to that
union to represent me and I hereby resign from the Union.,,
On the facts found, it is clear that the idea and means of
withdrawal of union authorization originated with Respon-
dent and that such conduct had the deliberate purpose of
dissipating the Union's strength and frustrating the
employees' right of self organization. While there is no
evidence that the employees were threatened in the process
of soliciting their withdrawal, a finding of restraint and
coercion does not depend on overt threats. The mere
presentation of prepared letters of withdrawal to employees
who have just returned from a strike clearly tends to
restrain and coerce them. Few employees will have the
fortitude to refuse to sign such letters.
Apart from the foregoing, assuming, arguendo, that the
employees had indicated their disaffection with the Union,
and a desire to withdraw from it, the Board has clearly held
that an employer may render no more than "ministerial
aid." Southwestern of Dallas Optical Company and Tru-
Optics, Inc., 153 NLRB 33; Movie Star, Inc., 145 NLRB
319, enfd. 361 F.2d 346 (C.A. 5); Winn-Dixie Stores, Inc.,
128 NLRB 574. In the last cited case, it is noteworthy at
page 580 that the Board did not adopt the Trial Examiner's
holding at page 581 that an employer may render even a
"minimum" of assistance to employees seeking assistance.
In this case , it is undisputed that Respondent's assistance
was more than a minimum ; as a matter of fact, it could
have done no more.
In short, I find that by soliciting the Sasseens to abandon
the strike and withdraw their union authorizations and by
soliciting the returned strikers to withdraw their union
authorizations, Respondent violated Section 8(a)(1) of the
Act.
b. The threat to discharge strikers
On January 29, Respondent sent the following letter to
strikers Don Anderson, James Homer, and Clint Helton:
Sir:
On Friday, January 22, 1971, I Julian Harrison offered
to continue your employment with Mid Missouri
Motors, Inc. I made this offer in sincerity with no
reservations or restrictions and no alternative motive in
mind.
I will continue to offer you employment until Tuesday
February 2, 1971 at 8:15 AM. If in the event you do not
report for work as set out above I will assume that you
are no longer interested nor desirous of continuing your
7 In my opinion , Respondent 's letter is clearly distinguishable from the
letter in B,-Rite Foods, Inc., 147 NLRB 59. While Respondent's letter of
April 17 clarified that the strikers had not in fact been discharged, it was
employment with Mid Missouri Motors, Inc. and that
you have voluntarily severed your employment.
If in- the, event you do not return to work Tuesday
morning February 2,1971 at 8:15 AM you will leave me
no-other alternative but, to , secure other personnel; in
order to continue the free flow of business.
Sincerely yours,
Julian Harrison
Although the Sasseens had signed a statement requesting
reinstatement on January 27 and had withdrawn their
authorization from the Union, they did not abandon the
strike . On February 1, Ronald Sasseen resumed picketing
and that same day he and his father received a telegram
identical to the letter set forth above except that their jobs
were to remain open until February 5.
General Counsel contends ' that the letters and telegrams
threatened the strikers with discharge and they were
therefore violative of Section 8(a)(1) of the Act. Respon-
dent contends that the letters were no more than a
reiteration of statements at the picket line to strikers that
their jobs were still available with the additional statement
that "in order to continue the free flow of business" they
would be replaced if they did not return by a specified date.
Pursuing this argument with case citations , Respondent
asserts that it is the substance of what it has done which
must be considered over the words it has used . I would
agree with Respondent were the issue here , as in its cited
cases, whether or not it had in fact discharged the strikers.
The complaint does not allege that the strikers were
discharged (the record clearly indicates they were not) but
merely that they were threatened with discharge. In
Kerrigan Iron Works, 108 NLRB 933, strikers were sent a
letter similar to the letters in this case . The Board rejected
the contention that the strikers had been discharged, but a
majority of the Board stated that they "do not condone the
use of such a letter , as they regard it as an unlawful strike-
breaking technique violative of Section 8(a)(1) of the Act.
They construe the letter as a threat of discharge , designed to
coerce the strikers to abandon the strike." (Emphasis
supplied .) It does not appear that the Board has ever
overruled Kerrigan and I deem it applicable to Respon-
dent's communications here . While Respondent did not
state that it would terminate the strikers who did not return
by the deadline set, its statement that it would assume the
strikers were no longer desirous of employment and that
they had voluntarily severed their employment imparted to
the strikers the identical message . Any striker receiving
such a letter could not help but conclude that unless he
abandoned the strike he was no longer an employee of
Respondent. Accordingly, I find that Respondent's letters
and telegrams to the strikers were coercive and violative of
Section 8(a)(1) of the Act .7
c. Picket line threats
The complaint alleges that on January 28, Lloyd
insufficient to erase the effects of the threat of discharge in the earlier letter
and a cease-and-desist order and notice are deemed necessary to effectuate
the policies of the Act.
MID MISSOURI MOTORS 509
threatened that local businessmen would shoot the pickets
down if they continued picketing, and that on February 1,
Julian told pickets they had better "stand tall" because the
town's merchants were going to get rid of them.
The January 28 allegation is based on the testimony of
striker Don Anderson, which I credit, that on that date he
was approached on the picket line by the Harrisons and
that Lloyd told him the businessmen at the chamber of
commerce were going to shoot him if he didn't take the
picket line down. Julian added that the town was not ready
for a union and the people would not go for it and if his
Irish father-in-law were there he would shoot Anderson.
Striker Ronald Sasseen testified that on or about
February 4 at the picket line, Julian made the remark that
"we had better stand tall while we were out there because
the merchants were out to get us, they were going to get rid
of us." I credit Sasseen. According to Sasseen, his father
and James Homer and Clint Helton were present when this
remark was made, yet none of them testified to having
heard the remark. This does not mean that Julian did not
make the remark. They were not specifically asked about
such a remark, and, though present when it was made, may
not have overheard it.
The statements described are clearly coercive and
violative of Section 8(a)(1) of the Act, as alleged.
C. The Alleged Refusal To Bargain
1. The appropriate unit
The complaint alleges, and the General Counsel con-
tends, that an appropriate unit consists of Respondent's
service department employees, excluding all other employ-
ees. Such a unit, which General Counsel concedes includes
the parts department employees and a janitor, numbers 12
employees.
Respondent contends that the appropriate unit is one
consisting of all its employees, including office clerical
employees and automobile salesmen, excluding supervisors
only. Such a unit numbers 23 employees.
In order to establish the existence of a community of
interest between the salesmen and mechanics, Julian
testified that salesmen do minor repair work, road test
customer's cars, and diagnose mechanical problems, and
that salesmen have even performed major repair work.
Julian also tried to establish that mechanics sell cars. As I
8 The record does not support General Counsel's assertion that Fulmer
is a supervisor within the meaning of the Act. Although I have serious
reservations about Jack Sarnes' testimony relative to his status as a
supervisor, I am constrained to find that he is a supervisor within the
meaning of the Act.
9 I do not include in this list Howard Callahan, Kenneth Harrison,
LeRoy Fulmer, Jr., Peggy Ann Anderson, and Karen Harrison. According
to Resp. Exh 7, Callahan and Kenneth Harrison are part-time parts
department employees, LeRoy Fulmer, Jr is a part-time clean up
employee, and Peggy Anderson and Karen Harrison are shop clerical
employees. However, Respondent offered no evidence that any of these
male employees were in fact regular part-time employees or that the female
employees were shop clericals. Res. Exh. 7 was merely identified by
secretary Sharon Myers as a list of employees of Respondent as of January
21, 1971, taken from company personnel records. While I deemed her
identification of the list sufficient to warrant its being received into
evidence, I do not deem the mere inclusion of an individual's name on the
list proof that such individual was in fact an employee within the unit
found herein appropriate as of January 21, 1971 According to General
have already indicated his testimony in this connection
reflected adversely on his credibility. It is clear from the
record that whatever repair work salesmen may do is purely
incidental' to their essential function as salesmen, and it is
noteworthy that any repair work which required use of the
service department facilities was performed after regular
hours when service department employees were not
working. A unit of service department employees has long
been held to be appropriate in automobile sales and service
establishments and Julian's testimony was insufficient to
warrant the inclusion of salesmen in the service department
unit contrary to Board policy. Austin Fora Inc., 136 NLRB
1398; Hanna Motor Company, 94 NLRB 105.
Respondent's arguments for inclusion of the office
clerical employee are clearly without merit.
2. The union's majority status
The unit found appropriate consists of 12 employees: Bill
Bowling, LeRoy Fulmer,s Robert Major, Thomas Roberts,
James McKinnon, Marvin Hunter, Alan Sarnes, Ronald
Sasseen, Curtis Sasseen, Don Anderson, Clint Helton, and
James Homer .9 Of these 12, all but James McKinnon,
LeRoy Fulmer, and Bill Bowling, signed cards on January
20, 1971, applying for membership in the Union and
authorizing the Union to act as their bargaining representa-
tive. Accordingly, I find that on January 21 and 22, 1971,
when the Union demanded recognition it represented a
majority of Respondent's employees in the unit found
appropriate herein.10
3. The demand for recognition
Bert Townsend, business representative of the Union,
accompanied by organizer Lonnie Kenoyer, went to
Respondent's place of business on the morning following
the execution of the membership application cards and met
with Julian and Lloyd. Townsend testified he first
identified himself and then told the Harrisons that he
represented a majority of their service department employ-
ees, that he was prepared to prove this, that in fact 10 of
their service department employees were members of the
Union, and that they had requested him to demand
recognition and he was doing so. Townsend showed the
Harrisons a form document which stated: "This is to certify
that , recognizes District No. 9, International
Counsel's witnesses, the only employees in the service department were the
12 listed above. Respondent did not challenge this testimony, and I accept
it and find the unit consisted of the 12 employees listed above. An
additional reason for excluding Kenneth Harrison and Karen Harrison is
that they are the children of the two principal stockholders and are, in
effect, individuals employed by their parents. Foam Rubber City #2 of
Florida, Inc., 167 NLRB 623.
10 Respondent contends that the membership application cards should
all be declared to be invalid because they were signed at a meeting of
employees which was attended by Supervisor Jack Sarnes who "vigorously
espoused" the Union's cause. I do not agree . The record clearly indicates
that the meeting at which the cards were signed was arranged by the
employees themselves, a majority of whom had antecedently signed cards
at the behest of employee solicitors indicating they were interested in union
representation. Under the circumstances , including the fact that there was
some doubt of Sarnes' supervisory status, I do not consider Sarnes' remarks
favorable to the Union sufficient basis for invalidating the cards. Compare
WKRG-TV, The, 190 NLRB No. 34.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Machinists and Aerospace Workers, as
Bargaining Agent for the employees in their Service
Departments [sic] in regard to wages, hours and working
conditions." Below this statement was a place for signature
by Respondent and the Union.
Julian Harrison replied that Respondent was a corpora-
tion and they couldn't make a decision such as Townsend's
demand required without consulting the rest of the
corporation. Townsend agreed to give Respondent 24
hours.
The following morning, Townsend, accompanied again
by Kenoyer, met with the Harrison in Julian's office.
According to Townsend, the Harrisons said they wanted all
the service department employees to be present and
Townsend said he had no objection. Accordingly, the
service department employees also entered the office.
Townsend repeated his request that Respondent sign the
letter of recognition and Julian replied by stating that he
did not believe the employees had been given all the facts.
Townsend interrupted and said he was not there to discuss
such a matter, that he was there to ask Harrison to sign the
letter of recognition. Julian refused, so Townsend told the
employees "Let's go." Eight or nine employees followed
Townsend and a picket line was set up.
On the basis of the foregoing, a finding is warranted that
the Union made a proper request for recognition in a unit
of service department employees and that Respondent
refused to grant recognition. Respondent admits that it
refused Townsend's request for recognition, but it contends
that Townsend never specified the unit for which he was
seeking recognition and that absent an unambiguous
request a refusal to bargain may not be found. Respon-
dent's position is predicated on the testimony of the
Hamsons and salesman Gerald Roam that Townsend said
he represented "their employees" without ever specifying
that he meant service department employees. I attach no
weight to Roam's testimony, because he was not present
during the 'meeting and heard only the introductory
remarks, and I have already indicated in my introductory
remarks that the entire circumstances surrounding the
demand for recognition compel a finding that the Harrisons
knew that the unit for which recognition was being sought
was a unit of service department employees and that the
effort of the Harrison to persuade me otherwise militated
against their credibility. I credit Townsend and find that on
January 21, the Union made a demand for recognition as
the representative of employees of Respondent in a service
department unit.
4. The obligation of Respondent to bargain with
the Union
General Counsel contends that in view of Respondent's
independent 8(a)(1) conduct as set forth herein a bargain-
ing order is warranted in keeping with the principles
established by the Supreme Court in N.L.R.B. v. Gissel
Packing Company." At the outset, I reject any contention
that Respondent's unfair labor practices are so flagrant or
"so coercive that, even in the absence of a Section 8(a)(5)
11 395 U s.575
12 Id at 615
violation, a bargaining order would have been necessary to
repair the unlawful effects of those [unfair labor
practices]." 12 In my judgment, the issue for decision is
whether Respondent's unfair labor practices belong to that
class of cases wherein the possibility of erasing the effects of
past practices and insuring a fair election by the use of
traditional remedies, though present, is slight and employee
sentiment once expressed through cards would, on balance,
be better protected by a bargaining order, or whether they
belong to that category of minor or less extensive unfair
labor practices which will not sustain a bargaining order.
Both parties cite cases for their respective viewpoints and
these have been carefully considered. None of them, or for
that matter none of the cases studied by me in considera-
tion of this issue, answers the question for this case., In the
final analysis, cases of this type must be decided on their
own particular facts. In my judgment, the possibility of
erasing the effects of Respondent's unfair labor practices
by the use of traditional remedies is slight and the desire for
union representation exhibited by a majority of the
employees in an appropriate unit on January 22 can only be
protected by a bargaining order.
Respondent's opposition to the Union in this case was so
intense that immediately upon learning of the distribution
of cards it called a meeting of all employees in the unit and
indicated to them that rather than operate a shop with a
union it would close the shop and farm out the work. It
invited all those who desired union representation to draw
their paychecks and uttered threats of bodily harm. Despite
these threats on January 14, a majority of the employees
designated the Union to represent them on January 20. It
may be argued that this is evidence that the threats had no
coercive effects and they should not therefore form the
basis for a bargaining order. A similar issue was considered
in Merritt Motor Company, 181 NLRB No. 172, and the
Board there stated: i3
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 organiza-
tional 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
13 TXD.
MID MISSOURI MOTORS 511
and have affected the choice . The Board has never
sought to evaluate the subjective impact of an
employer's nusconduct . 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 presuma-
bly 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.
In the instant case, Respondent's unfair labor practices
were not confined to that single meeting of January 14. To
the contrary, on January 22, the same employees witnessed
their employer reject their demand that he recognize the
Union as their bargaining representative under circum-
stances which must have persuaded them that he knew that
a majority wanted union representation . Thereafter,
Respondent did not file a petition to resolve the question
concerning representation through the Board 's election
processes , a process it now urges be used , but rather it tried
to break the strike by threatening the strikers with discharge
and by picket line threats . At the same time, Respondent
undermined the Union 's support by successfully soliciting
employees to withdraw their authorizations and to
withdraw from the Union . In my judgment, given all these
circumstances , there is really no possibility that an election
held hereafter will reflect the free choice of the employees.
For the foregoing reasons, I conclude that by its refusal to
recognize and bargain with the Union Respondent violated
Section 8 (a)(5) and (1) of the Act and a bargaining order
should issue. 14
General Counsel has asserted that Respondent 's refusal
to recognize and' bargain with the Union was violative of
Section 8(a)(5) and (1) of the Act even if it were found
either that Respondent committed no other unfair labor
practices , or its other unfair labor practices did not warrant
issuance of a bargaining order. General Counsel contends,
in effect, that Respondent knew that the Union represented
a majority of its employees and that in such a circumstance
it could not lawfully refuse to recognize the Union . General
Counsel relies on Arthur F. Derse, Sr., President, and 'Wilder
Mfg. Co., Inc., 185 NLRB No. 76, and Fred Snow, Harold
Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709,
enfd . 308 F. 2d 687 (C.A. 9). Since the hearing in this case,
and since General Counsel filed his brief, the Board has
issued a decision in Linden Lumber Division, Summer & Co.,
190 NLRB No. 116, which, in effect, in my opinion,
overrules Wilder. As I construe Linden, the Board will not
14 Since Respondent's refusal to recognize the Union was violative of
Section 8(a)(5) and (1) of the Act, and the strike was caused by such
refusal, it follows , as alleged in the complaint, that the strike was an unfair
labor practice strike. This is further' reason for holding that Respondent's
issue a bargaining order in any case based on a card
majority (except another Snow & Sons case) where an
employer commits no unfair labor practices. Accordingly, I
reject General Counsel's alternative contention in support
of a bargaining order.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, 'intimate and
substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Mid Missouri Motors is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All service department employees of Respondent, at
its Waynesville, Missouri, facility, including parts men and
the janitor, but excluding office clerical employees,
salesmen, guards, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. District No. 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is the exclusive
representative of the employees of Respondent in the
above-described unit within the meaning of Section 9(a) of
the Act.
5. By threatening employees with physical injuries
because of their union activities, by threatening to close the
shop and to subcontract the work if they selected a union -to
represent them, by telling employees who desired union
representation that they could pick up their paychecks, by
threatening strikers with discharge if they do not abandon
their strike, by soliciting employees to abandon the strike
and withdraw from the Union, and by interrogating
employees about the identity of those who passed out union
cards, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) and
2(6) and (7) of the Act.
6. By refusing to recognize and bargain with the Union,
Respondent has engaged in and is engaging in unfair labor
letters and telegrams to the strikers described above, were unlawful,
because Respondent could not threaten to replace unfair labor practice
strikers.
512 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
practices within the meaning of Section 8(a)(5) and (1) and
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 15
ORDER
Respondent, Mid Missouri Motors, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with physical injury because
of their union activities.
(b),Threatening to close the shop and to subcontract the
work if employees select a union to represent them.
(c) Threatening employees with discharge by telling those
who desire union representation to pick up their paychecks.
(d) Threatening strikers with discharge if they do not
abandon the strike and soliciting employees to abandon the
strike and to withdraw from the Union.
(e) Interrogating employees about the identity of the
employees passing out union cards.
(f) Refusing to recognize and bargain with District No. 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining represent-
ative of its employees, in the above-described unit.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist the above-
named labor organization, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with District No. 9,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of all
employees in the unit described above, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its Waynesville, Missouri, facility, copies of
the attached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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 17, in
writing, within 20 days from the receipt of this Decision as
to what steps have been taken to comply herewith.17
IT IS FURTHER RECOMMENDED that the, allegation of
paragraphs 10(e) and (f) of the complaint be dismissed.
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.
16 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 "
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 17, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice.
WE WILL NOT refuse to bargain collectively with
District No . 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit
described below.
WE WILL bargain collectively, upon request , with this
Union as the exclusive representative of all our
employees in the bargaining unit with respect to rates of
pay, wages , hours of employment , and other terms and
conditions of employment , and if an understanding is
reached embody such understanding in a signed
agreement.
The bargaining unit is:
All service department employees , including
parts men and the janitor , but excluding office
clerical employees, salesmen , guards, professional
employees , and supervisors as defined in the Act.
WE WILL NOT ask you who has been passing out
union cards.
WE WILL NOT threaten strikers with discharge if they
do not abandon the strike.
WE WILL NOT tell you to pick up your paychecks if
you desire union representation.
WE WILL NOT solicit strikers to abandon the strike
and to withdraw from the Union.
WE WILL NOT threaten to farm out the work if you
select District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other union , to represent you.
You are free to become and remain members of District
No. 9, International Association of Machinists and
Aerospace Workers , AFL-CIO , or any other labor
organization.
MID MISSOURI MOTORS
(Employer)
15 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 Dated By
findings, conclusions , and recommended Order herem shall, as provided by (Representative) (Title)
MID MISSOURI MOTORS 513
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone its provisions, may be directed to the Board's office, 610
This notice must remain posted for 60 consecutive days Federal Building, 601 E. 12 St., Kansas City, Missouri
from the date of posting and must not be altered, defaced, 64106, Telephone 816-374-5181.
or covered by any other material.