Peyton Lincoln-Mercury

National Labor Relations Board - Board Decisions

Jan 22, 1974

208 N.L.R.B. 596 (N.L.R.B. 1974)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peyton Lincoln-Mercury and International Association
of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 94 and International Association
of Machinists and Aerospace Workers, AFL-CIO,
Local Lodge 1484 ; Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO,
Painters Local Union No. 1798; Automotive Em-
ployees, Laundry Drivers and Helpers Local No. 88,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 3I-CA-3549
January 22, 1974
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On July 12, 1973, Administrative Law Judge Henry
S. Salim issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
In his Decision, the Administrative Law Judge
found that the incidents forming the basis for the
8(a)(1) allegations in the complaint, promises of
better work conditions if employees ceased support-
ing the Union, were de minimis non curat lex and that
the evidence, on an overall perspective, was insuffi-
cient to support the allegations of the complaint.
Accordingly, he recommended dismissal of the
complaint in its entirety. We find merit in the
General Counsel's exceptions.
The record shows that Respondent sells and
services automobiles and automobile parts. At the
time in question, late 1972, Respondent and the
Union were parties to a collective-bargaining agree-
ment having an expiration date of December 31,
1972.1 Early in November, the Union involved
herein submitted proposals for a new contract, and
negotiations ensued between it and the Respondent
shortly thereafter.
Shortly before Thanksgiving, mechanic Roger
Anderson and two other employees were having a
conversation about the Union when they were
approached by Bobby Braido, a supervisor. Braido
1 Dates are 1972 unless stated differently.
2 The Administrative Law Judge found this was in reference to the sales
broke into the employees' conversation, asking
Anderson what he expected from a union contract.
Anderson replied that he (and presumably the other
mechanics) wanted "50 percent," namely 50 percent
of the hourly wage rate paid by customers. Thereu-
pon, according to Anderson, Braido stated "if we
weren't union, that we would have our 50 percent."
On another occasion, a short time thereafter,
Anderson told Braido that he objected to having to
work on the day after Thanksgiving. According to
Anderson, Braido replied that "if we weren't union,
we would have the day after Thanksgiving off, that
the people up front had it off."2
Lloyd Green, a mechanic, also testified to a
conversation that he had with Service Manager
Harry Mills. According to Green, Mills stated that
"if it wasn't for the union, Peyton [Respondent's
president] would do more for us and working
conditions would he better."
Union Steward Eddie Grade and employee David
Irvin also testified that Mills on another occasion
and Respondent's president, Peyton Cramer, prom-
ised in effect that, absent a union, working condi-
tions would be better. Although the Administrative
Law Judge stated that he had problems with the
credibility of Grade and Irvin, and apparently
discredited them, it is clear that he encountered no
such problems regarding the credibility of Anderson
and Green and that he at least inferentially credited
their testimony. We agree that the record supports a
finding that Anderson and Green are credible
witnesses.
The Administrative Law Judge nevertheless found
that the allegations testified to by the witnesses had
little, if any, tendency to restrain or coerce the
employees and were de minimis non curat lex. Citing
American Federation of Musicians, Local 76, AFL-CIO,
202 NLRB 620, he recommended that the complaint
be dismissed in its entirety. We disagree.
We find American Federation of Musicians distin-
guishable from the instant case . In that case, the
union had threatened a group of individuals with
fines when, as it happened, one of those individuals
in the group was a supervisor-indeed the son of the
employer. Under normal circumstances the fining of
a supervisor for the reason there operative would
warrant the finding of a violation of the Act.
However, aside from the nature of the incident, the
respondent took corrective action by repudiating the
threat very shortly thereafter, and the Board con-
cluded that in such circumstances no finding of a
violation or imposition of a remedy was warranted.3
In the instant case, the record shows that the
statements to Anderson and Green, to the effect that
personnel who apparently were not unionized
R See also Columbia Typographical Union No 101, International Typo-
208 NLRB No. 86
PEYTON LINCOLN-MERCURY 597
employees would earn more and receive more time
off if they were not represented by a union, came at a
time when the Union's contract was nearing expira-
tion and when a new contract was to be negotiated.
Inasmuch as such subjects as increased earnings and
more time off are of vital importance to employees,
these remarks could only be interpreted as promising
better work conditions if the employees defected
from the Union. As the record in any event fails to
disclose that Respondent took any corrective action
to cure the effects of the coercive remarks, we are not
prepared to say that in these circumstances the
remarks to Anderson and Green had limited impact.
Accordingly, unlike the Administrative Law Judge,
we do not find Respondent's conduct de minimis.
Rather, to the contrary, we find that such remarks
constitute illegal promises of benefit to the employ-
ees if they ceased supporting the Union, and
therefore violate Section 8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Peyton Lincoln-Mercury is engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union involved is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promising employees better working condi-
tions if they ceased supporting the Union, Respon-
dent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Peyton Lincoln-Mercury, Los Angeles, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that they will have better
working conditions if they cease supporting the
Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their statutory rights.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business at Los Angeles,
California, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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.
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
graphical Union of North America, AFL-CIO, 193 NLRB 1089, where no
violation was found since a local union's illegal fining of a supervisor had
been overturned by the International and the fine had been returned to the
supervisor before the issuance of a complaint by the General Counsel.
Member Jenkins does not subscribe to the Musicians case nor to the
dictum concerning "corrective action" in the next paragraph
4 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise our employees that they
will have better working conditions if they cease
supporting the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to organize them-
selves, to form, join, or help unions, to bargain
collectively through the representatives they
choose, to act together for collective bargaining or
other aid or protection, or to refrain from any or
all of these things.
All our employees are free, if they choose, to join
the Union or any other labor organization.
PEYTON LINCOLN-
MERCURY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7352.
DECISION
HENRY S. SARM, Administrative Law Judge: This
proceeding, heard at Los Angeles, California, on April 26,
1973, pursuant to charges filed the preceding January 22
and March 1,1 and a complaint issued March 21, presents
the question whether Respondent, herein called the
Company, violated Section 8(a)(1) of the Act by promising
its employees better working conditions if they were not
represented by the Charging Party Unions.
Upon consideration of the entire record and of the brief
filed by the General Counsel on May 21, 1973, there are
made the following:
FINDINGS OF FACT
The Business of the Company and the Labor
Organizations Involved
The Company, a California corporation, is engaged in
Harbor City, California, in the retail sale of new and used
automobiles, parts, and related products. During the past
year, Respondent had a gross volume of business in excess
of $500,000 and received automobiles, parts, and materials
valued in excess of $50,000 for use at its place of business
directly from suppliers located outside the State of
California. Upon the foregoing admitted facts, it is found
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that the Unions listed in the caption of this proceeding are
labor organizations within the meaning of Section 2(5) of
the Act.
The Alleged Unfair Labor Practices
The Unions and the Respondent Company were parties
to a collective-bargaining agreement which was executed
on March 12, 1970, and had a termination date of
December 31, 1972. Upon timely notice by the Machinists
and Aerospace Workers Union, the said Union, by letter
dated either November 11 or November 17, submitted to
the Company its proposals for a new contract to which the
Company offered its written counterproposals on Novem-
ber 27. The parties met on December 5, and the Union
submitted its revised proposals on December 15. Another
negotiating session was held on January 5, 1973, but no
agreement was reached as of April 26, the date of the trial.
Roger Anderson, who has been employed for 4 years by
Respondent as a mechanic, testified that in the latter part
of November, before Thanksgiving, Bobby Braido, body
shop manager, who is found to be a supervisor within the
I All dates are 1972, unless otherwise indicated
4 Anderson testified that during a coffeebreak, these two employees told
him that they did not want the Union to represent them now that the
meaning of Section 2(11) of the Act, was listening for
about 5 minutes to a conversation in which Anderson was
engaged with employee Mills and Roberts,2 when he
interrupted and asked Anderson "what [he] expected out
of a union contract," whereupon Anderson replied that he
wanted "50 percent," namely, 50 percent of the hourly
labor rate paid by customers. Braido, according to
Anderson, said ". . . if we weren't union, that we would
have our 50 percent."
Anderson also testified that he complained to Braido a
week later, during a coffeebreak, when he came up to
Braido and told him he objected to having to work the day
after Thanksgiving, to which Braido replied that, ". . . if
we weren't union, we would have the day after Thanksgiv-
ing off, that the people up front had It off." 3
Anderson testified on cross-examination that Cramer,
Respondent's president, called a meeting of the shop
employees in his office on January 8, 1973. Anderson's
testimony follows: Cramer "discussed what the Union had
requested and what he had offered the Union, what they
had agreed upon. He read us a letter from the National
Labor Relations Board, he said, of what the Union could
do, what the employees [were] entitled to do, that if the
Union had a strike, that we could cross the picket line
without the threat of being blackballed from the Union.
They could fine us, but they couldn't collect a fine, that he
could replace us, and that he would because he had a
business to operate. But later on he told us that he
couldn't."
Anderson testified that after Cramer's meeting with the
employees ended, Barry Buxton, an employee, asked
Cramer to explain the $4.50 hourly flat rate that he had
offered to their Union, the Machinists and Aerospace
Workers, which represented the shop mechanics. Cramer,
continued Anderson, made it clear that it was illegal for
him to make an offer to the employees, as the Respondent
and Union were engaged at the time in negotiating a
contract, but he would try to answer Buxton 's question by
citing a hypothetical situation. Anderson testified that
Cramer explained to them that a proposal of his for the
mechanics to be paid an hourly flat rate of $4.50 could be
accomplished if all those mechanics presently employed by
Respondent were to be classified as skilled mechanics and
those "shop employees" who would be hired in the future
were classified unskilled and thus would receive a lower
hourly wage than those mechanics now working for the
Company
On cross-examination, Anderson acknowledged that
during this conversation, Cramer never promised the
employees this proposed $4.50 hourly wage rate condi-
tioned on there being no union in the shop.
Barry Buxton corroborated Anderson's testimony as to
what occurred in the shop after the January 8 meeting was
over at or about 5 p.m., when Cramer explained to
employees Estes, Grade, Tackett, and Irvin, as well as
Anderson and himself, what the $4.50 hourly flat rate
"meant" by citing "a hypothetical situation."
John Estes, a mechanic, who is presently one of
collective-bargaining agreement with Respondent was about to expire
3 This is an unmistakable reference to the sales personnel who were
apparently not unionized
PEYTON LINCOLN-MERCURY 599
Respondent's mechanics, corroborated the testimony of
the other witnesses as to what occurred in the shop after
the January 8 meeting, when Cramer answered employees'
questions.
Eddie Grade, who has been union shop steward 4 years,
one of Respondent's mechanics, testified that he ap-
proached Harry Mills, service manager, in January 1973,
and engaged him in a conversation about the Union,
during which Mills told him that ". . . things would be
better if we didn't have a union.4 He said that I didn't
know Peyton [Cramer ] as well as he did, and I told him
that Peyton had had the past three years to show us some
indication that he would do the right thing by us, and he
hadn't. He hadn't done the right thing. I told him that
Peyton could have given us some time off to come out
there when it was slow and send us home. Different things
like that. Or days off to indicate that he wanted to do the
right thing. . . . I said that without the Union that we
would be working Monday nights until 9, and I said that
we would be working free motor clinics without having any
choice in the matter . . . . He said that we should give
Peyton a chance." On redirect examination Grade testi-
fied: ". . . that Harry Mills wasn't afraid to talk to me
about the Union, nor was I afraid to talk to him. We
weren't aware that we were saying something wrong, when
we was talking. He wasn't trying to be coy in not saying the
word `Union' and neither was I because we didn't realize
we shouldn't have been talking about that . . . . We
weren't afraid of what we were saying when we were
standing out there talking" [on Respondent's premises].
Grade testified also that at the employees' Christmas party
held on December 22, Peyton said, "that he didn't need
anyone to tell him how to run his business, that he had his
own pension plan, and health plans available to us."
On cross-examination, Grade stated that he was kept
informed of the negotiations between the Company and his
Union, as he was the union steward and that he knew prior
to the Christmas party the Company's offer of its proposed
pension and health fund and that the Company had
proposed to the Union its willingness to establish a pension
and health fund. Also, testified Grade, during Cramer's
talk at the Christmas party, which Grade described as "a
fairly short speech," that Cramer never mentioned the
Union nor did he "condition" his pension and health plans
"on getting rid of the Union."
David Irvin testified that he voluntarily left Respon-
dent's employ as a mechanic in March 1973. Mills, the
service manager of the Mechanical Department, testified
that he fired Irvin. Irvin also testified that during the last
week of December, he was present when Mills told Lloyd
Green, a mechanic, that ". . . without the Union, he thinks
the Company would run a lot better . . . that there
probably would be more benefits."
On cross-examination, when counsel for Respondent
asked him if he was "sure" that Mills said this, he answered
"not positive." When Counsel persisted, insisting that Mills
never made such a statement, Irvin said "I think he did."
When Counsel again asked, "Are you sure of that?" Irvin
replied "He said Peyton Cramer would like to run his own
business." At this point, the transcript reads as follows:
Q. You are sure that Mr. Mills said that Peyton
Cramer would like to run his own business, but you are
not sure of anything else, are you?
A. No, sir. This is what I overheard he was talking
to Lloyd Green.
Q. And the only exact words you remember Mr.
Mills saying is that Mr. Cramer would like to run his
own business; isn't that correct?
A. In his way, yes, I'd say.
Q. And that's all you remember Mr. Mills saying at
that time?
A. Right.
Lloyd Green, a mechanic, testified that in the "first part
of January" 1973, Harry Mills came over to his stall in the
shop, where he and Irvin were discussing the Union, and
after Mills stood there "listening ... to them, Harry got
into the conversation. Harry said that if it wasn't for the
Union, Peyton would do more for us and working
conditions would be better."
Braido testified he became body shop manager on
November 15, and prior to that time, he was employed by
Respondent as a "middleman." Basically, his testimony on
substantive matters was substantially the same as that of
Anderson. On cross-examination, it was established that all
of the conversations between Anderson and Braido
occurred after the latter became manager of the body shop
on November 15.
Mills, Respondent's service manager for over 5 years,
who is found to be a supervisor within the meaning of
Section 2(11) of the Act, denied he ever had a conversation
with Grade concerning the Union or that he ever told
Lloyd Green or any other employee, that Respondent's
president, Cramer, "would do more for the employees and
working conditions would be better if they got rid of the
Union . . . [or] without the Union, the Company would
run a lot better . . . [and] there probably would be more
benefits for the employees."
Peyton Cramer, president and co-owner of Respondent
Company, testified that immediately upon receiving notice
from the Union by letter dated November 11, with respect
to the impending expiration of the current collective-
bargaining agreement, he instructed his "supervisors,"
Braido and Mills, that he "was handling the complete
negotiations through Mr. Lerten with the Union and that
at no time was any person to discuss with any employee of
Peyton Lincoln-Mercury anything concerning the Union,
pros or cons, anything concerning wages, benefits, pen-
sions, anything on that subject." Cramer denied that at the
Company's Christmas party, he ever mentioned to the
assembled employees anything about the Union nor did he
mention anything about union negotiations. Cramer then
testified about a meeting in his office which he had with
"all the mechanics, body shop employees, porters and parts
department, anybody who was or would be covered under
the union contract." Present also were Braido, co-owner
4 Resp Exh 2, which is Grade's affidavit, given to a Board investigator,
contains no mention that Mills stated "things would be better if we didn't
have a Union " On cross-examination, he hedged his previous testimony by
stating "1 am reasonably sure that he said that things would be better
without the Union "
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Revson, and Tom Rees, controller of Respondent
Company. Cramer continued that he informed everyone
present of the present status of negotiations with the
Union, explaining the Company's and Union's proposals,
particularly the Company's offer of an hourly flat rate of
$4.50, and his offer to the Union that the day after
Thanksgiving should be a paid holiday. He continued that
he informed the employees which proposals had been
agreed to by the parties up to that time. He denied that at
any time during this meeting, he made a statement with
respect to better terms and working conditions if the
employees would "get rid" of the Union.
The afternoon of the same day as the employees'
meeting, Cramer received a message that Buxton wished to
see him, whereupon he met with Buxton at approximately
5 p.m. Buxton asked him to explain "what the $4.50 hourly
flat rate offer meant which the Company had proposed to
the Union." Also present were other shop employees who
joined in the conversation.5 Cramer answered not only
Buxton's question but also those of other employees who
were present.
Conclusions
To recapitulate, the following alleged incidents are the
basis for the contention that Respondent violated Section
8(a)(1). The first of these allegations is when Braido, the
body shop manager, while engaged in a discussion with
Anderson, inquired what the latter "expected out of a
union contract." Also, when Anderson complained to
Braido that he objected to not having the day off after
Thanksgiving, to which Braido is purported to have replied
that "if we weren't union, we would have the day off, that
the people up front had it off" Grade's testimony that
Mills, the service manager, allegedly told Grade, who
initiated a discussion about the Union with Mills, that
"things would be better off if we didn't have the Union."
Lloyd Green, a mechanic, in a conversation which he
initiated with Mills, alleged that Mills said: "without the
Union, he thinks the Company would probably run a lot
better . . . that there probably would be more benefits."
The issue here is whether Respondent, through Cramer
and its supervisors, Braido and Mills, interfered with,
restrained, and coerced employees Anderson, Grade, and
Green within the meaning of Section 8(a)(1) when they
allegedly made the statements detailed above.
In determining whether the above allegations testified to
by these employees are violations, the following facts must
be considered: The background in which the conversations
took place, the time and manner under which it was made,
and all the surrounding circumstances necessary to
5 Anderson, Tackett, Grade, and others
6 Nashua Manufacturing Corporation of Texas v N L R B, 218 F 2d 88E,
887 (C A 5), Welch Scientific Co v N L R B, 340 F 2d 199, 204 (C.A 2,
1965)
7 American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB 620
8 See Howard Aero Co, 119 NLRB 1531, General Electric Co, 119
NLRB 1821
conclude whether the conversations testified to by the
above participants had the coercive characteristics pros-
cribed by Section 8(a)(1) of the Act .6
In applying these principles to the facts in the case at
hand, it is evident that there was no violation of Section
8(a)(1), as the matters complained of by the General
Counsel had little, if any, tendency to restrain or coerce the
employees. The incidents complained of by the General
Counsel are de minimis non curat lex. Moreover, when one
considers the intimate, informal, and "first-name-basis"
relationship which existed between the employees and their
supervisors including Cramer, the president of the Compa-
ny, the fact that they discussed working conditions and the
Union, and that all of these conversations were initiated by
the employees themselves, it would seem to be rather
captious to hold that, under the circumstances present
here, these friendly conversations require a ruling of an
independent violation of Section 8(a)(1) or that any useful
purpose would be served by issuing a cease-and-desist
order based on them. The Board recently held "It is true
that some courts have held that the Board may not
withhold issuance of a remedial order once a violation is
found. We are not here disposed to find the quantum of
misconduct sufficient to constitute a violation. In this
connection, we believe the courts are coming to the view
that violations having little or no impact upon employee
exercise of statutory rights should not form the basis of
either a proceeding or a remedy under our Act." 7
Moreover, for the reasons indicated above, as well as the
credibility of Grade, the union steward, and Irvin to recall
some past events, there is insufficient evidence adduced by
the General Counsel on an overall perspective, upon which
to predicate a finding that Respondent interfered with,
restrained, or coerced the employees within the meaning of
Section 8(a)(1) of the Act.8
CONCLUSIONS OF LAW
1. Peyton Lincoln-Mercury is engaged in commerce
within the meaning of the Act.
2. The Unions are labor organizations within the
meaning of the Act.
3. The Respondent has not committed unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
In view of the foregoing conclusions, and upon the entire
record,9 it is found that the evidence warrants no finding
that the Respondent committed unfair labor practices
within the meaning of Section 8(a)(1) of the Act, and it
will, therefore, be recommended that the complaint be
dismissed in its entirety-
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order shall, as provided
in Sec 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.