Noll Motors, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1967

168 N.L.R.B. 1029 (N.L.R.B. 1967)

NOLL MOTORS, INC.
Noll Motors, Inc. and District No. 9, International TRIAL EXAMINER'S DECISION
Association of Machinists and Aerospace Workers,
AFL-CIO. Cases 17-CA-3126 and 17-RC-5251
'December 27, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 26, 1967, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, and
also finding that the Respondent had interfered with
the election and recommending that it be set aside,
as set forth in tthe attached Trial Examiner's
Decision.' Thereafter the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National ]Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds, that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiners Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conelusions,2 and recommenda-
tions of the Trial Examiner .3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act,' as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Noll Motors, Inc.,
Moberly, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition in Case
17, RC-5251 be, and it hereby is, dismissed, and all
proceedings held in connection therewith be, and
they hereby are, vacated.
' On October 30, 1967, the Trial Examiner issued an erratum stating
that Appendix A was inadvertently omitted from his Decision. The Ap-
pendix is accordingly attached to the Trial Examiner' s Decision.
2 Member Zagoria would not adopt the Trial Examiner's conclusions
that Noll's speech read by Hawkins, as quoted in the Trial Examiner's
Decision, violated Section 8(a)(1) of the Act or interfered with the elec-
tion
1 In view of our finding that Respondent violated Section 8(a)(5) of the
Act, we shall dismiss'the petition in Case 17-RC-5251 and vacate all
proceedings held in connection therewith.
STATEMENT OF THE CASE
1029
THOMAS F. MAHER , Trial Examiner : Upon a charge
and an amendment thereto filed on January 23 and March
28, 1967 , respectively , by District 9, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union , the Regional
Director for Region 17 of the National Labor Relations
Board , herein called the Board , on behalf of the General
Counsel of the Board , issued a complaint on March 30,
1967, against Noll Motors, Inc., Respondent herein, al-
leging violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended (29 U.S.C. See. 151, et
seq.), herein called the Act . Previously , on March 16,
1967 , the Regional Director issued his order consolidat-
ing Case 17-RC-5251 with the instant case and directing
a hearing on objections filed by the Union in that case
wherein an election had been held on January 16, 1967,
among Respondent 's employees . As a consequence of the
Regional Director 's order of consolidation the complaint
issued herein is deemed to constitute a consolidated com-
plaint. In its duly filed answer Respondent , while ad-
mitting certain allegations of the complaint , denied the
commission of any unfair labor practice.
Pursuant to notice a trial was held before me in
Moberly , Missouri , where all parties were present,
represented , and afforded a full opportunity to be heard,
present oral arguments, and to file briefs with me . Briefs
were filed by counsel for Respondent and the General
Counsel on June 12, 1967.
Meanwhile after the closing of the trial in this matter
there was mailed to me a handwritten document dated
May 5 , 1967, bearing what purports to me the penciled
signatures of 13 of Respondent's employees who had
voted in the election . Thereon was stated their belief that
they had signed union authorization cards prior to the
election only as a formality to obtain the election and it
further stated their desire to have "no part of the Union."
On May 12 , 1967 , I issued an order to show cause
directed to the incorporation of this document into the
record and after fully considering General Counsel's op-
position to such incorporation I now direct that the hand-
written document referred to above be incorporated into
the record of this proceeding as Trial Examiner 's Exhibits
3 and 4,' to be considered further hereafter (infra).
Upon consideration of the entire record, including the
briefs of the parties , the subsequent submissions by coun-
sel and General Counsel 's opposition thereto , and specifi-
cally upon my observation of each witness appearing be-
fore me,2 , 1 make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Noll Motors, Inc., is a Missouri corporation with its
principal place of business at Moberly, Missouri, where
it is engaged in automotive retail sales and services. Dur-
ing the year 1966 its sales and services exceeded
$500,000 and it purchased automobiles and automotive
products valued in excess of $50,000 from suppliers
located outside the State of Missouri.
' These documents are erroneously referred to in my order to show
cause as TX Exhs. 1 and 2. This error is hereby corrected.
2 Bishop and Malco, Inc., 159 NLRB 1159.
168 NLRB No. 137
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing stipulated facts Respondent con-
cedes and I conclude and find that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act,
H. THE LABOR ORGANIZATION INVOLVED
It is conceded and I conclude and find that District No.
9, International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE ISSUES
1. Threats, interrogations , and promises of benefit as
interference, restraint , and coercion.
2. Good-faith elements of a refusal to bargain.
3. Authorization cards as evidence of majority status.
4. Effectiveness of subsequent disavowal of union ad-
herence.
IV. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
1. Sequence of events
When the Union's organizing efforts among Respond-
ent's employees resulted in the signing of cards by them
authorizing it to represent them as their bargaining
representative a letter dated November 23, 1966, under
the signature of James Redman , the Union 's business
representative , was mailed to Respondent at its Moberly,
Missouri , address. It read as follows:
This is to advise that a majority of your garage em-
ployees such as service and maintenance employees
have authorized and designated District No . 9, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO , as their bargaining representa-
tive in all matters regarding wages, hours of work,
working conditions , and other conditions of employ-
ment.
Should there be any good faith doubt on your part
of the Union's majority status, please advise and the
Union will immediately submit proof of our majority
status to some mutually agreeable impartial third par-
ty, such as a Minister, a Rabbi, a Priest, or a member
of the Federal Mediation and Conciliation Service
for the purpose of ascertaining same.
This will serve as the Union's request that the
Company recognize and bargain collectively with the
Union and negotiate to a conclusion the terms of a
collective bargaining agreement regarding all matters
pertaining to wages, hours of work , working condi-
tions, and other conditions of employment. Please
treat this request for recognition as the majority
representative of the employees in said unit as a con-
tinuing request; and in the interim it is expected and
requested that all matters remain unchanged unless
a mutual understanding has been reached with the
3 The credited testimony of Union Representative Redman.
The account of the meeting is the credited testimony of employee
Roger Smith, corroborated by employee Luke H. Guilfoyle. President
Noll denied saying anything about labor unions. For reasons discussed
Union. We stand ready and willing to meet with your
designated representatives at an early date, mutually
agreeable to the parties, to conclude such negotia-
tions.
You can reach me at the above address or
telephone Olive 2-2100.
This letter was sent, certified mail, return receipt
requested, and was enclosed in an envelope bearing the
Union's name and return address. It was returned to the
Union on or about November 25 by the Moberly, Mis-
souri, Post Office, marked "refused." Because the cir-
cumstances surrounding the fate of this item of mail bear
significantly on the issues presented by this case they will
be explored at this point.
On or about November 24 James Williams, Respond-
ent's garage manager, was informed by a girl in the office
that a certified letter had arrived. Williams informed her
"we had better wait for Mr. Noll," and the delivery was
refused. Thereafter Williams went to the Post Office and
informed them, "Mr. Noll will be down when he gets
done with all his trouble, he can take care of it" While it
is undenie4l that Noll was then personally involved with
serious illness in his family and was himself under a
physician's care, these being "all his trouble" referred to
by Williams, there is no evidence in the record that
Respondent's business affairs was in any way curtailed
during this period or that other registered or certified
mail, if any, had been refused pending Noll's resumption
of full duties.
The Union's original letter of request for recognition
having been refused, the Union, on November 30 en-
closed a copy of the original letter together with a note to
explain that it was being sent because the original had
been refused. This letter was sent in a plain envelope by
regular mail.3 While there is no direct evidence that this
letter was received, President Noll did testify that he
received a letter from the Union as well as a telegram
bearing the identical message and sent on December 1.
Noll did not reply to the letter but turned it over to his
local attorney, David Collins, telling him as he did so that
he did not feel that the Union had enough votes to call an
election, particularly since 18 years ago the Union had
made a similar claim and apparently lost the election at
that time.
Thereafter on December 5, Respondent called a meet-
ing of its employees in which Noll spoke. He spoke at
some length on the production problems in the shop and
then turned his attention to the Union. He mentioned the
rumors going about that the Union was attempting to or-
ganize the shops in Moberly. He reminded them that
"when the Union tried to come in there before that they
was out a long time and didn't get nothing,"4 he described
the organized shops in Kansas City as not being as well
paid as his. He went on to say that if the Union did get in
and he was able to "accept" his contract he would then
have to operate the shop "on a strictly production basis,"
and he was sure that all the men could not make out on
such an arrangement. Noll then referred the men to the
labor situation at the nearby Bersted plant, an electric fan
manufacturing establishment, commenting on the un-
hereafter (infra), I do not credit Noll's denial of the conduct or statements
attributed to him or his testimony generally except that it is corroborated
by credible witnesses, constitutes submissions against Respondent's in-
terest or describes matters solely within his own knowledge.
NOLL MOTORS, INC. 1031
resolved results of an election recently held there.5 He
then proceeded to single out the employees, questioning
them individually about the nature of their complaints
with the shop. He started with employee Donald Kroner
and asked him why he wanted the Union. He asked the
same question of employees Rogers, Smith, and Guil-
foyle. Others, such as employee Bill James, he asked "if
they remembered the last time they went out on strike,
that it involved a long period of time and they never got
anything, and he wound up paying the grocery bill for
them coming back to work."6
Two or three weeks thereafter another employee meet-
ing was held' at which Shop Foreman R. D. Hawkins
presided in Noll's absence. For this occasion Noll had
prepared a speech which Hawkins read to the men. This,
it would appear, was substantially a repetition of what
Noll had said 3 weeks previously. A transcript of Noll's
speech appears as Appendix A of this Decision and
reference is made to it in its entirety. In his brief to me
counsel for the General Counsel refers specifically to cer-
tain portions of this speech, claiming such to be evidence
of violations of Section 8(a)(1). Thus in outlining for em-
ployees the possible consequence to them of selecting the
Union, Noll's speech read:
No doubt, we have made some mistakes here at this
Company but feel we have done our very best. I
simply do not see how bringing in some outsider is
going to help us solve any of our problems - in fact it
can be a trouble maker. As you know, the Union is
just that-trouble in the past. You don't hear of
strikes in non union plants, do you? I don't believe
you want to invite the Union in here and put yourself
in a position where someone in' St. Louis can say
"Hit the streets," do you? Some of you might
say - well, even if the Union management in St.
Louis did say, "Hit the streets" I wouldn't do it.
Maybe you wouldn't but the Union is always telling
you that you ought to do this and so because every-
one else is doing it-and I suppose that could include
striking and walking the picket line whether or, not
you could meet your house, car or tax, and mortgage
payments. This sort of go along with the crowd talk
doesn't put money in your pay envelope. I'm sure
none of us want the Adolph Hilter group thinking in
this country (Appendix A).7
Thereafter, by way of relating business and economics in
the area to the possible advent of the Union the speech
continued:
Businesses and people are already leaving Moberly
and Randolph County. We have less population now
than we had here 20 years ago. The Union over at
the Shoe Factory alone, I am told, took over 600 jobs
out of town- and I wish we had the service and sales
of those people in town right now. I don't know what
the situation will be with the MFA Packing plant at
Macon as the Union won an election over there but
MFA closed the plant. Whether it was because of the
Union, I don't know. I certainly hope the people
over here will not foul up the town so much with the
Union. We could use big business to help hold our
young people in this area-and frankly to provide
more work for us all. I am worried about the Bersted
plant (Appendix A).
Upon the conclusion of the speech employee Bellows,
a car salesman, spoke up and said that he personally knew
Mr. Noll would never sign a contract. While there is
nothing in the record to suggest that Bellows spoke as an
agent in behalf of Respondent, Shop Foreman Hawkins,
who had completed reading Noll's speech, made no com-
ment to Bellows' remarks.
During the period between the two meetings discussed
above a conversation occurred between employees
Kitchen and Robinson and Garage Manager Williams
which bears significance to the issues presented here.
Thus Marion Kitchen credibly described how he and
Billy Robinson were talking about the Union with Wil-
liams during a coffeebreak and at one point Robinson
changed the subject and told Williams he would like to be
reassigned to work on the shop's front-end alignment
machine, in the absence of the regular operator of the
machine. During the same conversation Kitchen men-
tioned to Williams the possibility of buying a used station
wagon. In reply to both men Williams said, "Well, if the
Union goes I can't help you fellows. My hands will be
tied. If it don't go maybe I can help you fellows and
maybe you fellows can get what you want."8
2. Conclusions
A review of the foregoing findings is clearly illustrative
of conduct and statements proscribed by the Act. Thus
President Noll in his two speeches left no doubt in the
minds of those who heard him that adherence to the
Union would be distinctly detrimental, describing the
misfortunes that followed the Union's last efforts to ar-
rive at an agreement with him, and inferring that in the
event he did "accept" a contract then working conditions
would deteriorate; that is to say, the men would be work-
ing strictly on a production basis which some of them
might not be able to make. Citation of authority or
detailed analysis are hardly necessary to conclude that
these remarks are something entirely different from the
freedom of speech guaranteed by Section 8(c) of the Act.
On the contrary, it is quite obvious that Noll was deliver-
ing to his employees a warning of events to come. I con-
sider this the restraint and coercion contemplated by Sec-
tion 8(a)(1) of the Act and so conclude and find.
5 The records of the Board disclose that a trial in Cases 17-CA-2977
and 17-RC-5212, McGraw-Edison Co. (Bersted Manufacturing Divi-
sion), was held in January 1967 and that the Trial Examiner 's Decision is-
sued on September 11, 1967 [172 NLRB No. 178].
6 The credited account of Gudfoyle.
7 In quoting the allegedly offending excerpts of Noll 's speech I have set
forth the text with such preceding in following portions as I believe
properly establishes the context . References to each excerpt are to the ap-
propriate pages of the full text in Appendix A, infra.
8 The credited testimony of employee Kitchen. Williams testified that
the conversation took place but denies that he made any promises to the
men, stating that he was simply attempting to avoid making any changes
while the union matter was outstanding . Based upon my observations and
upon the incongruity of another of Williams' statements, I do not credit
him except as his testimony is corroborated by credible witnesses, in-
volves information within his peculiar knowledge , or constitutes an admis-
sion contrary to Respondent's interest. The other item of testimony which
impels me to this conclusion is Williams ' testimony with respect to the
refused certified letter which bore the return address of the Union. During
a period when it was conceded that union rumors were rampant
throughout the town and President Noll was aware of other shops being
organized Williams was instrumental in refusing the Union's letter. When
asked on the stand if he related this letter to union activities he replied,
"No." Because I deem such an answer at least unrealistic I am not
disposed to credit Williams except as qualified above
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equally well established is the interrogation of em-
ployees, particularly in a context of other unlawful con-
duct.9 Accordingly, when, at the December 5 meeting
Noll went from man to man asking each why he had
joined the Union he was thereby intruding himself into a
matter which was clearly none of his business. I would
conclude and find that he thereby interfered with,
restrained , and coerced his employees in further violation
of Section 8(a)(I).
Similarly, when Noll in his speech related the possible
advent of the Union to the business and economic deteri-
oration of the community he was indulging in something
more than speculation . What he was telling his employees
was that their choice of a union to represent them could
well bring about a loss of business to the community, loss
of jobs to the residents, and a shunning of the area by out-
of-town employers whose coming might bring them
economic advantages. This is clearly a restraint upon the
free choice of those who would vote for or against a union
and most certainly constitutes further interference,
restraint, and coercion.
And finally, to the extent that Garage Manager Wil-
liams conditioned a "deal" on a used. car or a reassign-
ment to a more favorable job to the failure of the Union to
win the election , and this I find that he did, he was
thereby promising employees Kitchen and Robinson
benefits. This I conclude and find to be a further inter-
ference, restraint , and coercion upon them in the exercise
of their rights guaranteed by Section 7 of the Act thereby
violating Section 8 (a)(1).10
B. The Refusal to Bargain
It is General Counsel's contention that when the Union
requested recognition and bargaining, Respondent
reacted in the manner described above. The Union al-
ready represented a majority of the employees in the unit
agreed upon as appropriate for the purposes of bargain-
ing. This, it is claimed, can be established by the signed
union authorization cards in the Union 's possession. Ac-
cordingly, it is contended, because the Respondent's sub-
sequent doubt of this claimed majority was not made in
good faith, as indicated by its subsequent unlawful con-
duct, and because the conduct was calculated to destroy
the Union's established majority, Respondent thereby
refused to bargain with the Union in good faith. Because
the existence of this majority is a sine qua non for any
finding of refusal to bargain an analysis of the evidence
upon which it is based it is the first order of business.
Preliminary to such an analysis, however, is the
arithmetical determination of what constitutes a majority
in this instance, and, with relation to the claim and denial,
as to what date such a claim must be established.
1. The request and refusal
A consideration of the findings made above (supra),
demonstrates that on or about November 23, 1966, the
Union's first letter of request arrived at Respondent's of-
fice and was refused, with the knowledge and consent of
Garage Manager Williams. I find it quite unnecessary to
belabor this event. On the one hand President Noll was
admittedly aware of the Union 's organizing efforts among
9 Johnnie 's Poultry Co, 146 N LRB 770, 775
10 M. J. McCarthy Motor Sales Co, 135 NLRB 828, 834, enfd. 309
F.2d 732 (C.A. 7)
the automotive shops in the community. On the other, the
Union's addressed letter was clearly identified for what
it was -a letter from the Union. I am not disposed to be-
lieve that Respondent operates it business affairs
generally in such an inefficient manner as would be sug-
gested by its refusal of registered mail. On the contrary,
particularly after reading and rereading this record and
the testimony of Noll, Garage Manager Williams, and
Shop Foreman Hawkins, I am persuaded that the
Union's letter was refused only because it was believed
to be what it actually was - the Union's request for recog-
nition. Under this circumstance alone I would conclude
and find that Respondent thereby manifested an absence
of any good faith which might otherwise attach to its
doubt of the Union's majority status. This action, plus
Respondent's refusal to even reject the request, turning
it over to its attorney instead, and the subsequent conduct
in which it engaged (which conduct I have found to con-
stitute unlawful interference, restraint, and coercion) all
satisfy me that an adequate demand for bargaining was
made and that the subsequent conduct constitutes a
refusal in bad faith.'' In any event, lest there be any lin-
gering doubt that a demand was made, the record is clear
that the second identical letter and the telegram contain-
ing the identical message were both received.
2. The date of request
On November 23, 1966, the Union made its first
request; on November 28, 1966, the Union filed its peti-
tion for an election in Case 17-RC-5251; on November
30 it sent its second letter of request; and on December
1 the telegram containing the request was delivered to
Respondent. Quite apart, therefore, from any considera-
tion of the effectiveness- of the Union's first request for
recognition and bargaining two other requests were ad-
mittedly made and stated to be continuing requests, and
the filing of the Union's petition for an election may inde-
pendently be viewed as a continuing request for recogni-
tion and bargaining, in and of itself.12 I therefore conclude
and find that any claim of majority established by the
Union in an appropriate bargaining unit on and after
November 23, 1966,,would suffice to establish its majori-
ty representative status.
3. The appropriate unit
It is agreed upon by all parties that the following, con-
stitutes a unit appropriate for the purposes of collective
bargaining: All service and maintenance employees of
Respondent employed at its Moberly, Missouri, facility,
excluding office clerical employees, salesmen, profes-
sional employees, guards, and supervisors as defined in
the Act.
4. The arithmetic
The parties have stipulated that between November 21
and December 10, 1966, there were 26 employees em-
ployed in the unit found to be appropriate., Accordingly,
to demonstrate its numerical majority the Union must
establish that during that period it had been accepted by
14 or more of the employees.
"Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d 732 (C.A D.C).
1' See Ivy Hill Lithograph Co., 121 NLRB 831, 835, fn.- 13,
Automotive Supply Co., 119 NLRB 1074.
NOLL MOTORS, INC.
5. The signed authorization cards
During the course of its organizing campaign the Union
solicited signatures of employees on cards which bore the
following inscription:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employee of the
hereby authorize the International Association of
Machinists AFL-CIO to represent me and, in my
behalf, to negotiate and conclude all agreements as
to hours of labor, wages, and other conditions of em-
ployment.
The full power and authority to act for the under-
signed as described herein supersedes any power or
authority heretofore given to any person or organiza-
tion to represent me, and shall remain in full force
and effect for one year from date and thereafter, sub-
ject to thirty (30) days written notice of my desire to
withdraw such power and authority to act for me in
the matter referred to herein.
Three cards were signed by employees who credibly at-
tested to their own signatures and to the date on which
each signed the card,'3 as follows:
Robert Yancey Nov. 23
Leon Newby Nov. 22
Charles Staiger Dec. 5
In addition, Union Representative John Morgando
credibly testified that he was present at a union meeting
on November 22 at which he explained the objectives of
the Union to the employees of Respondent who were
present. They were told that if a majority of them signed
authorization cards the Union would request recognition
and bargain in their behalf. Blank card forms were dis-
tributed to those present. They filled them out, signed
them, and returned them to Morgando before the close of
the meeting. Eleven cards were thus received from the
following:
William James William J . Perkins
Billy L. Robinson Joseph J . McCallum
Mike McCallum Marion R . Kitchen
Oscar B. Williams Roosevelt Oliver, Jr.
Roger Smith Donald Kroner
Luke H . Guilfoyle
No objection was registered to the authenticity of any of
the foregoing cards excepting Oliver's, whose signature
was printed. Employee Roger Smith credibly testified
that on the night of the meeting he saw Oliver with a card
in his possession and he also saw him turn the card in with
those of the other employees. He did not see Oliver fill
out the card or sign it. As Morgando has credibly testified
that all cards distributed were returned to him filled out,
and as Smith has testified that Oliver turned his card in I
would conclude and find that the card received by Mor-
13 Consistent with the discretion vested in me by the Board the wit-
nesses called by the General Counsel were cross-examined fully on voir
dire, with my permission, as to the circumstances under which they signed
1033
gando and listed above was filled out and returned by
Oliver at the meeting and is valid for all purposes herein.
In addition to the cards collected by Morgando at the
November 22 meeting he credibly testified that he per-
sonally secured the signature of Employee Donald Moore
on his card, on the date indicated , November 30, 1966. In
the absence of any objections to the procuring of Moore's
authorization and upon Morgando 's credited testimony
I would conclude and find that this is a valid authorization
for all purposes herein.
Two cards were submitted in support of the Union's
majority claim which are of questionable validity-the
cards of Robert E. Austin and Emil Meac hum. Because
it would appear that the Union has been designated by 15
other employees , an amount in excess of that required for
a majority, I find it unnecessary to count the Austin and
Meachum cards . However, so that my findings will be
complete, I will note that because Emil Meachum could
not be located to testify concerning his card it was agreed
among the parties that upon the submission of his signed
form W-4, Bureau of Internal Revenue Withholding Ex-
emption Certificate, and my comparison of his signature
on that form with the one on his authorization card my
determination of the card's authenticity would be ac-
cepted as final . I have made a visual comparison of the
two signatures and find them to be identical. I accordingly
conclude and find that Meachum's card would be valid
for all purposes herein.14
Robert E. Austin identified his signature on an
authorization card and testified that he did not know
"most of what he was signing" and that he never read the
card . Because testimony of this variety , coming as it does
after the fact, partakes of the vice present in all parol
evidence proffered to alter the terms of a written docu-
ment, I view it with some reservation. Austin, an intel-
ligent appearing adult, did not impress me as one who
would make a practice of signing forms or documents
without first reading them, or at least knowing what he
was doing. And I would not be inclined to the view that
he made an exception in this instance . On the contrary, I
would reject his testimony and accept his signed card as
a valid designation of the Union.
By way of recapitulation, therefore, and without includ-
ing the cards of Meachum and Austin, I conclude and find
that at all times relevant herein the Union had in its pos-
session 15 valid employee designations when last it
requested that Respondent recognize it as the representa-
tive of a majority of its 26 employees for the purposes of
collective bargaining.
6. Conclusions
In the bargaining unit agreed on as appropriate I have
found that during the period November 21-December
10, 1966, there were 26 eligible employees. To constitute
a numerical majority 14 or more would be required to
authorize the Union to represent them. On the basis of
the findings I have made herein, I conclude and find that
during this period 15 employees did so, having signed
authorization cards which I have counted as valid,
authentic designations.
the authorization cards Bryant Chucking Grinder Company, 160 NLRB
1526
14 Heck's Inc., 166 NLRB 186, fn. 1; Mink-Dayton, Inc., 166 NLRB
604.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled, of course, that an employer may insist
on a Board election as proof of a union's majority, as oc-
curred here; but it is equally well settled that it may not
lawfully refuse to bargain under such circumstances when
its refusal to accept the union's majority claim is
grounded not upon its good faith doubt but rather upon "a
rejection of the collective-bargaining principal or by a
desire to gain time within which to undermine the
Union." 15
Here Respondent refused even to accept the Union's
letter of request and followed this by calling meetings of
its employees where it voiced threats of what would
occur if the Union were accepted by the employees, and
where it questioned them concerning their union member-
ship. Meanwhile it sought by promises of benefit to in-
fluence,the votes of two of its employees to defeat the
Union. Because all of this clearly discloses that the
Respondent's refusal to bargain and its doubt of the
Union's majority status lacked the good faith required of
it, and because I find that Respondent had thus engaged
in conduct seeking to undermine the Union's existing
majority, I conclude and find that its failure and refusal to
recognize and bargain with the Union was a violation of
Section 8(a)(5) of the Act, and further interference,
restraint, and coercion in violation of Section 8(a)( 1).16
7. Subsequent developments
Sometime after the close of the trial there was sub-
mitted to me by mail a handwritten document bearing
what purports to be the signatures of 14 individuals in
Respondent's employ as of May 5, 1967. This document
stated in essence that the signatories were led to believe
that the signing of cards was only a "formality to allow an
election." As a consequence, they state, they have de-
cided that they want no part of the Union.
The purpose of the union authorization card is clearly
stated on its face (supra) and the credited testimony is
ample that all the cards signers were aware of the nature
of the cards when they signed them. I am not disposed to
consider at this late date evidence of doubtful weight, to
the contrary." Nor am I disposed to consider further the
purported desire, as of May 5, 1966, to abandon the
Union. My findings and conclusions herein established
that as of December 10, 1966, and the 2 weeks previ-
ously, the Union was the bargaining representative of
Respondent's employees. That they may have had -a
change of heart since that time, if indeed they have, does
not rebut the presumption of a majority which continues
from the date of the Employer's unlawful refusal to
bargain."' I accordingly reject any suggestion that would
impair the obligation of Respondent to bargain with a
representative which I find to have been freely designated
in November and December 1966.
C. Objections to the Election
In addition to the foregoing findings and conclusions
upon which I shall base my recommendation for a remedy
to the unfair labor -practices committed, I also have before
me objections to the conduct of election in Case
17-RC-5,25 1, referred to me by the Regional Director for
disposition.
A review of the pleadings and related evidence dis-
closed that the objections raised are substantially identi-
cal with the allegations of Section 8(a)(1) in the com-
plaint. To the extent, therefore, that' I have already
treated of these allegations and found certain of them to
constitute unlawful conduct, as alleged, it would be an
undue burden upon the record and reader to reiterate
these findings in a parallel context. Suffice it to say that in
the instances of interference, restraint, and coercion
which I have already found (supra), it is an a fortiori
conclusion that such conduct interferes with the exercise
of the free choice of voters necessary for an election.ts
Accordingly, I shall recommend that representation elec-
tion heretofore held in Case 17-RC-5251 be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with its business opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It has been found that Respondent has violated the Act
in certain respects. I will accordingly recommend that an
order issue requiring Respondent to cease and desist
therefrom and to take certain affirmative action which
will effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact , conclu-
sions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended , I recommend2° that Noll Motors, Inc.,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening its employees with economic reprisals
and more arduous working conditions if they selected
District No. 9, International Association of Machinists
and Aerospace Workers , AFL--CIO, as their bargaining
representative.
(b) Promising their employees benefits as a induce-
ment to vote against the aforesaid labor organization in
the pending election.
(c) Unlawfully interrogating their employees concern-
ing their union membership and sentiments.
(d) Refusing to bargain with the aforesaid District No.
9, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
15 Joy Silk Mills, Inc, supra at 1264 See also Winn-Dixie Stores, Inc.,
143 NLRB 848.
16 Mink-Dayton , Inc., 166 NLRB 604
19 Sagamore Shirt Company, 153 NLRB 309 , 321, enfd in relevant
part 365 F . 2d 898 (C.A.D.C )
18 Sagamore Shirt Company, supra at 321 ; Sheridan Creation, Inc,
148 NLRB 1503
19 Irving Air Chute Company, Inc, Marathon Division, 149 NLRB
627, affd 350 F.2d 176 (C.A 2)
20 In the event that this Recommended Order be adopted by the Board,
the word "Recommended" shall be deleted from the heading and wher-
ever else it appears thereafter, and for the words "I Recommend" there
shall be substituted the words "The National Labor Relations Board
Hereby Orders "
NOLL MOTORS , INC. 1035
representative of employees in the following unit found to
be appropriate for the purposes of collective bargaining:
All service and maintenance employees of Respondent
employed at its Moberly, Missouri, facility, excluding of-
fice clerical employees , salesmen , professional em-
ployees, guards, and supervisors as defined in the Act.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative
of all Respondent's employees in the unit found ap-
propriate and, if an understanding is reached, embody
such understanding in an signed agreement.
(b) Post at its Moberly, Missouri, facilities, copies of
the attached notice marked "Appendix B."21 Copies of
said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by the Respondent
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive 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 said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.22
21 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
== In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX A
As most of you already know, I am not much of a
speech maker and when I do speak, I don 't normally
write it all out like this. I am reading this today
because I don't want somebody to say I said
something that I did not say.
To come quickly to the point, the labor union, as
you all know , is here in town trying to sell union
memberships . These union membership salesmen
have been practically going from house to house like
vacuum cleaner and magazine salesmen . Like these
vacuum cleaner and magazine salesmen , these union
membership salesmen have a job to do and can make
many promises . Now, I do want to make one thing
real clear here - a sucker is born every minute but
maybe I can keep you from making a mistake. These
salesmen of union memberships can promise you al-
most anything - $ 1.00 an hour raise - a new car
every year or what not but they can't even guarantee
you that if you vote for the union they will get any
contract at all signed. All they can promise is the best
contract they can work out.
What was it -about 10 or 12 years ago the union
won an election over here -and they negotiated and
negotiated-but no contract was ever signed and the
employees voted the union out entirely about a year
later. At this time no one can say what if anything
anyone would do except we would bargain in good
faith. No one knows now if any agreement would be
reached . These union men will often tell you
anything to make a sale of union membership. They
may promise pensions or more holidays or
money-how long was it they had pickets at our
place in 1948-I think it was for two or three months
but the union officials never got any contract signed
at all. They promised a lot but they simply were not
able to deliver besides leaving town and did not pay
the men for picketing. I'll do my best for you, but as
I hope you all already know-the other garages in
town hope we will have trouble so they will get the
work that you are now doing . And this I don't believe
will help any one of you or your company pay your
bills.
No doubt , we have made some mistakes here at
this company but feel we have done our very best. I
simply do not see how bringing in some outsider is
going to help us solve any of our problems - in fact it
can be a trouble maker . As you know , the union is
just that - trouble in the past. You don't hear of
strikes in non union plants, do you ? I don 't believe
you want to invite the union in here and put yourself
in a position where someone in St . Louis can say "hit
the streets," do you? Some of you might say-well,
even if the union management in St . Louis did say
"hit the streets" I wouldn't do it. Maybe you
wouldn 't but the union is always telling you that you
ought to do this and so because everyone else is
doing it-and I suppose that could include striking
and walking the picket line whether or not you could
meet your house, car or tax, and mortgage payments.
This sort of go along with the crowd talk doesn't put
money in your pay envelope. I'm sure none of us
want the Adolph Hilter group thinking in this
country. Our families mean so much to -us to do
otherwise . Just because someone else wants to be a
fool doesn't mean we have to do so also . Sometimes
you know, misery love company - and some people
have made foolish mistakes and they want to pull
other men along with them so their mistakes won't
look so foolish.
These union salesmen are not like our salesmen on
our sales force - if our salesmen misrepresent
something, we have to live with those people the rest
of their lives - not so with union salesmen - one
group of union membership salesmen can come into
town and canvass the town , get the dues , etc., and
then another group can come in and get paid for col-
lective bargaining, etc. They don't have to stay in
town and face the music. They can promise all sorts
of things they are going to get me to do- and then
leave town.
As for honesty - didn't some of you tell me that
when they got you to sign the union cards, they told
you that before they did anything they were going to
get all the dealers, garages and filling stations to sign
up. They weren't truthful with you! They haven't
done that . Businesses and people are already leaving
Moberly and Randolph county. We have less popula-
tion now than we had here 20 years ago. The union
over at the shoe factory alone, I am told, took over
600 jobs out of town-and I wish we had the service
and sales of those people in town right now. I don't
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know what the situation will be with the MFA
Packing plant at Macon as the union won an election
over there but MFA closed the plant. Whether it was
because of the union, I don't know. I certainly hope
the people over here will not foul up the town so
much with the union . We could use big business to
help hold our young people in this area-and frankly
to provide more work for us all. I am worried about
the Bersted plant.
While I want to make it perfectly clear that you
have every right to vote union or not as you choose,
I hope you will not bring in these potential friction
makers into our group. I certainly do not feel guilty
in the least in asking you to vote No -meaning no
union. A year from now or later if you are not
satisfied you can bring the union in -but once in the
unions are not so easy to get out.
I understand fully why some of these people in
large companies must have unions if anyone is going
to know they exist as an individual. That is certainly
not true here and you know it. It has not been at all
begrudgingly that we have provided paid holidays,
vacations, and the pay that we have. As you know
dealers here in this town already pay 5% more on
work than the mechanics in the shop got in percent
in Kansas City after striking for two or three months.
Frankly, I think we all here have far more to gain by
voting No - meaning "No Union" and then us work-
ing together for our mutual improvement and better-
ment than we are to have the paid professional trou-
ble-makers of St. Louis and Kansas City in here.
Did you ever stop to think what these paid union
professional salesmen of union memberships have to
gain from selling just 100 memberships to garages,
filling stations, and dealers? Let me tell you-in ten
years alone about $75,000-which is out of the
pockets of the employees. You talk in those
figures-you can see why they drool after these
union memberships.
Please don't misunderstand me-I'm not in the
least mad at any of you who signed these union
cards. Some of you were out right misled-and
others of you just went along without knowing what
it was all about. From now on I do figure that you
know more about the whole situation.
You do what you want to-it is a free
country - I've told you how I feel and why I think we
are all much better off working together than
fighting. Don't think I am afraid, I'm not. I can hire
experts to negotiate for me -but as I said I feel we
spend too much of our time together to have a lot of
friction. We can, do us all a favor, by voting "No
Union" in this thing and getting it over as soon as
possible so that we can work things out together. I
hope you all agree. Thanks very much for your time
and if you have any questions, Ask.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten you that there will be
economic reprisals or more arduous working condi-
tions if District 9, International Association of
Machinists and Aerospace Workers, AFL-CIO, is
your bargaining representative.
WE WILL NOT promise you benefits to induce you
to vote against the aforesaid Union in any pending
election.
WE WILL NOT unlawfully question you concerning
your union membership or sentiments.
WE WILL, upon request, bargain collectively with
District 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclu-
sive representative of all the employees in the bar-
gaining unit described below concerning rates of pay,
wages, hours of employment, and other conditions of
employment, and, if an agreement is reached, em-
body it in a signed agreement. The bargaining unit is:
All service and maintenance employees of
Respondent employed at its Moberly, Missouri,
facility, excluding office clerical employees,
salesmen, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of
your rights to self-organization or to form, join, or
assist any labor organization, or to bargain collec-
tively with us concerning terms or conditions of em-
ployment through the representative you select, or to
refrain from any of these activities if you so choose,
except as these rights may be affected by a contract
validly made under the National Labor Relations
Act, whereby membership in a labor organization is
a condition of employment after the 30th day follow-
ing the date of the contract or the beginning of a per-
son's employment, whichever is later.
You and all our employees are free to become or
remain, or to refrain from becoming, members of, or
withdrawing membership from, any labor organization.
Dated By
NOLL MOTORS, INC.
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone 374-5181.