Civic Center Sports, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1973

206 N.L.R.B. 428 (N.L.R.B. 1973)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Civic Center Sports, Inc. and International Association
of Machinists and Aerospace Workers , District No.
63, AFL-CIO. Case 6-CA-6097
October 16, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 21, 1973, Administrative Law Judge Irving
M. Herman issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and a supporting 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, findings, 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Civic Center Sports, Inc.,
Pittsburgh, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' The Respondent also filed a motion to reopen the record, and the Gener-
al Counsel filed a memorandum in opposition to the motion. In its motion,
the Respondent alleges, in substance, that additional evidence would show
(1) on or about April 1, 1973, Louis Silverman sold 75 percent of the out-
standing shares of Respondent to Bernard Goldman, (2) on or about May
31, 1973, Marshall Hausrath resigned as general manager of Respondent,
and (3) of the nine employees who signed authorization cards, all have left
the employ of Respondent Without deciding whether Respondent's motion
was untimely filed, we conclude that the evidence sought to be adduced
would not change our decision herein. Accordingly, we deny the
Respondent's motion as lacking in merit.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This case
was tried before me on October 24-25 and November 1-3
and 20-21, 1972,' at Pittsburgh, Pennsylvania. The charge
was filed by International Association of Machinists and
i All dates are in 1972 except as otherwise stated.
Aerospace Workers, District No. 63, AFL-CIO (herein
called the Union), on May 23 and served upon Respondent
the same day; and the first amended charge was filed Au-
gust 28 and served upon Respondent August 30. The prima-
ry issues are whether Respondent violated Section 8(a)(1) of
the National Labor Relations Act, as amended (29 U.S.C.,
§ 151, et seq.), herein called the Act, by interrogating, threat-
ening, soliciting complaints from, and granting a wage in-
crease and other benefits to, its employees, and creating the
impression of surveillance among them; violated Section
8(a)(3) by discharging Thomas Foster; and violated Section
8(a)(5) by refusing to bargain with the Union (or whether
Respondent should be ordered to bargain with the Union
even absent an 8(a)(5) finding).
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, r make the
following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is engaged in the retail sale and service of mo-
torcycles and motorcycle parts at its Pittsburgh , Pennsylva-
nia, facilities ; that during the 12-month period immediately
preceding , Respondent's gross volume of business exceeded
$500,000 , and Respondent received goods and materials
directly from outside Pennsylvania valued in excess of
$50,000 ; 3 and the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1.. Organization of the employees
On April 10, Employees Foster and Enright visited the
union hall with a view to securing representation to improve
their working conditions. They met with Leonard Schloer,
an organizer, who told them that if they signed up a majority
of the employees he would talk to their employer.4 Schloer
2 On January 16, 1973, Respondent filed a motion to correct the transcript
of testimony herein in 28 respects. The transcript, however, contains many
more errors, including some identical with some of those covered by the
motion. Correction of all would be unduly burdensome and in some instan-
ces virtually impossible. At the same time, almost all of those capable of
correction, including most covered by the motion, do not need formal correc-
tion to disclose the true meaning of the relevant material.
3 The complaint inadvertently says $5,000, but see Marshall Hausrath's
affidavit (G.C. Exh. 6, p. 1).
4 Schloer had occupied that position for about 3 years during which period
he had organized some 20 automobile dealers, whose bargaining units cov-
206 NLRB No. 101
CIVIC CENTER SPORTS 429
gave them authorization cards for this purpose. The follow-
ing day Foster and Enright signed their cards in each other's
presence, and Foster obtained the signatures of seven addi-
tional employees. That evening Foster took the nine signed
cards to Schloer at the latter's office and Schloer said he
would visit Respondent's place of business the next day.
2. Respondent's initial reaction
As Respondent's manager, Marshall Hausrath,s testified,
the organizing was "common knowledge." 6 Enright testi-
fied that he and Foster "didn't hide" their union activity
"from anyone." When Enright arrived at work on the morn-
ing of April 12, Marshall called him over and asked, "What
is this I hear about Foster starting a union?" After some
hesitation, Enright replied that some of the employees had
decided a union would be good for them. Foster walked in
at just about that time, and Marshall put the same question
to Foster directly. Foster confirmed his role and added that
union representatives would be coming over to discuss the
matter that afternoon.7
Marshall thereupon admittedly,
gathered the employees together and explained to them
the problems that would arise if a union came into the
shop. I told them that the increased costs that would
come about with an increase in wages would make it
necessary for increased efficiency. I said we wouldn't
be able to keep guys employed during the winter which
is a slack season. I also said they could no longer be
given breaks on the cost of buying parts for.their own
bikes and that the two trucks we own would no longer
be at their disposal the way it was before.
3. The bargaining demand and its rejection
Schloer, accompanied by Paul Nolder, the Union's finan-
cial secretary, appeared at the plant that afternoon. They
asked to see Louis Silverman, Respondent's president, but
were told to discuss the matter with Marshall. Schloer asked
if there was anoffice or some place private where they could
talk, and Marshall led them to the parts counter. Schloer
ered parts and service employees
5 Herein called Marshall to distinguish him from his brother Alan, em-
ployed in the parts department.
6 According to him, it was even "common knowledge who had signed the
cards."
7 The facts in this paragraph represent a synthesis of the testimony of
Enright, Foster , and Marshall . Although Marshall's testimony does not ad-
vert to any conversation with Enright preceding his admitted conversation
with Foster, by the same token it does notdeny it, and he did admit discuss-
ing the matter with Enright . And although Marshall placed his conversation
with Foster as of April I I the surrounding events indicate April 12 as the
more likely time. The difference is not significant in any event.
8 The above quote is from Marshall's affidavit given during the investiga-
tion which was received in evidence to impeach his early testimony that he
bad told the employees what "m[ight" j rather than "would" happen with the
organization of the plant, He later admitted on the stand to having actually
told the employees that these events "would have to occur " However, in
answer to the question, "If the employees organized and it resulted in addi-
tional wage or labor costs , would this practice ]allowing employees to use the
Company trucks] have to stop?" he answered , "No, not necessarily," despite
Respondent's position on the record that one of its two trucks would not be
needed at all absent its use by the employees.
informed Marshall that his purpose was to obtain recogni-
tion on the strength of the cards which reflected majority
representation. He displayed the cards as well as a recogni-
tion agreement which Marshall refused to sign. This will be
discussed in detail infra. However, the substance of
Respondent's position, as developed in the 43(b) examina-
tion of Marshall, is enlightening and pertinent here.
Marshall's testimony was as follows:
Q. Did they show you cards that were signed by
your employees?
A. Yes, sir, they did.
Q. Did you look at the cards?
A. Briefly.
Q. Could you tell from looking at the cards, that a
majority of your employees had signed them?
A. It appeared that way, yes, sir.
Q. Could you tell from looking at the cards, that a
majority of your employees had signed them?
A. I would have to say yes.
Q. Did you see the names on the cards?
A. Several of them, and at that point, I stopped
looking.
Q. What was your response to the union at this
point?
A. Disbelief that it even started, and just ignore
them they will go away.
Q. Ignore who?
A. The union, it is just not feasible.
JUDGE HERMAN Is this something that you told Mr.
Schloer?
THE WITNESS. Well, if my memory is right, at that
point, I would have made a statement similar to, just
no, not really interested.
Q. (By Mr. Wollett) at this point, did Louis Silver-
man join the conversation?
A. Somewhere in that vicinity, yes.
Q. What did Mr. Silverman explain?
A. He tried to explain why we thought that the
union was not justified in our shop.
Q. What did he say?
A. Specifically?
Q. That's right.
A. We felt that due to part time and non-non long
time skilled help, the union was not justified, they were
high school kids, and we tried to explain this to them,
they were not interested in listening.
(1)
4. Subsequent events
a. Alleged Section 8(a)(1)
Interrogation, threats, and solicitation of complaints
Meanwhile, according to the credible testimony of Klug,
Tolin, Clemente, and Weisskopf, starting on April 11, when
the cards were signed, and continuing on, Marshall interro-
gated them as to whether they had signed cards or why they
had signed, and described to each the consequences of un-
ionization much as he did in his speech to the group. In fact
the consequences threatened to these individuals were even
more severe, including a flat rate or piecework system with
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no pay for come-back work, a requirement that each me-
chanic no longer use shop tools or his normal hand tools but
purchase his own set of Honda tools at a cost of about
$1,000, the layoff of part-timers, a stricter working schedule,
and even the possibility of closing the service department
altogether.9 Some recalled his hinging these consequences
upon a wage increase; others testified he made no reference
to that as the precipitating condition. To Klug, who had
responded to his inquiries by saying he had signed a card
to get a wage increase, he offered to try to persuade Silver-
man to give him more money.10
On the afternoon of April 12, as Enright and Foster credi-
bly testified, Marshall went over to the warehouse where
they were working and announced that he had talked with
most of the other employees and had sapped their interest
in the Union by the foregoing threats which he proceeded
to reiterate. He also stated that Silverman was so angry
about the matter that he wanted to fire everyone. He added,
however, that if the employees forgot about the Union the
Company would forgive and forget also. To Foster's protest
that this was all illegal, Marshall replied he knew it was, and,
with respect to discharges, that they could be handled
through the simple expedient of waiting till an employee
made a mistake which everybody eventually was bound to
do. Marshall also told them that Silverman had been con-
templating an insurance program for the employees which
would now be dropped because of the organizational move-
ment."
Within the next 2 days, Silverman, "very disturbed .. .
about things done behind [his] back" and "underhandedly,"
which "[he did not] particularly appreciate," admittedly
called a meeting of the employees at which he "reprimanded
everybody" for "ganging up, as a mutiny type of situation"
instead of acting "for themselves," being "responsible for
themselves," and told them:
I am just here to tell you that I am your boss, not Mr.
Foster, not anybody, and if there are any problems or
anybody is unhappy, come to me and not to anybody
else, or my manager Marshall.
I am the one to determine who gets paid what, and
who has the capabilities, and when I feel the time, and
not somebody telling me how to run my business, or
anybody, and feel what employee knows how to do
what.12
He also admittedly told the employees,
9 A warning of much of this was also addressed to Fred Jacob around the
same time in Milt Fischer's presence
10I do not credit Callahan's testimony that Marshall solicited him to
dissuade the other employees from joining the Union. After testifying that
this occurred in a private conversation between him and Marshall in which
the latter also told him that come-back work would be on the employees' time
if the Union came in, he stated on cross that this statement was not made
to him, but was just something he had overheard.
11 Marshall admitted having had discussions with "most of the employees"
individually concerning their card signing and loss of benefits and layoff of
part-timers.
12 As Marshall put it, "he [Silverman] was mad that the people had not
come to him with their problems instead of just suddenly running off and
joining the union."
that certain courtesies we were extending, such as lower
prices on parts, personal use of our trucks and courte-
sies the Company extended to them-not normally giv-
en to employees-would be stopped in order to
compensate for the loss we'd take in increased wages
and in a strict working relationship with a union.'
He also, as testified by Enright, whom I credit,14 told the
employees that he felt a lack of communication between
him and them had contributed to their turning to the Union
and that meetings would be held in the future at which
grievances could be aired. And he said that he wanted tQ let
bygones be bygones and forget about the union incident,
that nothing would be held against anybody, that he would
go ahead with the insurance program which he had decided
to abandon upon first learning of the Union, and he would
not fire anybody for having supported the Union, "even Mr.
Foster." 15
(2) Insurance benefits and wage increases
About a year before the Union's appearance, Respondent
called in an insurance broker to institute a pension plan.
Such plan was put into effect a few months later but did not
serve its purpose of stabilizing the work force. The broker
therefore proposed to substitute a multiple employment
benefits program, and commenced to check with various
insurance carriers in February. Prudential Insurance Com-
pany of America made a proposal March 20 to the broker
who in turn presented it to Respondent. Applications were
filed April 19, and the program became effective May 18.
Silverman and Marshall testified that the program had in
fact been approved prior to the advent of the Union. As far
as the record shows, however, only one employee was aware
that such a program was under consideration before the
union campaign, and there was considerable employee testi-
mony that they knew nothing of such a plan until after the
Union's appearance.
Sometime before the effective date of the plan, Silverman
convoked the employees, explained the plan, and requested
a show of hands of those favoring it.16 All voted for it except
Foster and Weisskopf. At this point Silverman said
Weisskopf's vote did not count since he was quitting
Respondent's employ soon, and that Foster appeared to be
the only obstacle. Additional adverse sentiment developed
among the employees, however, because the plan contemp-
lated only small employer contributions in its early stages,
13 This quote is from the affidavit Silverman furnished during the investi-
gation received in evidence to impeach his testimony that he had told em-
ployees what "might have to" rather than "would" happen with the
organization of the plant.
4 Not only did Enright's demeanor impress me favorably, but it is note-
worthy that he had no ax to grand. He had quit the Company's employ the
week prior to the hearing, apparently with no hard feelings on either side. In
fact he had received a 15-cent per hour wage increase less than 3 weeks earlier
following a 30-cent increase only 2 months before.
15 The last three words are Silverman's own Foster was singled out be-
cause Silverman "was really disturbed about him being there only a couple
of weeks and . trying to tell [him] how to run [his] business... In harsh
terms, I told him I wasn't mad, but come to me This is how I ended it. If
there is a problem, this is what I am here for."
16 The carrier apparently required either unanimity of participation or at
least a certain percentage of those eligible. Eligibility was confined to those
employed fulltime for at least 3 months.
CIVIC CENTER SPORTS 431
and it was felt that a wage raise would be preferable. In July
after subsequent meetings with Respondent presenting such
a choice, the employees voted for a wage increase. Increases
were given to the following employees on the following
dates:
Name
Old
Wage
New Wage and
Increase date
DeSimone $1.90 $2.10 (7/28)
Palmer 1.90 2.10 (7/28)
2.15 (9/28)
Tolin 1.60 1.90 (7/28)
2.05 (9/29)
Enright 1.60 1.90 (7/28)
2.05 (9/29)
Jacob 1.60 1.90 (7/21)
Weisskopf 1.60 1.85 (9/29)
No benefits or privileges enjoyed by the employees have
since been withdrawn. Nor has this resulted in any adverse
action against them.
(3) Later threats
In late August or early September, on the day the Board
agent visited the plant in connection with the filing of the
amended charges, Marshall substantially reiterated to a
group of about half a dozen employees the threats he had
made in April. This finding rests on the undenied and cred-
ited testimony of Toli ind Weisskopf, both still employed
by Respondent.l"
b. Discharge of Foster
Foster was hired by Respondent as a full-time bike build-
er the second week in March. His normal workweek consist-
ed of 5 days excluding Sunday and Thursday, and his
normal hours were from 10 a.m. to 6 p.m.18 From April until
early June he worked directly under Robert Jeznis, service
manager. Jeznis had just returned to work on Monday,
April 3, after hospitalization for a back injury suffered the
previous November. According to Jeznis, Silverman, and
Marshall, Foster had a poor attendance and punctuality
record which was aggravated by his repeated failure to noti-
fy Respondent of his impending absences or his calling in
as late as 1 or 1:30 p.m. to announce to them despite his
awareness of the company rule to call in as close as possible
to the opening time of 10 a.m.
During the first week of Jeznis' return, Silverman told
17 Although Respondent's brief does not argue the point, counsel attempt-
ed at the hearing to impeach this testimony by showing that it had not been
mentioned in affidavits given by the witnesses after the events. In all the
circumstances I do not find such omission alone sufficient basis for impeach-
ment. Cf. International Union of Electrical Workers, Local 601 (Westinghouse
Electric Corp), 180 NLRB 1062, 1066.
18 Each service shop employee was permitted to pick any day but Saturday
as his regular day off, and in order to take a different day in a particular week
he had to clear it with management by giving advance notice and reasons
therefor
him that Foster "had been missing a lot of time" and that
he would be "let go" on Friday. However, Jeznis dissuaded
him from such action, pointing out that they were busy and
needed all the help they could get. He then immediately
talked to Foster about this, reminding him of the obligation
to call in and warning him "that if you keep this up, you will
not be here very much longer." In the face of this testimony
by Jeznis, I do not credit Foster's denial that Jeznis ever
spoke to him about his absenteeism or punctuality 19 or
Foster's assertion that he or his wife "always" called in
when he knew he would be absent. I find Jeznis an entirely
truthful witness on the basis both of demeanor and a lack
of personal interest in the outcome,20 as reflected in the facts-
that his testimony as a whole is both favorable and unfavor-
able to each party (he was initially called by General Coun-
sel) and finds support in certain objective considerations
noted infra.
Shortly after the Union's appearance the following week
at a meeting Jeznis had with Silverman and Marshall, as
credibly testified by Jeznis, Foster's name was mentioned as
one of the organizers, and Silverman said in effect that this
was another thing Foster had done wrong and he was going
to fire him. Marshall, however, said they could not fire him
then because it would look like he was being fired for his
union activity.
Foster's poor attendance and punctuality habits persisted
and were the subject of several discussions between Jeznis
and Silverman or Marshall, and at one point a few days
after the initial union activity Silverman told Jeznis that he
was putting Foster on probation for his absenteeism. To
Jeznis' knowledge Silverman or ;Marshall also discussed
the matter with Foster himself three or four times 21
Weisskopf testified for the General Counsel in rebuttal
that despite numerous absences and latenesses of his, he was
spoken to only once about it, that being the same occasion
testified to by Foster, when they shared a residence and
arrived at work about a half-hour late; that he was absent
about 10 times from March through June, about 6 or 7 of
which were without prior notice to Respondent; and that he
quit the job in July and was reemployed in August without
any reference to his prior record. However, he was a student
working part time until May 1, and such employees, unlike
full-timers, were rarely questioned by management which
fairly readily assumed that deviations from schedule were
dictated by scholastic need. His alleged absences as a full-
time employee eventually narrowed down to four although
he was quite vague, and of these not more than one was
without Respondent's knowledge. During the 8-week period
from the week ending May 10, Weisskopf's first week of
full-time employment, to the end of June, when he quit, he
worked a total of 311 hours as compared with 271-1/2
worked by Foster. 22
On Wednesday, July 5, Foster was sent to another build-
ing to work. He returned to the main building at the end of
the day and punched out. He did not work the next day, his
19 Foster admitted to a single occasion when Marshall reprimanded him
for being late. -
20 He voluntarily quit the Company's employ early in June.
21 Foster's denial of this is also discredited.,
22 General Counsel's brief nowhere adverted to Weisskopf' s testimony on
this phase of the case.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular day off. When he reported on Friday, he was told
he had been fired because he had missed the 2 previous
days. The matter was straightened out when he reminded
Podolsky, who was then service manager, of the facts.
When Foster reported for work on July 15, Marshall told
him he was fired for having taken off the previous day
without calling in, and that he had been doing that too
often. Foster did not protest. Foster's wife testified that she
had called in for him that day to say he was sick, and told
that to the man who answered the phone, and that the man
replied, "He's sick?" and when she said, "Yes," he said
"Okay."
in addition, however, that "to the best of [his] recollection"
Schloer's oral request did not specify the parts and service
departments but related to the employees generally, that he
did not handle the authorization cards himself but merely
looked at those displayed to him by Schloer, that he did not
admit to the union representatives that a majority had
signed the cards, and that the form of recognition agree-
ment (which he had seen but not read) was not left with
Respondent at the conclusion of the visit. Silverman denied
using the pejoratives attested by Schloer and Nolder, but
admitted describing his employees as "god-damn people or
something like that."
5. Refusal to bargain
a. The demand and refusal
According to the testimony of Union Representatives
Schloer and Nolder,23 Schloer orally informed Marshall on
the occasion of the recognition request on April 12 that the
Union represented a majority of the employees in
Respondent's parts and service departments and handed
Marshall the nine signed authorization cards which the lat-
ter proceeded to examine, separating those of employees he
termed "apprentices" from those he called "mechanics";
and while acknowledging that a majority of the employees
had signed he refused to recognize the Union, as did Silver-
man who joined the conversation at or about that time, on
the ground that it was infeasible for a cycle shop to be
unionized, particularly that one in view of the nature of
these specific employees to whom Silverman applied such
terms as "freaks" and "Perverts." 24 The union representa-
tives also testified that in the course of their visit Schloer
either handed to Marshall or laid before him on the counter
top for signature a form of recognition agreement defining
the bargaining unit as covering the parts and service depart-
ments, and that such form was left with Respondent when
they departed.
As stated above, Marshall admitted that he could tell
from seeing the cards that a majority of the employees had
signed them but that his reaction was "disbelief that it even
started, and just ignore them they will go away" because the
Union was "just not feasible," and his response to Schloer
was "just no, not really interested"; and similarly, that Sil-
verman and he both tried to explain that "due to part-time
and non-non long time skilled help, the union was not
justified, they were high school kids." 25 Marshall testified
23 Supported by a written summary prepared by Nolder the same evening,
admitted in evidence over Respondent 's objection . Cf. Allis-Chalmers Manu-
facturing Co., 179 NLRB 1, 2; NL.R.B. v. Tex-Tan, Inc, 318 F.2d 472,
483-484 (C A 5, 1963)
24 I do not credit Schloer 's statement that Silverman had also used the word
"longhaired" since that adjective was not recalled by Nolder and since, as
urged by Respondent, it might well have fitted Silverman himself.
5 At the conclusion of Silverman 's direct examination near the close of the
hearing, he mentioned to his attorney for the first time, and testified , that as
Schloer and Nolder were leaving, "I believe that I brought up the fact that
I would let [the employees ] re-vote if they knew what was going on In fact
I even brought it up again to [the Board 's investigator ] and she said there was
no way they could take a second vote." Absent any other testimony on the
matter from Schloer or Nolder , I credit this However , I regard it as not
relating to the holding of an election but as indicating a possible willingness
b. The unit and majority status
The bargaining unit alleged in the complaint (substantial-
ly identical to that set out in the form recognition contract
presented to Marshall) consists of:
All service and parts department employees employed
by Respondent at its Pittsburgh, Pennsylvania, facili-
ties, excluding all office clerical employees, salesmen,
watchmen and guards, professional employees and su-
pervisors as defined in the Act.
Although Respondent's answer would have modified the
above to include all sales employees and to exclude all
part-time employees and high school students employed in
conjunction with vocational student work programs, Re-
spondent changed its position at the hearing and in its brief
by (1) agreeing to the noneligibility of sales employees as
such, and (2) withdrawing its opposition to the inclusion of
part-timers as such. The differences between the parties thus
narrowed down to five employees:
Ralph Lombardo, whom General Counsel would exclude
as a salesman but Respondent would include solely on the
basis of work he performed in the parts department; Caryle
DeSimone Jones, whom General Counsel would exclude as
an office clerical and confidential employee and Respon-
dent would include on the basis of work she performed both
in parts and service; Allan Hausrath, whom General Coun-
sel would exclude as a supervisor or managerial employee
in charge of the parts department; Robert Jeznis, whom
General Counsel would exclude as a supervisor or manage-
rial employee in charge of the service department; and Rob-
ert Tolin, whom Respondent would exclude as a participant
in a high school vocational "co-op" or "student work" pro-
gram.
As of the time of the demand and refusal to bargain,
Respondent's entire complement consisted of 16 persons
excluding Silverman and Marshall. The parties stipulated to
the exclusion of Shirley Ransley, an office clerical, thus
leaving 15 as the maximum possible number of employees
constituting an appropriate bargaining unit. Of the 15, 9
signed cards.26 Respondent concedes the validity of four,
those of Enright, Fischer, Foster, and Callahan, but con-
tends that four others may not be counted because under
Pennsylvania law the appointment of an agent by a minor
to abide by the results of a second card solicitation after he had an opportuni-
ty to present his side to the employees.
26 Alan Hausrath signed a tenth card but secured its return and destroyed
it prior to the request to bargain
CIVIC CENTER SPORTS 433
is voidable at the minor's election and that pursuant to
offers of proof at the hearing each of said employees (Jacob,
Clemente, Klug, and Weisskopf) would have testified that
he was a minor, that Klug and Clemente would further have
testified that they would revoke their card if given the op-
portunity, and that Jacob would have testified that if per-
mitted to affirm or revoke his card he would do neither.
Respondent also contends that if Tolin is a member of the
unit his card may not be counted because he testified he is
a minor and that pursuant to an offer of proof he would
have testified that the day after signing the card he told a
fellow employee who was going to the union meeting that
he wanted to withdraw the card.
Finally, Respondent contends, based on an offer of
proof, that Tolin also would have testified that by signing
the card he was saying only that he was interested in the
Union and he wanted to learn more about the benefits
offered 27 And it relies on the testimony of Clemente and
Klug that they had not read their cards, and on Klug's
additional testimony that he thought it was gust a general
interest card." 28
B. Analysis
1. Section 8(a)(1)
a. Threats and interrogation
The facts recited above leave no room for doubt that
Respondent was strongly opposed to the Union's presence
and made no attempt to conceal its antipathy. Silverman
admittedly was sufficiently "disturbed" over the organiza-
tional drive, which he deemed "underhanded" and "done
behind [his] back," to call a meeting-of the employees within
2 days after the bargaining demand when he "reprimanded
everybody" for "ganging up, as a mutiny type of situation."
Given such an obvious overreaction, which Respondent's
counsel attributed at the hearing to " ignorance more than
design," the substantial employee testimony that Silverman
accompanied his reprimand with the threat to eliminate
certain benefits the employees had been enjoying was en-
tirely credible. And although Silverman testified at the hear-
ing that he had told the employees only that he "might have
to" remove these "courtesies," as he called them, that testi-
mony was impeached by his affidavit given during the in-
vestigation which, corroborating the employees, stated that
he had told them the benefits, "would be stopped." This
threat, moreover, was quite consistent with those uttered by
Marshall immediately after the card signing and repeated
and enlarged thereafter.29,
Respondent contends that the statements nevertheless
were mere economic predictions rather than unlawful
threats because they were keyed to the increased costs ex-
pected to result from an anticipated increase in wages. De-
spite considerable employee testimony that the statements
here under attack contained no reference to economic ne-
cessity, at least two of the General Counsel's witnesses cor-
roborated Silverman and Marshall in this respect, and I find
that the connection was specifically mentioned. Admittedly,
however, the reference to any increase in wages rested en-
tirely on a bare assumption since Respondent had no
knowledge of how much of an increase, if any, the Union
would demand, much less insist upon. This alone would not
necessarily undermine Respondent's contention that the
statements constituted permissible predictions. An employ-
er may anticipate increased operating costs as a concomi-
tant of unionization. N.L.R.B. v. New England Web, Inc.,
309 F.2d 696, 701-702 (C.A. 1, 1962); N.L.R.B. v. J. M.
Lassing, d/b/a Consumers Gasoline Stations, 284 F.2d 781,
783 (C.A. 6, 1960). But these very cases, relied upon by
Respondent , recognize that the essential question remains
whether the action is in fact economically motivated,30 and
militating against such a finding here is Marshall 's admis-
sion, at least in respect to the elimination of the practice of
allowing the employees to use the company trucks:
Q. If the employees organized and it resulted in ad-
ditional wage, or labor costs, would this practice have
to stop?
A. No, not necessarily.
Moreover, when Silverman thereafter proposed an insur-
ance program to the employees , or a wage increase as an
alternative, no mention was made of a need to withdraw any
benefits or take any other action by way of compensation.
And none of these benefits or "courtesies" was in fact lost
or any other adverse action taken notwithstanding at least
six employees subsequently received a total of nine wage
increases ranging from 10 to 28 percent 3t I therefore find
that the mere expectation of an increase in cost of operation
did not underlie Respondent's threats.32
Nor were the employees so led to believe.33 Instead it was
their unionization to which they must have had to attribute
such prospective misfortune. For if, as appears, deprivation
of the benefits or subjection to more stringent conditions or
the layoff of part-timers was not economically necessary,
then concern for the rights of the employees required that
any predictions in that area be couched in terms of the
possible or, at most, the likely, rather than the inevitable.
Essex Wire Corp., 188 NLRB 397. As Chairman Miller stat-
ed the principle, while dissenting from the factual conclu-
sions there, "one who undertakes to speak about such issues
27 Tohn did testify , however , that he read the card before signing it and
he was told at the time by Foster "that the rest of the employees were
interested in the union . He said that if enough people signed the cards, there
would be a meeting following and that if I were interested for me to sign the
card. If enough people were interested , they would try to get the union as a
bargaining agent "
2 Each, however, filled out his card, and the cards bore the following
words in large white letters on a background of red "YES, I WANT THE
IAM," which Klug testified he "imagineldl" he had seen
29 As noted above, I have similarly discredited Marshall's testimony, ex-
cept in regard to the possible closing of the service department , that he had
only predicted what "mlight] " happen.
30 See also Fotomat Corporation , 199 NLRB 732.
3 1 Only one of these , DeSimone Jones , was arguably not in the relevant
bargaining unit , and Respondent thinks she belongs.
3 No explanation has been offered , and I am unable to perceive, why
increased operating costs would have required each mechanic to buy his own
Honda tools while shop tools or indeed his own hand tools were still avail-
able, or why each mechanic would ever need a complete Honda set for
himself rather than share with others.
33 "The question is not only what the employer intended to imply but also
what the employees could reasonably have inferred ." N.LR.B v. Kaiser
Agricultural Chemicals , 473 F 2d 374 (C A. 5, 1973)
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must choose his words with care. We impose that burden of
care in order that there may be some communication about
matters of sharp dispute and vital concern." Id. Such "care"
is not to be inferred on the part of an employer, concededly
"ignoran[t]" in labor relations, who, even after consultation
with counsel and in open court, characterizes the organiza-
tion of his employees as a "mutiny." Particularly notewor-
thy in this connection is Marshall's admission (fn. 8, supra)
that he told the employees that the changes "would have to
occur."
I therefore find that the various statements by Silverman
and Marshall, in the form of speeches or otherwise, describ-
ing prospective changes in the employees' working condi-
tions in the event of unionization , violated Section 8(a)(1)
of the Act 3a
As shown above, Marshall had commenced his antiunion
conduct even before the speeches by questioning Enright
and Foster upon their arrival at work the day following the
organizing drive to ascertain what they had accomplished.
Upon learning of their success in signing up the employees,
he called the meeting at which he made the threats men-
tioned above. Meanwhile, on the very day the cards were
being signed and continuing until the afternoon of April 12,
Marshall conducted individual interrogations of various
employees as to their union sympathies and made and in-
deed expanded on the threats made at the meeting, so that
he was able to announce to Enright and Foster by that
afternoon that he had already caused defections on the part
of many of the card signers. As in King Chrysler-Plymouth,
174 NLRB 531,
these inquiries were made for the purpose of ascertain-
ing the union sympathies and attitudes of each
salesman . Interrogation of this nature, engaged in by
high-ranking managers, without any assurances against
refusal, and in the context of other anti-union activity,
reasonably tends to be coercive.
Marshall's further statement to Enright and Foster at the
same time, that Silverman was so angry that he wanted to
fire everyone and drop the plans he had in mind for an
insurance program for the employees but would stay his
hand if the employees forgot about the Union, also violated
Section 8(a)(1) .35
b. Solicitation of complaints
Respondent also violated Section 8(a)(1) through
Silverman's telling the employees to act for themselves and
bring their problems directly to him rather than through a
union . N.L.R.R. v. WKRG-TV, Inc., 470 F.2d 1302 (C.A. 5,
1973); King Chrysler-Plymouth, 174 NLRB 531; Eagle-Pich-
er Industries, Inc., 171 NLRB 293. Although Respondent
contends that such solicitation was but the continuation of
a practice to hold meetings when problems arose, the situa-
tion differed on this occasion when, in Marshall's words,
34 The substantial reiteration of the threats in August constituted a further
violation.
35 Similarly violative was Silverman 's repetition of the statement concern-
ing the insurance benefits
Silverman "was mad that the people had not come to him
with their problems instead of first suddenly running off
and joining the union." This testimony destroys
Respondent's contention that it was not motivated by a
desire to undermine the Union's support.
c. Insurance benefits and wage increases
Although it is undisputed that Respondent conceived the
idea of a pension plan or insurance benefits program over
a year before the advent of the Union, and that negotiations
were commenced with the Prudential Insurance Company
for the program more than a month prior to the advent of
the Union, General Counsel contends that the implementa-
tion of the program on May 18 violated Section 8(a)(1),
relying, first, on the failure of the Company to notify the
employees of the program until after the Union's appear-
ance; and second, on the Company's threat to abandon the
program when it first learned of the Union's presence, fol-
lowed by its decision to institute it anyway.
I find the first reason without substance. While it might
have merit were the issue whether the plan had in fact been
considered before the Union's appearance, in the present
context it would bar a plan conceived entirely without re-
gard to the Union simply because the Union's arrival fortui-
tously preceded notification to the employees even though
the employees are then truthfully informed of the plan's
history. This is not the law as I understand it. Cf. Weston's
Shopper City, 189 NLRB 234.
General Counsel's second contention, however, has
greater force. I have already found coercive Marshall's
statement of April 12, essentially repeated by Silverman
shortly thereafter, that Silverman had decided to drop the
insurance benefits plan when he first learned of the Union
but had subsequently changed his mind and would adhere
to it as part of a forgive-and-forget policy if the employees
gave up the Union. This example of the carrot following the
strike provides the "nexus" held lacking by the Board in
MPC Restaurant Corp., 198 NLRB No. 13, relied upon by
Respondent. I find the effectuation of the benefits plan
unlawful in motive and reasonable effect. Cf. Waters Distri-
buting Co., 182 NLRB 967.
Similarly violative were the wage increases given in lieu
of the insurance benefits when the latter failed to command
sufficient employee support. I agree with Respondent that
the legality of the raises turns on that of the insurance
benefits plan. Since the latter has been found unlawful, the
raises take on the same character.
d. Creating the impression of surveillance
I find no merit to the contention that Respondent created
an impression of surveillance in violation of the Act. Sur-
veillance was quite unnecessary in this campaign to ac-
quaint Respondent with knowledge of the identity of the
union supporters. Nobody concealed his union activity, and
what was not openly observed by management was sought
through interrogation, as seen above. The resort to interro-
gation itself suggests the absence of surveillance. Cf. George-
town Steel Corp., 189 NLRB 463.
CIVIC CENTER SPORTS 435
2. Section 8(a)(3)
Given the surrounding unfair labor practices and the
Company's particular hostility toward Foster for his leading
role in the organizational drive, it would not be difficult to
infer the motive essential to support an 8(a)(3) finding in his
discharge but for one consideration-an abiding convic-
tion, based upon the facts set out above, and stemming
heavily from Jeznis' credited testimony, that Foster, to a
greater degree than any other employee, had exceeded all
reasonable bounds by a combination of absences, lateness-
es, and failure to give appropriate notice to the Company.
This is not a case where a previously satisfactory employee
is found wanting for the first time after engaging in union
activity. Nor is it a case where prior unsatisfactory work is
tolerated or "condoned," as urged by the General Counsel
(br. p. 23), until the union activity starts. What we have here,
rather, is an employee who has been so unsatisfactory that
the employer decided to fire him before the commencement
of any union activity only to be swayed from that course by
the man's immediate superior on the ground that the Com-
pany was busy and needed all the help it could get.
While Silverman, shortly thereafter and following the
union activity, was dissuaded from an obvious illegal dis-
charge of Foster by Marshall's warning that the unlawful
motive would be apparent, it would have to be assumed, to
find a violation, that such motive persisted 3 months later
when the discharge occurred. Although there is evidence to
support this, we should expect a precipitating incident.
There was none, however , unless it be what General Coun-
sel urges constituted the pretext Respondent had been seek-
ing; i.e., Foster's absence. The difficulty with this is that
Respondent took no action when at least as good opportuni-
ties were presented earlier.36 Cf. G & S Metal Products, Inc.,
198 NLRB No. 65; P.G. Berland Paint City, 199 NLRB 344.
The fact is, however, that it was not merely his absentee
record that dissatisfied Respondent but his tardiness also
and his failure to inform Respondent of his absences as he
knew was required. Although not generally impressed with
Silverman's or Marshall's credibility, I was no more im-
pressed with Foster's in respect to the events underlying his
discharge, and to the extent that the testimony of Silverman
and Marshall is corroborated by Jeznis or otherwise seems
more probable than Foster's I credit it. Since Jeznis testified
that Respondent was much upset with Foster for failing to
call in prior to the Union's appearance, and that Foster's
neglect in this respect continued throughout the period that
Jeznis remained with the Company, I am unable to credit
Foster's testimony that he always fulfilled his duty to call
in. By the same token, I cannot credit Foster's statement
that except for the single occasion when he and Weisskopf
were berated by Marshall for lateness no one had ever taken
him to task for such derelictions. Not only did Jeznis testify
that he, as well as Silverman and Marshall, had criticized
Foster therefor, but it defies reason that such incidents
would not have been seized upon if Respondent had in fact
been trying to build a case against Foster.
36 For example, 3 weeks earlier, Foster had worked only 27-1/2 hours as
compared with the 36 he worked his last week; and the week before that he
had worked only 28 hours.
Finally, I do not credit Foster's wife's testimony that she
called in for him on July 14. If she had Foster would hardly
have failed to protest the discharge when Marshall an-
nounced it to him the following day. Such silence on
Foster's part would have been quite out of keeping with his
militance, particularly in light of his successful protest the
previous week when he felt he had been wronged.
General Counsel's attempt to fit the instant case into a
condonation mold flies in the face of the repeated criticism
meted out to Foster. The decision in early April to keep him
on as a result of Jeznis' intercession rested completely on the
scarcity of employees, and Jeznis warned Foster at that time
that a continuation of his conduct would lead to his dis-
charge. But the pattern persisted after additional repeated
warnings during Respondent's busy season so as to bring
into question whether Jeznis' reason for retaining him re-
mained valid, and on balance the Company found his atten-
dance habits no longer tolerable. The sole protected activity
in the interim was that occurring 3 months before his dis-
charge. The condonation cases cited by General Counsel
are clearly distinguishable.
Accordingly, I find that the General Counsel has failed
to sustain the burden of proving that Foster's discharge
violated the Act.
3. 8(a)(5)
a. Sufficiency of the demand
Respondent, relying on Marshall's testimony that Schloer
had failed to specify the group of employees for whom
representation was claimed, contends that the bargaining
demand was insufficient in law in view of the requirement
that a demand "clearly define the unit," citing The C.L.
Bailey Grocery Company, 100 NLRB 576, 579. I find the
contention without merit.
In the first place, I credit the testimony of Schloer and
Nolder that the service and parts departments were speci-
fied at the time. 7 Not only did Marshall fail to inspire
confidence as a witness generally, but his specific negation
here was not absolute but only "to the best of [his] recollec-
tion." Moreover, as Respondent itself has urged, Schloer
was sufficiently experienced to realize the importance of the
precision of his demand, and he has made substantially
similar demands of automobile dealers, the type of employ-
er with whom he usually does business. See, e.g., Meehan
Truck Sales, Inc., 201 NLRB 780.
I am also satisfied that if the oral demand lacked the
necessary specificity, Marshall knew from the recognition
37 Contrary to Respondent's brief, Schloer's reference at one point in his
cross-examination to his having told Marshall that the majority "of your
employees" had signed cards did not weaken either his direct testimony or
his later statement on cross that he had specified the parts and service
departments. Had he repeated the specific words each time the matter was
adverted to, Respondent might well have contended his testimony was too
pat. Nor is a different conclusion warranted from the fact that Schloer's
affidavit given during the investigation also referred to "a majority of his
employees." The purposes of the affidavit did not require greater specificity,
and indeed the very next sentence mentioned the recognition agreement
which clearly specified the parts and service departments. See International
Union of Electrical Workers, Local 601 v. Westinghouse Electric Corp., 180
NLRB 1062, 1066.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement presented,to him 38 the scope of the unit sought.
Even if he did not read it at that time, I find that it was left
with him and I am unable to believe that he did not read
it after the union representative left and while the demand
still remained operative.
In any event the Bailey Grocery principle would seem
inapplicable to a case like this where, as we shall see in
section b, infra, the majority status of the Union is not
affected by the scope of the unit. In Bailey, where the bar-
gaining request was susceptible of interpretation as embrac-
ing "a plant-wide unit in which the Union did not ,have a
majority" (100 NLRB at 577), it was quite appropriate for
the Board not to require the employer to resolve the
ambiguity "in view of the prohibition of the Act against
recognition by an Employer of a union which does not
represent a majority" (Id. at 579). But where, as here, the
Union's majority status does not depend on the unit's ex-
tent, requiring the employer to request whatever clarifica-
tion is desired seems more reasonable than permitting
outright rejection of the demand. Cf. Heck's Inc., 166
NLRB 186, 191. This is particularly so where, as here, the
rejection rests neither on doubt of the, scope of the unit nor
on doubt of the majority but, as shown above, entirely on
Respondent's belief that its employees are not ripe for orga-
nization.
b. The Union's majority status
As set forth above, the maximum possible number of
employees in the unit at the critical time was 15. Respon-
dent would reduce the number to 14 by eliminating Tolin,
while General Counsel would put the number at 11 by
including Tolin but excluding Jeznis, Alan Hausrath, Lom-
bardo, and Caryle DeSimone Jones. Eight employees would
thus constitute a majority an either basis. Since nine (in-
cluding Tolin) signed cards the Union thus had a clear
majority, even with Tolin's exclusion from the unit, unless
there is validity to Respondent's argument that the cards of
Jacob, Clemente, Klug, or Weisskopf should not be count-
ed. I find no such validity and hence deem it unnecessary
to reach any of the card status or eligibility issues raised in
respect to Tolin, Jeznis, Alan Hausrath, Lombardo, or Ca-
ryle DeSimone Jones.
Respondent's principal contention here is that Jacob,
Clemente, Klug, and Weisskopf, as minors under Pennsyl-
vania law, could elect to void their appointment of an
agent,39 and thus were free to revoke their union designa-
tions at any time, and that the would have do so if given
the opportunity at the heanng.4 One obvious difficulty with
this position is that at least until the offers of proof, the
cards were still effective. As of the time of the demand and
refusal to bargain, therefore, the Union's majority was in-
tact. And its loss thereafter would not affect the propriety
of a bargaining order otherwise satisfying Gissel stan-
38 It was either handed to him or placed before him on the parts counter
39 Citing Feagles v. Sullivan, Guardian , 32 D & C (Pa.) 47 ( 1938).
40 In point of fact , as indicated above, Respondent 's offer of proof in
respect to Weisskopf adverted only to his age, and as to Jacob, that he would
neither affirm nor revoke his card As to these employees , therefore, Respon-
dent urges in effect, contrary to Pennsylvania law, that a minor's card is not
merely voidable but void ad in#io- Feagles v Sullivan, Guardian, supra, at
52-53.
dards al A fortiori, the original majority cannot be deemed
to suffer from subsequent defections following, as here, the
commission of unfair labor practices directed to the specific
individuals involved.
Respondent's argument, moreover, has been authorita-
tively rejected as "unworthy." N.L R.B. v. New Era Die,Co.,
118 F.2d 500, 505 (C.A. 3). The court there pointed out:
If such.were the law, then in units where minor employ-
ees predominated, they would be unable to bargain
collectively at all. But, it is the majority choice of the
employees in an appropriate unit, and not just of the
adults among them, which the National Labor Rela-
tions Act contemplates; hence, anyone old enough to
be em1loyed is old enough to vote for a bargaining
agent. 2
The further contention is advanced by Respondent that the
New Era case erroneously equated authorization cards with
ballots and that this position has been superseded by the
Supreme Court's recognition in Gissel that cards are a less
reliable barometer of employee sentiment than a secret elec-
tion. However, Gissel laid down no new doctrine in this
respect. At the very time the Board decided the New Era
case, its policy favored elections as the best means of resolv-
ing representation disputes. 5 NLRB Ann. Rep. 60-61
(1940). But as Gissel holds, the less trustworthy means must
suffice where a fair election has been rendered impossible
or unlikely by the employer's misconduct, and this principle
is equally applicable to minors and adults. Any other con-
clusion would subvert the national policy's concern for all
the employees in the unit, including indeed those of other
minors who would affirm their adherence to the union.
Respondent also urges disregarding the cards of Cle-
mente and Klug because the former had not read it before
signing and because Klug not only had not read it but
thought it was "just a general interest card." I find these
contentions baseless. Not only did these employees admit
filling out their cards, an action which of itself would seem
impossible to reconcile with a failure to read them, but, as
already noted (fn. 28, supra), the purpose of the cards was
unmistakably and inescapably apparent at a mere glance.
The contentions, moreover, would produce precisely the
"endless and unreliable inquiry" eschewed in Gissel. 395
U.S. at 607-608.
I accordingly find that the Union represented a majority
of the employees in the appropriate unit alleged in the com-
plaint.
c. Bargaining order
Notwithstanding the Union's majority status and the suf-
ficiency of its bargaining demand, and whether or not Mar-
shall handled or examined the cards, Respondent's refusal
to recognize the Union on the basis of the cards did not,
under current Board doctrine, violate Section 8(a)(5) unless
its conduct precluded resort to an election. Green Briar
41 N.L R.B. v. Gissel Packing Co, 395 U S 575, 610, 614.
42 Cf. San Diego Building Trades Council v. J S Garmon, 359 U.S 236,
244; see also Northern Metal Co, 175 NLRB 896-897; Griffith Ladder Corpo-
ration , 159 NLRB 175, 184
CIVIC CENTER SPORTS 437
Nursing Home, Inc., 201 NLRB 503; R & M Electric Supply
Co., 200 NLRB No. 59.,I find that it did, and that a bargain-
ing order is indicated under Gissel, supra, because
Respondent's 8(a)(1) actions in the particular circumstances
of this case were so "extensive .- . . in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future . . . that the possibility of erasmg
[their] effects . . . and of ensuring a fair election . . . by the
use of traditional remedies . . . is slight and that employee
sentiment . . . would,,on balance, be better protected by a
bargaining order." 395 U.S. at 614-615.
The Company's misconduct here included coercive inter-
rogation; angry recriminations expressed by its top official
to all the employees for joining the Union rather than bring-
ing their problems to him; repeated threats (most, again,
addressed to all the employees) by the same official and/or
his second-in-command to withhold existing and pros-
pective benefits, impose more onerous working conditions,
lay off part-timers, and even discharge the employees; and
the grant of insurance benefits and wage increases. See Gen-
eral Stencils, Inc., 195 NLRB 1109 (dissenting opinion of
Chairman Miller, seemingly approved in 472 F.2d 170
(C.A. 2, 1972) ).
This occurred, moreover, in a unit of only 11-14 employ-
ees, young, impressionable, and unsophisticated in the
rights of labor. Although Respondent relied on their very
immaturity for the proposition that they should not be sub-
ject to organization, I believe the greater danger to be their
susceptibility to Respondent's economic power as-already
manifested in the defections boasted of by Marshall to En-
right and Foster and reflected in Respondent's offers to
prove that the nine signatories had reduced to four. The
likelihood of a fair election is not heightened by the testimo-
ny of Silverman and Marshall which still demonstrates an
attitude of strong hostility to organization offering small
hope against a recurrence of the misconduct or at least the
legitimate fear thereof on the part of the employees remain-
ing.
and desist therefrom and, in view of the number and variety
of the violations and the danger of recurrence, to cease and
desist from infringing upon the Section 7 rights of its em-
ployees in any other manner. Moreover, in order to effectu-
ate the policies of the Act, and more particularly for the
reasons set forth in the section, supra, entitled "Bargaining
Order," my recommended Order will require that Respon-
dent bargain collectively and in good faith with the Union
upon the Union's request in the unit alleged in the com-
plaint.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER43
Respondent, Civic Center Sports, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees con-
cerning their union activities, views, or sympathies or those
of their fellows.
(b) Threatening any of its employees with loss of existing
or prospective benefits, imposition of more onerous work-
ing conditions, discharge, or layoff if they select or retain
the Union or any other labor organization as their bargain,
ing representative.
(c) Soliciting employees to bring complaints to it rather
than to the Union or any other labor organization.
(d) Granting wage increases or other benefits to its em-
ployees to undermine their support foi the Union or any
other labor organization.
(e) Refusing to bargain collectively and in good faith
with International Association of Machinists and Aero-
space Workers, District No. 63, AFL-CIO, as the exclusive
representative of its employees in the following appropriate
unit:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
interrogating and threatening its employees in connection
with their union activities, by soliciting complaints from
them, and by granting them insurance benefits and 'wage
increases.
4. Respondent has violated Section 8(a)(5) of the Act by
refusing to bargain with the Union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act by its discharge of
Foster, and did not create an impression of surveillance.
REMEDY
In order to remedy the unfair labor practices found herein
my recommended Order will require Respondent to cease
All service and parts department employees employed
by Respondent at its Pittsburgh , Pennsylvania , facili-
ties, excluding all office clerical employees , salesmen,
watchmen and guards, professional employees and su-
pervisors as defined in the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
with International Association of Machinists and Aero-
space Workers, District No. 63, AFL-CIO, as the exclusive
representative of all the employees in the above -described
appropriate unit, and embody in a signed agreement any
understanding reached.
43 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 herein 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
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its place of business in Pittsburgh, Pennsylva-
nia, copies of the attached notice marked "Appendix." 44
Copies of said notice, on forms provided by the Regional
Director of Region 6, after being duly signed by an author-
ized representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
nn In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
All service and parts department 'employees em-
ployed by Respondent at its Pittsburgh, Pennsylva-
nia, facilities, excluding all office clerical employees,
salesmen, watchmen and guards, professional em-
ployees and supervisors as defined in the Act.
WE WILL NOT coercively question any of our employees
about their union activities, views, or sympathies, or about
those of their fellow employees.
WE WILL NOT threaten any of our employees with loss of
existing or future benefits or with harder working condi-
tions, or layoff or discharge because they choose or keep the
IAM or any other union as their collective-bargaining repre-
sentative.
WE WILL NOT solicit employees to bring complaints to us
rather than to the IAM or any other union.
WE WILL NOT grant wage increases or other benefits to our
employees to undermine their support for the IAM'or any
other union.
WE WILL NOT in any other manner interfere with the right
of our employees to engage in organizational activity or
collective bargaining, or to refrain from such activities.
Dated By
WE WILL bargain collectively and in good faith with
IAM District 63 as the exclusive representative of our
employees in the bargaining unit described below in
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if
an understanding is reached, sign a contract containing
such understanding. The bargaining unit is:
CIVIC CENTER SPORTS, INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1536 Federal Building, 1000 Liber-
ty Ave., Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.