Suburban Ford, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1980

248 N.L.R.B. 364 (N.L.R.B. 1980)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suburban Ford, Inc. and Automotive Transport
Chauffeurs, Demonstrators & Helpers, Local
604 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and Automotive, Petroleum and
Allied Industries Employees Union, Local 618,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Bob Hawkins. Cases 14-CA-
12580, 14-CA-12581, and 14-CA-12671
March 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 21, 1979, Administrative Law
Judge Stanley N. Ohlbaum issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and Charg-
ing Party Local 604 filed an answering 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Suburban Ford,
Inc., Imperial, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act
and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
248 NLRB No. 51
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT accuse any employee of dis-
loyalty for being a union member or exercising
any other right under the Act.
WE WILL NOT threaten to discharge any em-
ployee because he or she belongs to a union or
does anything else an employee has the right
to do under the Act.
WE WILL NOT ask any employee to tell us
what he or she is dissatisfied about, in order to
get him or her away from union membership
or any other right under the Act.
WE WILL NOT promise any economic benefit
to an employee for not joining or staying in a
union or for not doing anything else he or she
has a right to do under the Act.
WE WILL NOT tell any employee it would be
useless to try to bargain with us through a
union.
WE Wll.. NOT give any employee any assur-
ance of a long or steady job if he or she does not
join or drops out of a union.
WE WILL NOT withdraw or change any car
sales bonus contest, or take away or change
any salesman's demonstrator car, or change
any salesman's job, to get him or her to drop
out of or not join a union or to cause him or
her not to exercise any other right he or she
has under the Act.
WE WILL. NOT discharge or lay off an em-
ployee because he or she has joined a union or
done anything else he or she has a right to do
under the Act; nor try to scare any employee
away from a union or from doing anything
else he or she has a right to do under the Act.
WE WILL NOT hire unneeded extra employ-
ees-salesmen or clericals or others-in order
to destroy a union's majority strength to bar-
gain collectively with us on our employees'
behalf, nor so as to defeat or impede our em-
ployees' right to be represented by a union or
unions.
WE WILL NOT do any of these things, or
otherwise violate the National Labor Relations
Act, directly or indirectly, in order to destroy
or dissipate the collective-bargaining status of
your lawfully designated union representative,
or for the purpose of inducing you to cease
SUBURBAN FORD, INC. 365
from acting through such representative in
order to bargain with us collectively, as you
have the right to do.
WE WILL make each salesman in our
employ on April 30, 1979, whole, plus interest,
for all pay, commissions, job benefits of any
kind and extra expenses incurred, because of
each of the following actions we took on or
after April 30, 1979:
1. Our withdrawal of the "LTD" sales
bonus contest before its scheduled ending
date;
2. Our changing of our salesmen's demon-
strator cars;
3. Our shifting of our salesmen from new
to used car sales or vice versa;
4. Our taking on of unneeded salesmen, in
order to break up the majority status of
Teamsters Local 604 as our salesmen's au-
thorized collective-bargaining representative.
WE WILL additionally make whole Bob
Hawkins for all pay, commissions, and benefits
he lost, and all extra expenses he incurred,
with interest, because we fired him on June 6,
until he returned on June 9, 1979. And we will
remove from all of our files and records any
indication that he was fired for cause or in any
way because of his fault, and we will not make
any such statement to any prospective employ-
er or reference seeker.
WE WILL on request recognize and bargain
collectively in good faith with Automotive
Transport Chauffeurs, Demonstrators & Help-
ers, Local 604 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargain-
ing representative of our salesmen in the fol-
lowing appropriate collective-bargaining unit,
and we will embody in a signed agreement any
understanding reached:
All salesmen employed by Suburban Ford,
Inc., excluding all office clericals, guards,
professionals and supervisors as defined in
the Act.
WE WILL, on request, recognize and bargain
collectively with Automotive, Petroleum and
Allied Industries Employees Union, Local 618
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining represen-
tative of our clerical employees in the follow-
ing appropriate collective-bargaining unit, and
we will embody in a signed agreement any un-
derstanding reached:
All office clerical employees at the Imperial,
Missouri facility of Suburban Ford, Inc., ex-
cluding all salesmen, professional employees,
guards and supervisors as defined in the Act.
SUBURBAN FORD, INC.
DECISION
I. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHIBAUM, Administrative Law Judge:
This consolidated proceeding' under the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.
(Act), was heard before me in St. Louis, Missouri, on
July 11-13 and August 6, 1979, with all parties partici-
pating throughout by counsel and given full opportunity
to present evidence, arguments, proposed findings and
conclusions, and briefs. Post-trial briefs were received on
September 12. The record and briefs2 have been careful-
ly considered.
The principal issues are whether, after receiving and
declining requests for recognition and collective bargain-
ing from a Union on behalf of its automobile salesmen
and from another Union on behalf of its clerical employ-
ees, Respondent engaged in a variety of alleged unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act in order to destroy the Unions' claimed ma-
jority representational status and to abort a fair election
under the Act; and the appropriate remedy for any such
violations.
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONC[USIONS
II. JRISDICTION
At all material times, Respondent has been and is a
Missouri corporation with principal office and place of
business in Imperial, Missouri (the only location involved
here), engaged in retail sale and distribution of auto-
mobiles and related automotive products. During the
representative 12-month period ending May 31, 1979, im-
mediately antedating issuance of the complaint, in the
course and conduct of its said business, Respondent re-
ceived gross revenues exceeding $500,000, and also pur-
chased and caused to be transported to its said location
directly in interstate commerce from places outside Mis-
souri automobiles and related products valued in excess
of $50,000.
I find that at all material times Respondent has been
and is an employer engaged in commerce and in oper-
Ca.es 14-CA 12580 (charge filed on Max 8. 1979) h Teamters
local Nt)4), 14-CA-12581 (charge filed on Ma 9') hb\ Feamrnsrs I ocal
618), and 14-CA-12671 (charge filed on June 8 h Hobh lasxkinl where
merged in(o a consolidated complaint issued on June 21 h the Regional
Director for Region 14. superseding an erlier conllohdated complaint
tCases 14 CA 12580 and 14-CA 12581) isied hb him on Juie 8 Unless
oilhcrxi e stiacd, dales are 1970
2 Sixteen xi ll et s t il Ificd lll d Ih rc are oicr 8(X) pages of Irli rlpl.
cxhlhilTs. ld hriets Respondelnt' unopposed niolion to corIecl the tran-
script i hrcb\ granteld .X late brief , a , is, receic d fro rn I ocal 6104
on September 17
SUBURBAN FORD, INC.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act; and that at all of those times
Charging Party Unions have each been and are labor or-
ganizations as defined in Section 2(5) of the Act.
III. ALLEGED VIOLATIONS OF THE ACT
A. Background
Respondent is a retail dealer in new and used auto-
mobiles and trucks in suburban St. Louis. This case cen-
ters around the attempt of its salesmen and its clerical
employees to organize themselves for collective bargain-
ing-the salesmen through Teamsters Local 604 and the
clerks through Teamsters Local 618-and Respondent's
actions in response thereto. Alleged occurrences will be
taken up in chronological order so as to portray events
as they happened. For convenience, an appended chart
(Appendix A) chronologically summarizes allegations,
cross-referenced to complaint paragraphs, Act sections,
Decision sections (herein), and witnesses on each side,
and also set forth findings thereon and their chief bases.
[Appendix A omitted from publication.]
B. Alleged Unfair Labor Practices
1. April
In mid-April, Respondent's car salesman Norbert
Eugene Merz contacted Teamsters Local 604 with a
view toward its representing Respondent's salesmen in
collective bargaining. At a union organizing meeting on
April 19, 63 of the 9 or 104 salesmen, a clear majority,
signed and the same or next day gave to that union
membership application cards (G.C. Exhs. 3a-f), where-
by each did "voluntarily choose and designate it as my
representative for purposes of collective bargaining." Re-
spondent's clerical employees, who worked in close
proximity and conjunction with its salesmen, heard about
this and expressed interest in becoming organized for
collective bargaining, too. Accordingly, after meeting on
April 25 with Teamsters Local 618 Representative Por-
terfield, five of Respondent's six 5 clerical employees like-
wise signed and gave to that Union membership applica-
tion cards (G.C. Exhs. 2a-e) designating that Union, in
the same words as quoted above for the salesmen, to rep-
resent them for collective bargaining. Porterfield then
suggested they sleep on it anyway and if they had not
changed their minds by the following morning, to nod
affirmatively to him when he then came in to visit Re-
spondent to request recognition and collective bargain-
ing. When Porterfield accordingly visited Respondent
the next morning (April 26), the clerical employees6
nodded to him affirmatively as prearranged.
3 I.e, Baffa. Gowran. Hawkins. Hootselle. Metz. and Van Ronzelen
4 The foregoing (slpra., fn 3), plus Terry Hildebrand (Respondent
President Roland Hildebrand's son). Robert Michael Fitzgerald (Respon-
dent New Car Manager James Fitzgerald's son), Larry Stovesalnd (Re-
spondent Assistant New Car Manager), and Ed Mercer (a "part-timer"
who seemingly as paid some commission in connection with a car sale
in April but not, so far as appears. thereafter See Resp. Exh 4)
5 I.e., all but Mary Gant. who was orking late that day: viz. Dane,
Davis, Kassen. Lyles, and Smith
a Including Smith, who, testifying as Respondent's witness, concedes
she also nodded affirmaivel) to him that morning to indicate her conlin-
Representatives of both Teamsters Locals (604 and
618) visited Respondent's premises together on April 26
and, upon the basis of the employees' signed union au-
thorization cards, 7 requested recognition from Respon-
dent's head official and principal, Roland Hildebrand.
Hildebrand answered that he would "have to think about
it." 8 Later in the day, Hildebrand indicated that he was
declining to recognize the Unions, was being advised by
counsel, and wished to go to an election. Accordingly,
on the next day (April 27), Local 618 Representative
Porterfield likewise filed with the Regional Office the
representational credential cards his Union held from Re-
spondent's clerical employees, together with a petition
for a statutory election and certification.
At noon on Saturday, April 28, Respondent's new car
salesman Bob Hawkins was called into Roland Hilde-
brand's office by General Sales Manager James Fitzger-
ald (third in line of authority in the Company, over him
being only owner Roland Hildebrand and the corporate
official and office manager, Lorraine Schramke), who sat
down in Hildebrand's chair and berated Hawkins:
Hawk, you of all people, I didn't think you'd do
this to me. . . . [a]gree to join a union. . .. I expect
loyalty from [my] employees . . . I took a chance
on you, and I could have blown [you] out of [here]
any time I wanted to when [you were] having bad
months.
To this Hawkins responded that any decision he made
would be for the benefit of his family as well as his em-
ployer and should not be taken personally by Fitzgerald.
Hawkins, who had previously served with Fitzgerald on
the police force, asked Fitzgerald what was different
from the time Fitzgerald and he had organized a police-
men's association. Fitzgerald merely replied, "It is differ-
ent" and something about looking at yourself in the
mirror, and called for salesman Van Ronzelen, whom he
likewise berated from Hildebrand's chair:
Van, you stabbed me in the back.... You know
very well that Mr. Hildebrand and I did not want a
union in this store.... Have [you] looked up the
definition of the word loyalty lately?
Fitzgerald added that he (Fitzgerald) could still "shave
my face in the morning"-i.e., face himself in the mirror
ued assent to union representation Smith. who has had a year of college.
read the card before signing it and clearly understood its meaning. signifi-
cation, and intended use. and at no time made any attempt to withdraw
or cancel her card. although apparently she would hase been happier to
keep it quiet because of her husband's opposition to unions generall)
I Local 618 Representative Porerfield exhibited the signed cards of
the clerical employees Local 604 Representative Greer did not display
the salesmen's cards because he had already filed them with the Regional
Office on April 23. as the Regional Office's date stamp shows. together
with a petition for certification based upon an election under the Act
The clerical employees' cards were similarly filed with the Regional
Office on April 27
s It is undisputed that the two Unions requested recognition on April
26 Although Hildebrand did not estify. Respondent's corporate official
and office manager. Lorraine Schramke., as ell as its sales manager.
James Fitzgerald. acknowledged the meeting and recognitional demands
took place Local 604 had previousl). on April 23 also requested recog-
nition to bargain on behalf of the salesnmen, but had like" ise been told by
Hildebrand that he "sould think about it and let [you] know"
SUBURBAN FORD, INC. 367
(the same as he had indicated to Hawkins). Van Ronze-
len answered that he had done nothing to be ashamed of
and that as one of the six organizers of the St. Louis
police force Fitzgerald would have done the same thing.
To Van Ronzelen, as to Hawkins, Fitzgerald, who ac-
cording to his own testimony had been a St. Louis police
officer for 10 years (1959-69) during which he organized
and was the founding president of the St. Louis Police
Association and thereafter was a member of Local 604
for 4 years (1969-73) including his time at another car
dealership as assistant manager, replied that "There's a
big difference." Van Ronzelen told Fitzgerald the sales-
men had left Fitzgerald out of it "for your own protec-
tion." Fitzgerald chided Van Ronzelen because he did
not "come to me first." The meeting ended with a hand-
shake between the two.9
The foregoing is the sworn account of Hawkins and
Van Ronzelen. Fitzgerald's version is not essentially dif-
ferent. According to Fitzgerald he told Hawkins and
Van Ronzelen "almost word for word" the same thing:
I [am] thoroughly disappointed in the way that you
have gone around me with whatever problems you
think you have . ... If you have problems I [feel]
that you should at least have come to me before
going whatever route you are taking .... We at
Suburban Ford and myself [do] not want the union
. . . because Suburban Ford [can] not afford a
union at the time.
Upon the basis of the foregoing testimony, and credit-
ing Hawkins and Van Ronzelen, I find the allegations of
paragraphs 5A, B, and C of the complaint established.
The regular weekly meeting of Respondent's manage-
ment with its salesmen at the beginning of the workday
on Monday morning, April 30, was opened by Sales
Manager James Fitzgerald's brusque and unprecedented
announcement to the salesmen, as he uncharacteristically
paced back and forth redfaced behind the finance office
door, which was closed on this occasion, that (as re-
counted by salesman Thomas Hootselle):
I want all of the keys to your demos [i.e., salesmen's
demonstrator vehicles] before you leave the meet-
ing. Just place them on the desk . . . [You will] be
furnished with different demos before the day [is]
up.
Such a recall of salesmen's demonstrators was unprec-
edented. Continuing, Fitzgerald also announced that Re-
spondent's current bonus contest for salesmen, involving
as prizes paid trips to Las Vegas and another resort for
sales of "LTD" model Fords, was canceled "for lack of
interest," notwithstanding the fact that in the expired 2
of the 4 weeks set for the contest salesmen had already
made such "LTD" sales vying for the prizes. ' °0 Curtly
9 Fitzgerald resigned from Respondent's employ on May 18
'o Although a new "LTD" sales "bonus" contest was shortly there-
after placed into effect, it was a cash bonus seemingly not approlimaing
the alue of the summarily and unprecedentedly canceled contest. nor
was any credit of any kind given to the salesmen for "[.TD)" sales l-
ready made by them under the summarils canceled contest, thus on both
counts resulting inr a loss, of economic hbenefits ( them I do lnol credit
addressing the salesmen for the first time by their last in-
stead of their first names, as he-also without prece-
dent-singled them out for blame for a downturn in ve-
hicle sales during April, asserting Respondent was "in
the red $43,000 . . . that month" (April) following a
good March. Finally, that same morning (Monday, April
30), six new persons showed up on the scene and were
introduced as additional salesmen-likewise without pre-
cedent in the history of the Company.
The salesmen's demonstrators-which, for practical
purposes prior to this time, they could select themselves,
as a lucrative, prized, and prestigious job benefit and
emolument-were thereupon taken from them and re-
placed with high gas-consuming trucks or other less de-
sirable vehicles.'2 Sales Manager James Fitzgerald con-
cedes he reassigned these "prestigious" demonstrator ve-
hicles to the newly hired additional salesmen brought in
on April 30.
Also on the heels of the April 30 meeting there oc-
curred a likewise unprecedented reshuffle of the sales-
men's jobs, transferring them from new to used car sales
or vice versa' 3 -as credibly described, two substantially
distinguishable jobs requiring distinct experience and job
skills, and thus prejudicial to their earning opportunities,
based on commissions. In view of the accumulated expe-
rience and expertise of the salesmen in the jobs they
held,. 4 their wholesale reshuffling and replacement or
augmentation by untrained novices with little or no
qualifications 5 could have had no rational purpose other
James Fitzgerald's explanations for the premature cancellation of the
original LTD bonus contest as stemming from any lack or diminution of
interest therein by the salesmen (his own son Robert estified to the con-
trary) or from any reason other than coercion and restraint upon the
salesmen because of their union organizing activities
"See "Respondent's economic' defense," sec 11II.B,. ifra
. Thus, salesman Hootselle's 1979 air-conditioned LTD andau. re-
tailing for $8,700 and never sold. was replaced with a 1979 unair-condi-
tioned 5.(X)O Fairmont Futura and later with an unair-conditloned Gren-
ada Van Ronzelens 58500 air-condilioned luxury Thunderbird (never
sold) was replaced with all unair-conditioned $5.000 Pinto Merz' S6.750
air-conditioned Grenada Guia was replaced with an unair-conditioned 6
mpg 3/4-ton pickup truck which. because of the 44.6-mile round-trip dis-
tance to his home. he has not used in iew of the high added cost of the
gasoline it would require Has kins' $7200 air-conditioned 14 mpg I.TD-
2 was also replaced with an unair-conditioned (subsequently air-condi-
ionled) 8 mpg 3/4-ton pickup truck (Seemingly at no prior time had a
salesman. other than at his own request, been assigned a pickup truck as
his "demonstrator" ehicle ) However. the vehicle of Hildebrand's son
Terry (a salesman) was not replaced: and Fitzgerald's son's demonstrator
was replaced with an equivalent ehicle ith a bed. which he requested
The L.TD vehicle taken from Fitzgerald's assistant. Nes Car Manager
Stovesand. was apparenll, restored iio him ssithin a few das
.a Thus, used car salesman Hoolselle. after 4 years of employment in-
cluding recently almost half of a year as temporary used car manager.
was summarily ransferred to new cars. as Were also salesmen Baffa and
Gow ran, whereas new car salesmen Hawkins (in Respondent', emnplo as
new car salesmen since November 1978) and Merz (in Respondent's
employ for 6 years as a ntew car salesman) were sw itched to used cars
Such a wholesale sitch-around was unprecedented Salesmen Hootselle
and Hawkins lestified credibly that their incomes suffered because of the
obh switches It is noted that the job of Sales Manager James Fit7gerald's
son, car salesman Robhert. remained Ilnchanged
" Indeed. one sluch transferee, ess car salesman Hasvkits. had recent-
I) been detailed hby Respondent to a formal course of inltruIctlil I neite
car sales techniques i1 ResplndeCnt', behesl and c\perisc Rsponlldenl's
sales rtlager. J;lmt.s I igerald. .a Ihc hearing hnilf characterized the
esxliliig sale, frce a, "the best-
i' See fit 17. it/r
SUBURBAN FORD, NC.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights under the Act and in their job security and to
reduce their income, so as to induce them to cease exer-
cising those rights, and I so find.
While the suggestion is advanced that Respondent's di-
minished business in April itself necessitated the substan-
tial augmentation of its sales staff on April 30 in order to
increase sales, it is to be noted that no such augmentation
had occurred in or after poor business months in the
past; Respondent's Sales Manager James Fitzgerald him-
self at the hearing characterized the quality of the mem-
bers of its existing sales staff as no less than "the best";
the job qualifications of some of the sudden and unprec-
edented additions' 6 to its sales staff are far less than im-
pressive;' 7 and there is no showing that their advent re-
sulted in sales which could not readily have been han-
dled by the existing sales staff. Viewed in this light, their
addition to the sales staff, under the circumstances
shown, could have been for no purpose other than to
dissipate and destroy the majority representational status
of Local 604 as its salesmen's designated collective-bar-
gaining representative and to abort the outcome of a fair
election under the Act, 1 8 and to have no result other
than to diminish the commission earnings of its existing
salesmen as well as to coercively retaliate against and in-
timidate them in their jobs because of their attempts to
exercise their right under the Act to bargain collectively,
and I so find.
At the same time as Respondent thus substantially aug-
mented its sales force after the salesmen attempted to
bargain collectively through Local 604, Respondent like-
wise substantially augmented its clerical force on the
heels of the clerical employees' simultaneous attempt to
bargain collectively through Local 618-in the latter in-
stance adding also no less than four alleged new cleri-
cals, x9 all "part time," also (as in the case of the sales-
'" All. according to Respondent's sales manager, James Fitzgerald, un-
adxerlised and recruited through "emergency basis" personal contacts ,of
management
]i Thus. Corrigan was a former bank guard, and Gorda and Whanger
similarly ssere ithout car sales experience while Daniel Fitzgerald
swith some experience-was another son of Sales Manager James Fitzger-
ald None of the six added salesmen had worked for Respondent before.
and of the six only one Pfuehl hired in mid-May) was still working
there at the time of the instant hearing, the other five having left or been
discharged for "low production" with to replacements in July
', In this connection, it is noted that. according to credited testimolyr
of salesman Hootselle. on July 10--during the very pendency of the in-
stant hearing he oerheard current New Car MNanager Terry Hilde-
brand (owner Roland Hildebrand's son and James Fitzgerald's successor)
inform and question a new candidate for employment that "we [are]
having Iaub r problems we are in the midst (of a unioin problem
Some of the employees are joining or trying to organize to join a nion
What's your feelings ion this?" Early the same afternoon Hootselle also
heard Responident's principal Rland Hildebrand himself tell another job
candidate substantially the same thing Without explanation neither of the
Hildebrands testified. thus leaving this testimonyr of Htooselle unilcointra-
dicted 'The foregoinig is fairly construable within the conlltext of Respol-
dent's admitted as testified to by Respoldenm's ow i, witnesses James and
Robert Fitzgerald, as well as the Genelral Counsel's w ilnesses -opposiion
to unionization arid collective bargaining by its employees
Il e Gratia (Respondenl Office Manager Schramke's niece through
marriage}. Sims (Respondenl's sers ice manager's i fe). Brandi
(Schranimke's niece). aid Gillil (recoimmended by Brandt) ()Of these i onl
Graiza and Sinms wcre still in Rspondenlt's mploy at the titie f he in-
stant hearitng
Respindeint's salcsilaln Mel, testified credibl that aroulnd tli ,l a
Saturday il mid-NIa, i the pcsnce f Assistant Sales Mlanlager Sto c
-
force augmentation) without precedent and in the face of
alleged business shortfalls. There is also impressive testi-
mony 20 that following their collective-bargaining re-
quest, the former friendly and relaxed atmosphere in the
clerical offices on the part of management underwent a
swift and unprecedented transformation to hostility,
harshness, and rigidity.
Under the circumstances shown, it is impossible to
view Respondent's sudden, substantial, unprecedented,
and unsatisfactorily explained augmentation of its clerical
force, on the heels of the request by Local 618 to bar-
gain collectively on their behalf, in any other light than
Respondent's precisely parallel action in augmenting its
salesforce on the heels of the simultaneous request by
Local 604 to bargain collectively on their behalf-
namely, to interfere with, restrain, and coerce the cleri-
cals, as well as the salesmen, in the exercise of their Sec-
tion 7 rights under the Act, to dissipate and destroy the
majority status of their designated Union, and to abort
and prevent that fair Board election mandated by the
Act, and I so find.
The foregoing substantial expansions of sales as well as
clerical forces on the heels of those employees' rejected
conjoined collective-bargaining requests and pending the
fair statutory elections which Respondent demanded,
may be regarded as particularly strange in view of Re-
spondent's defense here of "economic" problems result-
ing from declining sales and income. That defense will
now be addressed.
Respondent's "economic" defense
Respondent seeks to account for its actions of April
30, on the heels of its refusal of the two Unions' requests
to bargain collectively, by claiming that those actions
were necessitated by poor business in April.
It seems fair to assess Respondent's actions and its mo-
tives in the context of its plain opposition to collective
sand, Respondent's newly added part-time Saturday telephone clerk
Donna Gratza (Respondent's executive Lorraine Schramke's niece) re-
marked that although this is "the easiest job (I've e er had Aunt
Lorraine told [me] when this [organizational attempt] is over, [I] ill
quit " Later Stovesand commented. "I can't believe she said such an
idiot[ic] thing to you " Although Gralza disputes Merz' ersion. upon the
basis of my comparative testimonial demeanor observations I definitely
prefer aid credit Merz' testimony Without explanation. Stovesand as
no produced to dispute Merz testimony According to Gratza. Merer up-
braided her for doing something "morally rong" il coming in as an
added alleged employee to be invlolved in something that did not concern
her and to think about it if she had a conscience Although Gratza claims
she did not know what Mere was talking about. she acknoskiledges she
did not even ask him I do not credit her testimony that she wtas unas ~are
of what Merz sas alluding to, particularly i ie , of her later conces-
sioni that "I knew it was a problem wilh the un ioll
2c l e by Dane "It as like a bomb was dropped the tension
became unreal " Comlpany Executive and Office Manager Schramke
pointedly remarked that thenceforth "itl will be strictl) bhlusinss" and by
I.yles. as well as by Respondent's ovnal itiless Davis. xx ho testified that
the morning after the Union exhibited their cards and requested collec-
live bargaining Office Mana;ger Schralmke told her she sas no longer her
friend anid that she w"as very much hurt because the girls had signed the
union cards Upon demeanor observations, I discredit that portion of
Davls' testinimo-ll-highly equixocalte. unsatisfactory. tand pinly pre-
varicatie. i contirast to her ther testimnlly as obshered-Ihat some un-
mdenlified and allegedlN unlremembered person allegedls remarked or
"must hilac"' remarked to her that she 'xould he fired if she did not sign ai
unliton crd
SUBURBAN FORD, INC. 369
bargaining by its employees through unions. The account
of Respondent's salesmen's meeting on April 28 in owner
Hildebrand's office when Sales Manager James Fitzger-
ald-third in command at the Company, by his own
characterization-from Hildebrand's chair, that "locus of
final authority," 2 ' upbraided them for their "disloyalty"
in seeking to assert their legal rights to attempt to bar-
gain collectively, will be recalled. At the hearing, Sales
Manager James Fitzgerald conceded he chided these
men because they went to a union and did not "come to
me .. we at Suburban Ford and myself [do] not want
the union.... because Suburban Ford [can] not afford a
union at the time." Fitzgerald's son Robert, also testify-
ing as Respondent's witness, recounted that he-as one
of Respondent's salesmen-"very often" reminded the
other salesmen that his "father's wishes . . . [are] against
the union coming into Suburban," even though his father
had organized a union in the police department.
In assessing Respondent's "economic" defense it also
seems fair to keep in mind that at the instant hearing Re-
spondent's sales manager, James Fitzgerald, testifying as
its witness, himself rated its sales force as "the best."
Concerning the level of Respondent's business in the
first quarter of 1979, even Respondent appeared to have
no dissatisfactions, and there is no credible showing that
it expressed any, prior to the assertion by its employees
through their two Unions of their desire to bargain col-
lectively. Even according to Sales Manager James Fitz-
gerald, March was a "good" 22 month. According to his
son Robert, March was a "good" month, but April was
not because "there weren't as many people in there in
April as there was in March"-generally agreed to here
by all witnesses, but hardly necessarily ascribable to der-
elictions or shortcomings of the sales staff. On the con-
trary, the shortfall in anticipated or hoped-for April traf-
fic is explained by various witnesses as ascribable to a
combination of factors; viz, fewer customers needing or
wanting to purchase cars or trucks for one reason or an-
other, including the general economy, inflation, the gen-
erally depressed condition of the automobile sales indus-
try, gasoline shortages and escalating prices, and a local
road-flooding situation at and around Respondent's loca-
tion precluding or interfering with ready access to its
premises. Other factors included increased competitive-
ness in the industry. But the core fact is that these were
basically factors outside of the control of the salesmen.
As conceded by both Fitzgeralds, where fewer custom-
ers come in there are simply less sales. And, even aside
from the foregoing factors in April 1979, it has not been
shown that that April was substantially different from
previous Aprils-when Respondent took none of the ac-
tions it took here on April 30, 4 days after the visit by
the Unions to seek collective bargaining. .411 of the ac-
tions taken by Respondent on April 30 were unique and
unprecedented in the Company's history. The only thing
that was different was its employees' assertion, through
their Unions, immediately preceding April 30, of their
desire to bargain collectively.
2 Ge,r/l Sho (orporatio,, . 7 Nt RB 124. 127 (1948)
: He later added, "hut not grcl "
Finally, Respondent has submitted some April business
"figures" (Resp. Exh. 2) which require comment. At the
outset it should be noted that, as conceded by their origi-
nator and sponsor, Respondent's executive and office
manager, Lorraine Schramke, they pivot around her pro-
jections. predictions, and expectations of the number of
cars she hoped would be sold that month (April), so that
any lesser number actually sold would thus, by that hor-
oscopic "bookkeeping" mystique, be considered a "loss"
although it was clearly and concededly not a real or
actual loss since the assets (i.e., the cars) were still either
on hand or available to be ordered. This explanation, of
course, at once skews the "figures" (Resp. Exh. 2) pre-
sented. It is further to be noted that the figures submitted
(Resp. Exh. 2) are dated April 26 and do not reflect
April 26-30, for which no figures were produced, leav-
ing no month-end figures adduced even for April; that,
as explained by Schramke, except for the last (extreme
right) column, because of the style of computerization
utilized, all minuses mean pluses; that the columnhead
coding "MTD" means month to date, "FRC" means
forecast (i.e., an artificial prediction), and "VAR" means
variance between "MTD" and "FRC" or, in turn, a to-
tally artificial figure delineating only the difference be-
tween actual operations and predicted or hoped-for oper-
ational levels aspired to be reached--and not any "loss."
Furthermore, as is well known, a "poor" April may
obviously be offset or more than compensated for by a
"good" (as here conceded) March and/or other months;
the contrary has not here been shown.
Moreover, of course, lacking interface or other figures
(for other months and years, annual reports and profit-
and-loss statements, certified accountants' reports, etc.)
for comparison purposes, and lacking any data to allow
construction or derivation of a comparative ratio of per-
sonnel manpower levels or man-hours to business or
income levels-data which are presumably at hand and
readily available to Respondent, but which for its own
unexplained reasons it has chosen not to introduce 2 3 -no
rational comparisons, deductions, or inferences are feasi-
ble to support Respondent's alleged "economic" defense
here in any event.
Usually an "economic" (business decline) defense in
explanation of an adverse employee personnel action is
cast in terms of justification for employee discharge,
layoff, or reduction in force. Here, strangely, it is the
converse-Respondent asserts an "economic" (business
decline) defense in justification of its substantial increase
of its staff, coincidentally the only segments of its staff
(salesmen and clerical employees) asserting the right to
21 That failure to introduce axailable docuneintary e idence jlu tific an
inference thai it ,.ould not support or assist the colilmoln, of Ihe parll
·stho originated them. f S Drer & R G R R . 191 l S 4. 91 92
(1903): NL RB. \ IWallitA. 198 F2d 477, 483 3d Cir 1952) Schrarmke
coinceded during cross-cxaminlation that-in contradlcl ion to he sup-
posed "los,e'" for Apr-il based 1t1 shortfalls ill her alleged especlatlonl
(Rep Exh 2). a-tual profit-and-loss filiancia;l laternen , of the Conpailn
,hovued pn/itt for the nesx car deparlmnti of 51()0.644 anld lr tite usoe
car deparinlentit of 514,319 for April (ith an allegecd oserall los, of on1
Sh447 (illcludlig corporale salrle,, depleciali.llI ec ) i shl.irp COIItr.i-
ditincllt n to the $4 154 lo,." bit reall\ onil sIhorilfall alleged pro-
lelced epetliltorn. shos, oni Re',p Ft 2. f S hicl 1.O1ttlleC dl it a\
clent 2 11 (Re.p Esh 21 ;sa a,crihed to the part departnitilt ilth
\k h lch l t E s.lea t n ha, c nIollulg I, doi
SUBURBAN FORD, INC. q
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with it collectively. Such a turnabout, to justify
substantial staff increases in terms of an alleged business
decline, following swiftly on the heels of requests to bar-
gain collectively, taxes credulity. In fact, it has not been
credibly made out here by Respondent. A far more
likely, and indeed the inescapable, explanation for Re-
spondent's April 30 (and preceding and ensuing) actions
here was that it was attempting, through a sort of em-
ployer "featherbedding," to "pack" the bargaining units
so as to dilute, emasculate, and destroy the Union's ma-
jorities in the two appropriate bargaining units, 2 4 and
obfuscate and abort the fair election processes which are
a cornerstone of the Act and its policies and protections;
and upon the described evidence and the record as a
whole I so find. Among other things, this action consti-
tuted-as indicated above-an adverse economic change
in the terms and conditions of the employment of the
salesmen, whose earnings consisted of commissions on
automobile sales, suddenly to be shared with the "new
salesmen" added by Respondent to the salesforce for the
sole purpose of checkmating and nullifying its legitimate
salesmen's statutory rights to bargain collectively. It
need not be emphasized that such an uncalled for sharing
of their source of income with a substantially enlarged
group of such sharers would be calculated to severely
dampen their ardor for continuing their ties to their
Union, and thus to intolerably affreight their exercise of
their congressionally declared rights under the Act. It is
also apparent that an employer who, when presented
with a request by his employees' duly designated union
representatives to bargain collectively, while raising no
questions, insists upon an election and thereupon prompt-
ly uses the unavoidable administrative time interval
before the election to embark upon a program of unfair
labor practices and to "pack" the bargaining units with
new "employees" as "extra voters" whom he endeavors
to assure are unsympathetic to unions, thereby interferes
with, restrains, and coerces his legitimate regular em-
ployees in the exercise of their rights under the Act,
since those employees will necessarily be made to feel
that their federally guaranteed right to bargain collec-
tively is a snare and a delusion, readily defeasible by
their employer through the simple expedient of callously
"packing" their bargaining unit for the election vote.
Furthermore, such action by the employer is a crass in-
terference with and an attempted abortion of the fair
election processes which the Act is purposed to insure
and which the Board is mandated to supervise. It is no
answer to this to say what an employer may do through
a speech campaign against a union, since his right to do
so is protected constitutionally as well as expressly by
Section 8(c) of the Act, whereas there is no such protec-
tion to the employer's actions here. Nor is it necessary to
complete the abortion by dismissing the instant proceed-
ing (in this aspect) and relegating the statutorily protect-
4 1 e, (1) all of Respondent's salesmen, excluding all office clerical,.
guards, professionals, and supervisors as defined in the Act salemnell's
unit), and (2) all office clerical eniplo>ees a Respondenlt's Imperial, Mlis-
sourn. facility. excluding all salesmen, professional employees guards and
supervisors as defined in the Act (clerical ulit) Each ",as and is ;i con
%entional and clearly appropriale bargaiiling unit and I so find No e,i-
dence or suggestion has been adduced to the contrary
ed employees and their unions to an election with its pre-
dictably accompanying roundelay of challenges, objec-
tions, "R" (representation) case hearings, reports, replica-
tive renewed charges, "C" (unfair labor practices) case
hearings, and bargaining orders-with interstitial reviews
and appeals-when, under the circumstances here, the
entire issue may be determined at this time-as, indeed,
Gissel contemplates and sanctions.
Consonant with the foregoing, it is found that the alle-
gations of paragraphs 6A, B, and C, 7, 8, 9, 10A, B, and
C, 11, 12, 13, 14, 15, 16A and B, 17, and 18 of the com-
plaint have been established by substantial credible evi-
dence upon the record as a whole.
2. May
The described developments of April 30 were succeed-
ed by additional coercive and restraintful episodes there-
after.
On Wednesday evening, May 2 or 9, Respondent's
salesmen Van Ronzelen and Hawkins were together in a
tavern, when General Sales and New Car Manager
James Fitzgerald and then Used Car Sales Manager
Jerry Gilliam (Fitzgerald's subordinate) came in. After
Hawkins left and while Fitzgerald was in the bathroom,
Gilliam approached Van Ronzelen and said to him, "If
you'll forget all this union nonsense, I'll make it very
well worth your while.... What do you want?" The
following morning, at Respondent's place of business,
Van Ronzelen asked Gilliam what he had in mind and
again Gilliam there asked him, "What do you want?" Al-
though Gilliam told him "We'll talk about it later," he
never did, nor did Van Ronzelen bring it up. Van Ron-
zelen's testimony to the foregoing effect is uncontradict-
ed, since without explanation Gilliam was not produced
to testify, and it is credited. It is accordingly found that
paragraphs 5D, E, and F of the complaint-promises of
economic benefits and solicitation of complaints and
grievances, for abandonment of union support-are es-
tablished.
Within the context of the preceding weeks' events as
already described, on May 4 Sales Manager Gilliam lev-
eled at Merz-the actual and so-regarded by Robert
Fitzgerald (Respondent's witness) spearhead of the sales-
men's unionization activity-the admonition, "I wish
we'd cut out the bull-t and get on to selling cars." To
this, General Sales Manager Fitzgerald added, looking at
Hawkins and Van Ronzelen nearby, "They're done and
they know it." Gilliam was not produced to dispute the
foregoing and Fitzgerald claimed he was unable to recall
the incident, while denying that he ever told Merz that
Hawkins and Van Ronzelen were "through"-which is
not precisely what Merz testified to. Thus, in effect
Merz' described testimony remains essentially unchal-
lenged.
Paragraphs 5G and H of the complaint allege that in
early May Sales Manager Gilliam promised an employee
benefits for abandoning his union support and threatened
discharge of union supporters. As to this, salesman Haw-
kins testified credibly that around this time he was called
into the office by Sales Manager Gilliam, who behind
closed doors told him, "Sit down. I want to talk to you
as a friend.... What would it take for [you] to change
SUBURBAN FORD, INC. 371
[your] mind about the union?" To Hawkins' answer indi-
cating that his mind would not be changed since he was
interested in economic security, Gilliam replied that he
believed "the other salesmen [are] using [you] and
making a fool out of [you], and that when this was all
over I was going to be the only one left who would
have a job." At this, Hawkins told Gilliam "if there was
any more said I would like somebody present" and got
up and left. Since, without explanation, Gilliam was not
called to testify, Hawkins' account stands uncontradicted
and I credit it. Accordingly, I find the allegations of
paragraphs 5G and H established.
Further, according to the complaint (pars. 51 and J),
on or about May 18 Sales Manager Gilliam by soliciting
complaints and grievances promised an employee bene-
fits for abandoning his union support and at the same
time indicated it would be futile for employees to select
a union as their bargaining representative. Concerning
this, Hawkins swore that on the date in question Gilliam
again asked him, "what would [it] take for [you] to
change [your] mind about the union . ... I can make it
worth your while." Hawkins told Gilliam that "apparent-
ly you don't know me too well . . . When I make up
my mind to do something, I usually carry it through, and
I couldn't be bought [in] 18-1/2 years on the police de-
partment, and I can't be bought now." To this, Gilliam
responded that "it won't do any good to bring a union in
there" and asked Hawkins to "think about our conversa-
tion." As already indicated a number of times, without
explanation Gilliam was not called to testify. Thus, Haw-
kins' account again remains uncontradicted and, crediting
it, I find paragraphs 51 and J established.
The complaint (pars. 5K and L) also alleges that in
late May, at two different restaurant locations, Sales
Manager Gilliam gave employees 5-year job-security as-
surances if they abandoned their union support. Regard-
ing this, salesman Hawkins testified that on the indicated
occasion he was greeted in nearby Schobers Restaurant
(complaint, par. 5K) by Gilliam, to whom he remarked
that he (Hawkins) "hope we can still remain friends . . .
after this is all over." Gilliam then asked Hawkins,
"What do you want?" Hawkins answered, "Well, I went
into this here for the benefits of the contract, the paid
medical, for the pension, and the dental." Gilliam re-
plied, "I can give you that" and proceeded to write out
on a paper napkin that "Bob Hawkins will work for Sub-
urban Ford for 5 years provided he sells 10 cars a month
average. /s/ J. Gilliam." Hawkins asked Gilliam if he
was "sure [you] want[ed] me to keep the napkin," and
Gilliam replied, "Yes." At the same time, Gilliam told
Hawkins to "think about it over the weekend" and wrote
his (Gilliams') telephone number on another napkin for
Hawkins. Hawkins retained both napkins, which are in
Gilliam's handwriting, in his possession, and both were
introduced in evidence (G.C. Exhs. 5b and a) at the
hearing. A few days after the described episode, Gilliam
called Hawkins into his office and asked him what he
had done with the napkin Hawkins said he had "flushed
it down the toilet." Gilliam then remarked, "You know,
we were both drinking," and Hawkins answered, "Yes,
sir. " 2 5 In view of Respondent's unexplained failure to
produce Gilliam to contradict Hawkins in any way, in-
cluding as to any claimed insobriety on the occasion in
question (stoutly and credibly denied by Hawkins), and
based upon my demeanor observations of Hawkins as he
testified, I credit Hawkins' account of the episode 26 and
accordingly find paragraph 5K of the complaint estab-
lished. In conjunction with this episode, it is appropriate
to consider what appears to be a related incident, alleged
in paragraph 6D of the complaint. A few days after the
described Schobers Restaurant episode involving the
napkins, after Hawkins had apparently satisfactorily reas-
sured Gilliam that he had "flushed it down the toilet,"
Gilliam, waving some keys at Hawkins, replaced the
"demonstrator" 3/4-ton pickup truck assigned to Haw-
kins on April 30 by General Sales Manager James Fitz-
gerald with an air-conditioned $5,400 Ranchero, with the
remark, "Are you satisfied now?" 2 7 As with all other in-
cidents involving Gilliam, this one, also, is wholly un-
contradicted, since Gilliam was not produced to testify.
Under the total circumstances here, I cannot regard the
described action by Gilliam, particularly in the context
of the Schobers Restaurant episode, other than the exten-
sion of a carrot to Hawkins after Respondent had taken
the stick to him-the one no less than the other a tech-
nique of restraint and coercion purposed to weaken his
resolve and wean him from his pursuit of his right to as-
sociate himself for collective bargaining under the Act.
It is accordingly found that this paragraph (6D) of the
complaint is likewise established as, taken in conjunction
with the record as a whole and related complaint para-
graphs (19 and 20), violations of the Act.
With regard to the remaining alleged incident of late
May (complaint par. 5L), this is said to have involved
another 5-year job-security assurance by Sales Manager
Gilliam, to employees generally, made in a different res-
taurant (Frank's Tavern). Respondent's salesman Merz
testified to such an assurance by Gilliam-this one taking
the form of an oral "guarantee that [you] would have
some kind of contract for five years" if Respondent's
Service Manager Sims, who was present could "talk" to
Respondent's principal, Roland Hildebrand, and have
"this thing . . . settled without all this going on . . . and
we could probably work it out." Neither Gilliam nor
Sims was produced to controvert in any way this testi-
12 At the hearing, Hawskins sore. 'ithoul conlradlclion since Gilliam
did not testify) that they had had no more than four beers and wsere %sell
in conItril of their faculties Crediting Ha'skins' testimon I can only
conclude that Gilliam's remark about "drinking," a fe', da>s later, xas
intended as a nonfactual alibi to cover up what Gilliam had later per-
ceised or been told as his indiscretion in conmilting such all asurance
to Hawkins to ".ritng and then leaving It In Ha\ kins' hand,
26 I do not redit the testlimont of Respondent', itless Chastaill co -
cerning this episode to the extent that he mil be a.temptilg to place a
different cast on the talk b claiming he as %sell as Gilliam told Hlas kins
it as "unfair" for Hasvkins to be talkiig about the sublect HFoescxer.
acciordling to Chlasta.i. he (Chastain) left the resta.uranl short. lea igl
las kis there alone xsith Gilliam, so that ChastLu ould not hase been
a parimcpalnt ti a CrlSllulg cZ orlnersallon btlcen (illirll aid Hia, kii,s
That the ensuig colversatlion slas as tstficd h Hkikl is inot oillx
s.'holl 5 midispuitd h Gilliam but is horne ouLt hb Ciil h anm C ulnlmdsputd
kn ritltigs oi the na;pkil (Ci C Exhs 5bh arid a) rt e\ dence
': It Is ohered Ihat also in late t, . shtrll\ aficr General Sales
Malilager Jries -lt/geril Ad left Resprondetitts eriplo ri Mn' I1. Has kilrs
a1s, hl'tied h.,k hl hs d Is ib as ns car ,s.in.ll
SUBURBAN FORD. NC. 71
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Merz, which I credit. Accordingly, I find para-
graph 5L also established.
3. June
Finally, on June 6 Respondent's salesman Hawkins
was discharged, under circumstances to be described,
only to be reinstated 2 days later after he filed an unfair
labor practice charge with the Board's Regional Direc-
tor. It is claimed that this discharge constituted in effect
yet another harassing tactic for the purpose of chilling
the employees' organizational ardor and subverting their
unionizational adherence and activities (complaint pars.
6E, F, G, and H).
The facts are as follows. On the day in question (June
6), Pamela Moran, a customer of Assistant Sales Man-
ager Stovesand, needed a car since her own was delayed
in repair. Stovesand told Hawkins to lend her salesman
Merz' demonstrator since Merz was not there and it was
not in use. Hawkins accordingly did so. Lending a dem-
onstrator to a customer under such circumstances was a
usual practice. Hawkins later informed Merz of this after
he came in, and Merz indicated it made no difference to
him since he was not driving that newly assigned demon-
strator (a small truck) anyway. Later, Merz asked Sales
Manager Gilliam for a car to drive home. When Respon-
dent's owner, Roland Hildebrand, saw him in this car, he
asked Merz why he was using it. When Merz explained
why, Hildebrand spoke to Gilliam, who in turn asked
Merz who had loaned his demonstrator out. Merz re-
minded Gilliam that Hawkins had loaned it out at the di-
rection of Assistant Sales Manager Stovesand. Notwith-
standing this, Gilliam paged Hawkins loudly and repeat-
edly on the loudspeaker. Although Merz told Gilliam
that Hawkins was on the telephone, Gilliam responded,
"I don't give a f-k where he's at." When Hawkins came
in, in response to Gilliam's question he informed him that
he had merely done what Assistant Manager Stovesand
told him to do. Gilliam nevertheless faulted Hawkins
anyway and that "If you say one more f-king word,
you're fired." When Hawkins explained that "1 was just
trying to explain what happened," Gilliam exploded at
him, "You're fired. Give me the keys to your f-king
demo." Merz, who had been an onlooker, remarked to
owner Roland Hildebrand, "This is the biggest bunch of
bulls-t I've ever heard."
Since unexplainedly neither Gilliam nor Hildebrand
testified, the foregoing account of Hawkins and Merz is
uncontradicted and credited. Two days later, on June 8
Hawkins filed a charge against Respondent with the
Board's Regional Director and later that day served a
copy of it on Gilliam. Shortly thereafter he received a
call to Hildebrand's office, where he was told that Re-
spondent wanted him back since he was a good sales-
man. Hawkins said that he already had an appointment
set up for a job interview elsewhere, but could return the
following day (June 9), which he did. 28
a, Although Respondcnl claims tawkins lost io b.ackpa., thll, I riol
an issue , hich i as encornpassed hb or litigaled ill the il litallt ip)ltedilg
Vilhihou allnemping to prejudge that issue Rcspionldcilt assrtriioi here
Ihat Ha, kins' drawing accoult agails coinmissions lln as n ia lli t'c cii de
not appear to meet the I coullerassertili1 of the ohi u- l Iiutll lt h it
being Ihere for several days, Nhile he ,a s in discharge taltis. I lai,is
I have difficulty in believing that, except for his
known union organizational activity and his persistence
in refusing to abandon his union affiliation-viewed by
Respondent as his "disloyalty"-a salesman such as
Hawkins, with an exceptional performance record and
even sponsored by Respondent for attendance at ad-
vanced training, an experienced salesman difficult to find
or replace, and in a context of Respondent's unprec-
edented augmentation of its sales staff with green
"fillers" not having union affiliation, would be summarily
discharged in a situation in which he was unquestionably
without fault of any kind; and I believe the only reason
he was reinstated was his filing with the Regional Direc-
tor of unfair labor practice charges against Respondent.
Within the context of the record as a whole, I am per-
suaded and find that Respondent's discharge of Hawkins
constituted yet further harassment of Hawkins and other
employees, purposed, as alleged in the complaint, to
bring the organizing employees to heel, so as to cool
their union ardor, to cause them to abandon their union
affiliation, and to dissuade them from pressing their con-
tinued attempt to exercise their rights under the Act. It is
accordingly found that paragraphs 6E, F, G, and H are
established by substantial credible evidence on the record
as a whole.
C. Summary and Discussion
In brief summary, there is presented here a situation
where an Employer, faced by collective-bargaining re-
quests from two unions representing different groups and
bargaining units of his employees, refuses those requests
and insists on elections under the Act. Instead of await-
ing those elections so that the question of representation
may thereby be fairly and honestly determined as con-
templated by the Act, in a context of announced hostile
intolerance to lawful collective bargaining as "disloyal"
the Employer not only engages in miscellaneous acts of
interference, restraint, and coercion in violation of the
Act, designed to detach the employees from their union
affiliation, dampen their desire for collective bargaining,
and cause them to abandon that pursuit-legal and guar-
anteed as it is to employees by the Act-but also, most
significantly, to derail and foul the upcoming statutory
elections under the Act by deliberately enlisting into
each of the units, without bona fide business need, suffi-
cient additional "fillers," lacking union affiliation, intend-
ed to be put forward as "voters" in the upcoming elec-
tions so as to counterbalance any votes to be cast by the
unionized majority of the employees seeking collective
bargaining and Board certification of their Unions on the
basis of a fair election. To say nothing of its coercive and
restraintful actions and employee harassments following
their request for collective bargaining, it is impossible
upon the record presented to regard Respondent's April
30 broadscale cancellation and withdrawal of benefits
and its job shifts as other than "a blatant example of Re-
spondent's raw economic power over the employees
which it wielded for antiunion purposes." Chandler
.iould I lhrdlI has il n sale ll s .i 1d eaIlled comll ollI , I I Cil Ihelher eh
w-1outld litc is p lt o deterillllitiii lere, hil for . hckpa proceedliig.
fi aiLs. lliosilIg the itluil preliniilar illxetigition
SUBURBAN FORD, INC. 373
Motors. Inc., 236 NLRB 1565, 1566 (1978). Viewed in
their totality, in every sense Respondent's actions here
bespeak what Mr. Justice Harlan, speaking for a unani-
mous Supreme Court in N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405, 409-410 (1964), characterized as the "fist
inside the velvet glove." On top of these clear violations
of basic prohibitions of the Act, Respondent further saw
fit to engage in the egregious tactic of deliberately "load-
ing" the bargaining units so as to insure the abortion of
any fair election, thereby setting itself up in direct oppo-
sition to the congressionally declared national policy as
set forth in the Act. "We can conceive of no more perni-
cious conduct than that which is calculated to undermine
the Union and dissipate its majority while refusing to
bargain." Teledyvne Dental Products Corp., 210 NLRB 434,
435-436 (1974). This indeed appears to be one of those
"rare" cases where there is "direct evidence of a purpose
to violate the statute." Hartsell Mli/ls Co v. N.L.R.B., 11
F.2d 291, 293 (4th Cir. 1940). Respondent's conduct here
constitutes serious statutory violation calling for effective
remedy. Cf. N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969); Chandler, supra.
Upon the foregoing findings and the entire record, I
state the following:
CONCtUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By engaging in the acts found to have constituted
interference, restraint, and coercion in and under the cir-
cumstances described and found in section III, supra, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them
under Section 7, and has thereby violated Section 8(a)(l)
of the Act.
3. By recalling and reassigning its salesmen's demon-
strator vehicles, by prematurely canceling its salesmen's
"LTD" bonus contest, by shifting and transferring its
salesmen to other jobs on and after April 30, 1979, and
by discharging its employee Bob Hawkins on June 6,
1979, under the circumstances described and found in
section III, supra, Respondent has discriminated in
regard to the hire, tenure, and terms and conditions of
employment of its employees to discourage membership
in a labor organization, in violation of Section 8(a)(3) of
the Act; and has, further, interfered with, restrained, and
coerced its employees in the exercise of the rights guar-
anteed them under Section 7, in violation of Section
8(a)(l) of the Act.
4. Respondent's augmentation of its salesforce and of
its clerical force on and after April 30, 1979, under the
circumstances described and found in section 11I, supra,
as well as its shifting and transferring of its salesmen to
other jobs on and after April 30, 1979, its discharge of its
employee Bob Hawkins, and its other unfair labor prac-
tices in violation of the Act have been with the purpose,
intent, and effect of coercing and discouraging its em-
ployees from continued lawful adherence to, membership
in, support of, and activities on behalf of the Unions
herein, as well as to prevent the Unions from becoming
and acting as their certified collective-bargaining repre-
sentatives, and so as to undermine said Unions' represen-
tative status and dissipate and destroy their majority
standing, and to render impossible or impracticable a free
and uncoerced electoral choice on their part in the statu-
tory election procedures under the Act.
5. Respondent's failures and refusals to recognize and
bargain collectively with the Unions herein as the duly
authorized bargaining representatives of its employees in
the appropriate bargaining units, at all times on and since
April 23, 1979 (Teamsters Local 604, on behalf of Re-
spondent's salesmen), and April 26, 1979 (Teamsters
Local 618 on behalf of Respondent's clerical employees),
under the circumstances described and found in section
III, supra, and with the purposes and effects set forth in
Conclusion of Law 4, supra, have constituted and consti-
tute continuing violations of Section 8(a)(5) and (1) of
the Act.
The appropriate collective-bargaining units are:
All salesmen employed by Suburban Ford, Inc.,
excluding all office clericals, guards, professionals
and supervisors as defined in the Act.
All office clerical employees at the Imperial, Mis-
souri, facility of Suburban Ford, Inc., excluding all
salesmen, professional employees, guards and super-
visors as defined in the Act.
6. The aforesaid unfair labor practices and each of
them have affected, affect, and, unless permanently re-
strained and enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
We come to the matter of remedying Respondent's
unfair labor practices.
With regard to the unfair labor practices consisting of
the 8(a)(l) violations found, the usual cease-and-desist
provisions in such circumstances are required. With
regard to the 8(a)(3) violations, not only is a cease-and-
desist order required, but also a make-whole order re-
quiring Respondent to make whole its salesmen for any
economic losses or job-related damages or diminutions
suffered by them because of the adverse personnel and
job actions taken against them, as described and found
herein, on and after April 30, 1979. These include back-
pay in the case of Bob Hawkins, from June 6 through 8,
1979; loss of income, if any, to all salesmen whose jobs
were shifted or changed on and after April 30, 1979, as
herein found; losses, if any, to all salesmen, as the result
of the withdrawal and change of their demonstrator ve-
hicles on and after April 30, 1979, as herein found, and
specifically including any added travel, fuel or other ex-
pense attributable thereto; losses to all salesmen by
reason of Respondent's premature withdrawal of its
"LTD" bonus contest on April 30, 1979; and deprivation
of income to its salesmen ascribable to Respondent's ad-
dition of new salesmen to its salesforce on and after
April 30, 1979, to dissipate the majority representative
status of Teamsters Local 604, under the circumstances
described and found in section III, supra. In addition,
Bob Hawkins should be required to be made whole for
any hospitalization, medical insurance, or similar benefit
coverage, expense, or claim he or any person derivative-
ly covered through him sustained by reason of any lapse,
SUBURBAN FORD, INC.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal, or noncoverage during the period (June 6--8,
1979) he was in discharged status. Hawkins should also
be restored to uninterrupted seniority on Respondent's
books and records, the same as if he had not been in dis-
charged status from June 6-8, 1979. All sums, benefits,
and emoluments, with interest thereon, should be calcu-
lated as explained in Isis Plumbing & Heating Co., 138
NLRB 716 (1962); F. W. Woolworth Company, 90 NLRB
289 (1950); and Florida Steel Corporation, 231 NLRB 651
(1977). Respondent should also be required to preserve
and make available to the Board's agents its books and
records for backpay computation and compliance deter-
mination purposes, and to post the usual notice to em-
ployees. In view of what I am compelled to regard as
Respondent's deliberate assault on basic policies of the
Act through the device of attempting to introduce addi-
tional unaffiliated voters into the bargaining units so as
to abort the free elections contemplated by the Act, I be-
lieve and find it is equitable and proper that there be in-
cluded in the recommended Order and notice a require-
ment that Respondent not violate the Act in any way,
since Respondent's described deliberate attempt to abort
the election process appears to me to strike at "the very
heart of the Act" (A. J. Krajewski Mfg. Co., 180 NLRB
1071 (1970)). Cf. .L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941).
There remains the question of whether, in the circum-
stances, a bargaining requirement should be imposed
under the principles enunciated by the Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
I think it clearly should.
In Gissel, a unanimous Supreme Court instructed that
an electionless bargaining order may properly issue
where an employer who has refused to recognize a union
as here holding majority bargaining authorizational cre-
dentials, in the interval while awaiting the statutory elec-
tion which he (the employer) has demanded, engages in
"pratices which . . . have the tendency to undermine
majority strength and impede the election processes"
(395 U.S. at 614), with the prospect of erasure of the ef-
fects of such actions and assurance of fair election slight,
so that "employee sentiment once expressed through
cards would, on balance, be better protected by a bar-
gaining order" (id. at 614-615). I find that, in the circum-
stances here, particularly Respondent's "packing" of the
two bargaining units in order to dispel the possibility of
Board certification of the Unions after statutory elec-
tions, "the possibility of erasing the effects of past prac-
tices and of ensuring a fair election . . . by the use of
traditional remedies . . . is slight and that employee sen-
timent once expressed through cards would, on balance,
be better protected by a bargaining order." Gissel at 614-
615.1n my view, it is plain that the actions of Respondent
here, who equates joining a union-an employee right
under the law of the land-with "disloyalty," and delib-
erately resorts to the device of loading the bargaining
units with unaffiliated and unneeded supernumeraries,
whom it continues on job interviews conducted during
this very hearing to assure itself are free from the taint of
union sympathy, not only amply merit but require impo-
sition of a Gissel bargaining order as within the very lan-
guage of that Supreme Court decision. Since each of the
Unions here, as explained and found supra, clearly com-
manded majorities in each of the bargaining units when
they made their bargaining request, a bargaining order
should be issued under the authority of the Gissel deci-
sion.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this consolidated
proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 29
The Respondent, Suburban Ford, Inc., Imperial, Mis-
souri, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Accusing any employee of disloyalty for joining a
union or for exercising any other right or engaging in
any lawful activity under the National Labor Relations
Act.
(b) Directly or indirectly threatening any employee
with discharge because of union affiliation or exercise of
any other right or for engaging in any lawful activity
under said Act.
(c) Soliciting complaints or grievances from any em-
ployee so as, in violation of the Act, to undermine her or
his union affiliation or exercise of any other right or
lawful activity under the Act.
(d) Promising or holding out to any employee eco-
nomic benefits to induce the abandonment of her or his
union support or any other right or lawful activity under
the Act.
(e) Threatening or informing any employee that it
would be futile for employees to select a union as their
bargaining representative.
(f) Promising or holding out to any employee a con-
tract, agreement, assured term of employment, or other
job security or advantageous term or condition of em-
ployment if the employee abandons her or his union af-
filiation or any other right or lawful activity under the
Act.
(g) Canceling, withdrawing, or altering, by decrease or
increase, any job-related economic benefit or other term
or condition of employment, including premature with-
drawal of any existing bonus or contest or competition,
changing assigned demonstrator vehicles, or shifting or
altering job assignments, to discourage any employee
from union affiliation or the exercise of any other right
or lawful activity under the Act.
(h) Discharging, suspending, laying off, furloughing,
or failing to reinstate or rehire, any employee because
she or he has joined a union or exercised any other right
or engaged in any lawful activity under the Act, or pro-
poses to do so, or fails or refuses to discontinue to do so;
or for the purpose of inducing, persuading, or causing
her or him or any other employee to relinquish her or
his union membership or to abandon or discontinue the
'5' In he exent no exceptions are filed as provided b Sec 102 46 of
the Rule, and Regulation, of the National Labor Relations Board, the
indiidgs. colIclusuions, and recommended Order vhich follork herein
shall. a provided in Sec 10248 of those Rule, and Regulation. he
adoptled by the Board and become it, findings, conclusions. and Order.
and all ohiectionl thereto hall he deemed waised for all purposes
SUBURBAN FORD, INC. 375
exercise of any other right or to refrain from any activity
lawful under the Act.
(i) Augmenting its force of employees in any proposed
collective-bargaining unit, subsequent to any bona fide
demand for union recognition and collective bargaining,
and while awaiting a statutory election under the Act,
for the deliberate purpose of deranging and dissipating
said unit, undermining the union's majority strength and
impeding the election processes under the Act,3 0 and
thereby preventing or aborting the exercise by employ-
ees of their right under the Act to bargain collectively.
j) Directly or indirectly engaging in any of the fore-
going actions or activities or any like or related act in
order to dissipate the collective-bargaining representa-
tional status of its employees' lawfully designated collec-
tive-bargaining representative, or for the purpose of
causing its employees to discontinue or refrain from ex-
ercising their right to bargain collectively with Respon-
dent, or otherwise so as to interfere with, restrain, or
coerce its employees in the exercise of the rights guaran-
teed under the Act.
(k) Failing or refusing to bargain collectively in good
faith with Automotive Transport Chauffeurs, Demonstra-
tors & Helpers, Local 604, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of its employees in an appropriate unit
consisting of all of its salesmen, excluding all office cleri-
cals, guards, professionals, and supervisors as defined in
the Act.
(1) Failing or refusing to bargain collectively in good
faith with Automotive, Petroleum and Allied Industries
Employees Union, Local 618, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bargain-
ing representative of its employees in an appropriate unit
consisting of all office clerical employees at its Imperial,
Missouri, facility, excluding all salesmen, professional
employees, guards and supervisors as defined in the Act.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization; to form, join, or assist any labor organi-
zation; to bargain collectively through representatives of
their own choosing; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid
or protection; or to refrain from any and all such activi-
ties, except to the extent that such right may be affected
by an agreement lawfully requiring membership in a
labor organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Make each salesman in its employ on April 30,
1979, whole for all pay, commissions, seniority, privi-
leges, benefits, and emoluments lost, and for all extra
costs and expenses sustained, by reason of Respondent's
actions on and after April 30, 1979, in (1) withdrawing
its "LTD" bonus contest prior to the previously desig-
nated expiration date thereof, (2) withdrawing from its
salesmen their demonstrator vehicles and substitution of
A 1 R, B s (,.l P,AmK C, l, . 395 S t 614 119h4 )
other vehicles therefor, (3) reassigning its salesmen to
other jobs, and (4) augmenting its salesforce with addi-
tional salesmen in order to dissipate and destroy the ma-
jority representational status of its salesmen's union; to-
gether with interest thereon, calculated in the manner set
forth in the remedy portion of the Decision of which this
Order forms a part.
(b) Additionally make whole its salesman Bob Haw-
kins for all pay, commissions, seniority, privileges, bene-
fits, and emoluments lost, and for all charges, costs, and
expenses sustained (including all hospitalization, medical,
and similar costs and expenses, if any, by reason of job-
related insurance coverages lost, lapsed, or withdrawn)
by reason of his discharge by Respondent from June 6
though June 8, 1979, together with interest, in the
manner set forth in the remedy portion of the Decision
of which this Order forms a part.
(c) Expunge from all of Respondent's books and re-
cords any entry of mention indicating or to the effect
that the termination of Bob Hawkins on June 6, 1979,
was because of any contravention or infraction of any of
Respondent's rules, requirements, or policies, or because
of any fault or work-related deficiency or shortcoming
on his part; and refrain from making any such report or
statement voluntarily or in response to any inquiry from
any employer, prospective employer, employment
agency, unemployment insurance office, or reference-
seeker or inquiry.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate and other records, work
schedules, production reports and data, social security
payment records, timecards, personnel records and re-
ports, and all other records and entries necessary to de-
termine the amounts of backpay and other sums and
benefits due under and the extent of compliance with the
terms of this Order.
(e) Upon request, recognize and bargain collectively in
good faith with Automotive Transport Chauffeurs. Dem-
onstrators & Helpers, Local 604, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as of April 23, 1979,3' as the
exclusive collective-bargaining representative of Respon-
dent's employees in the aforesaid salesmen's appropriate
collective-bargaining unit, with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment, and embody in a signed contract
any understanding reached.
(f) Upon request, recognize and bargain collectively in
good faith with Automotive, Petroleum and Allied In-
dustries Employees Union. Local 618, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as of April 26, 1979,32 as the
exclusive collective-bargaining representative of Respon-
dent's employees in the aforesaid appropriate clerical em-
:I Cf radmi, Pi ,r , . 219 N[ RH 208. 3( 3)l ( 1q'5): \ . RH B
Eagle .tlf /eal 1tau/lig. . 558 F 2d 160). 163. tI8 (3d Cir IQ"'') 4
L... Sportlyrr A ,,J X .\ 1. R B. 541 2d 73q. 744 (I( lh Cir I 4'h) The
b.lrglililig rcuc rd r cfd rila l. a wcll .a thc ,,rcpl)tolln the unfair lahol r
pratice, hcrc. ,ert .li in A piill Caf a, l 237 NI R '48. fl 7
(- ldi
" 1t1
SUBURBAN FORD. INC. 5
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees' collective-bargaining unit, with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment, and embody in a signed
contract any understanding reached.
(g) Post at its premises at South Highway 61-67, Im-
perial, Missouri, copies of the attached notice marked
"Appendix B." 33 Copies of said notice, on forms pro-
33 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
vided by the Regional Director for Region 14, after
being signed by Respondent's authorized representative,
shall be posted in said premises by Respondent immedi-
ately upon receipt thereof and maintained by it for 60
consecutive days thereafter, in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(h) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.