Jerry Roth Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1971

194 N.L.R.B. 352 (N.L.R.B. 1971)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jerry Roth Chevrolet, Inc. and International Associa-
tion of Machinists and Aerospace Workers and its
District Lodge 86, AFL-CIO. Case 27-CA-3213
November 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September, 14, 1971, Trial Examiner Herman
Corenman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed
cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings,' and conclusions
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Jerry Roth Chevrolet, Inc., Denver,
Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
r The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C.A 3). We have carefully examined the record and
find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CoRENMAN, Trial Examiner: This case was tried
at Denver, Colorado, on July 29, 1971, on a complaint
issued against Jerry Roth Chevrolet, Inc., herein called
Respondent, on May 7, 1971, pursuant to a charge filed by
International Association of Machinists and Aerospace
Workers and its District Lodge 86, AFL-CIO, herein called
the Union, on March 30, 1971. The complaint alleges acts
of interrogation of employees and threats of reprisal by the
Respondent's president in violation of Section 8(a)(1) of the
National Labor Rielations Act, as amended, herein called
the Act. The Respondent's answer denies the alleged
violations.
Upon the entire record, observation of the demeanor of
the witnesses, oral argument by the parties, and the brief of
the General Counsel, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that the Respondent
is a Delaware corporation with its principal place of
business at Denver, Colorado, where it is engaged in the
retail sale of automobiles, parts, and services. In the course
and conduct of its business operations during the past year,
the Respondent had retail sales in excess of $500,000 and
received directly from points and places outside the State of
Colorado goods and materials valued in excess of $50,000. I
find that Respondent is now, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNION INVOLVED
The Union, International Association of Machinists and
Aerospace Workers and its District Lodge 86 , AFL-CIO, is
now, and at all times material has been , a labor
organization within -the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
In issue is whether the Respondent's president, Gerald
Roth, engaged in the following conduct in alleged violation
of Section 8(a)(1) of the. Act: (1) interrogated employees
concerning their activities on behalf of and in support of
the Union; (2) asked an employee if he had attended a
union meeting; and (3) threatened an employee that the
Respondent would not negotiate with the Union, would
close its doors before negotiating with the Union, and there
would be no work if the employees selected the Union as
their representative.
B. Background
The Union during March 1971 was openly conducting a
union organizational campaign of service department
employees of automobile dealers in the Denver area. The
Denver daily newspapers, through advertisement and news
items, publicly announced two meetings to be held
Saturday, March 20, 1971, at 10 a.m. and at 2 p.m. for all
auto dealer mechanics and other service department
employees, at the Denver Labor Center. The newspaper
advertisement in the March 18, 1971, Denver Post
announced the object of the meetings "to formulate
plans-to gain recognition and bargain for our various
skills and related services."
Mr. Gerald Roth, Respondent's president, testified that
he had received a complaint from another automobile
dealer that one of his employees had come to that dealer's
premises to discuss union organization with his mechanics.
Mr. Roth agreed with the complaining dealer that this was
improper and promised to check on it. He ascertained on
checking with his service manager, Bob Dobbins, that Bill
Humphrey was the employee who had visited the other
194 NLRB No. 57
JERRY ROTH CHEVROLET, INC. 353
auto dealer's establishment the previous day. Mr. Roth also
learned on the morning of March 24 that three of his
mechanics were wearing union buttons. They ' were
Humphrey, Woolverton, and Sixta. Roth first talked to
Humphrey and then to Woolverton. Roth testified, "I felt it
was my duty as the owner to investigate; not to investigate
but to see if there was a gripe, what his chief gripe was." -
About 10 a.m. that March 24 morning, Roth approached
Woolverton who was then at work in his service stall and
asked if he could speak to him. Woolverton accompanied
Roth to the office of the service manager where Roth
engaged him in a conversation which lasted 5 to 10 minutes.
No one else was present during this conversation.
C. Woolverton 's Version of the March 24
Conversation
According to the testimony of Woolverton, Roth began
the conversation by saying, "Are you for the union," to
which Woolverton replied "yes." Roth then asked, "What
do you hope to gain," and Woolverton replied, "Better
wages, better benefits, insurance, things of that nature."
Roth said, "It won't work," and then asked, "Are you
aware of the dealer situation in the Oakland area?"
Woolverton replied that he was. Roth said that there were
many dealerships that were bankrupt and closed down and
many mechanics out of work because the Union had tried
to organize them. Roth told Woolverton that his job was
better than no job at all, like many workers were
experiencing in the Oakland area. Roth went on to say that
he could not afford to pay any more because the service
department was $10,000 in the red. According to Woolver-
ton, Roth further stated, "What more can I give, I can only
give so much"; and, Roth said further "you have been
talking with guys in the service department that are for the
Union, haven't you," and at another point, Woolverton
testified that Roth said, "I will not, negotiate; I will close the
doors before negotiating." Roth said further, according to
Woolverton, "We gave you a break by hiring you from
George Irwin Chevrolet, and then you bring their problems
with you and it is just like slapping me in the face."
Woolverton replied, "No it is not personal; I am just
fighting for something I believe in and want to see happen."
Woolverton testifies that Roth said, "He will close it down
before he negotiates and there wouldn't be any work for
anybody."
Toward the end of the conversation, according to
Woolverton, Roth said, "Did you attend that meeting on
Saturday morning, to which Woolverton replied, "I don't
believe I will answer that question; do you know that what
you are saying can be used against you." i Roth acknowl-
edged it could. Woolverton told Roth that he felt he was a
good mechanic and he would continue his good work and
that the union matter would not affect his work. Roth
replied, "Fine, that is all I want out of you." Roth told
Woolverton he knew Woolverton was a good mechanic
because Service Manager Bob Dobbins had told him.
According to Woolverton, Roth then said, "Before you
1 Woolverton testified he made this remark to Roth because at the
March 20 meeting at the union hall a paper was distributed to those
make any decisions , look into the situation more thorough-
Y,•)
Woolverton testified he had never been alone with Roth
prior to this conversation.
Woolverton quit working for the Respondent in the latter
part of June 1970 to take a job with another auto dealer.
The parting was on a friendly basis, and before leaving,
Woolverton stopped in to thank Roth for his employment
and for providing him additional schooling while in his
employ.
D. Roth's Version
Roth's version of his March 24 conversation with
Woolverton differs in some respects from Woolverton's.
Roth testifies he started the conversation with the remark,
"Evidently you are unhappy," and Woolverton replied, "I
want to make money. I want to go to college. I want to be
an instructor." Roth then said, "Well, you have been just
working for a short time. I understand you are a good
mechanic. We are giving you as much work as we possibly
can." Roth testified he noted that Woolverton was wearing
the union button, and he inquired if Woolverton was aware
of some of the Respondent's problems. He also pointed out
to Woolverton Respondent's fringe benefits, such as
insurance, Blue Cross-Blue Shield, vacations, and life
insurance and inquired of Woolverton if he was aware of
these company benefits as he had been with the Respon-
dent only 2 or 3 weeks at the time. Roth agrees that he ,did
mention the problem in Oakland where dealers have gone
out of business, and agrees that he told Woolverton the
Respondent's service department had lost $10,000 in ,the
year just concluded. Roth testified he emphasized that, the
Respondent was paying the highest percentage rate of the
West Colfax dealers.
Roth testified he did not ask Woolverton if he was for^the
Union; he assumed as much because Woolverton was
wearing the union button. Roth further denied that he said
in substance to Woolverton that he would not negotiate, he
would close the doors before negotiating.
Roth testified further that he said nothing about "closing
the doors specifically," but did state in effect that "I had
lost $10,000 in the Service Department, it is a tough
department to break even on, to beat the other high
demands when people are already griping about paying
these rates." Roth denied that he said anything about giving
Woolverton a break by hiring him from George Irwin
Chevrolet, and testified he had been unaware that
Woolverton had worked at George Irwin Chevrolet. Roth
further denied that during this conversation he asked
Woolverton if he had attended the Saturday union meeting
or any other union meeting. Roth acknowledged that at one
point during the conversation, in answer to a question, by
him, Woolverton replied, "I won't answer the question.,Do
you know that what you said can be used against you?"
Roth testified that this was in connection with "discussing
union activities, the button, the badge he was wearing."
Roth testified he told Woolverton "in no way could I
influence him one way or the other, and it was strictly his
present entitled "Fair Warning," describing conduct employees were
prohibited from doing and protected activities employees could engage in
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to make." Roth also recalls telling Woolverton,
"Well, Bob Dobbins, service manager, has informed me
you are a very capable employee." Roth testified that at the
time he conversed with Woolverton on March 24, he was
unaware of the March 18 and 19 newspaper publicity
concerning a union meeting or that there had been a union
meeting on March 20. Roth concedes that when he spoke to
Woolverton on March 24, he did not tell Woolverton that
he did not have to speak with him if he didn't want to.
Analysis and Conclusionary Findings
The Respondent, while conceding that the Respondent's
president, Gerald Roth, engaged Woolverton in a conversa-
tion concerning the Union on March 24, denies that during
this conversation Roth in effect asked Woolverton (1) are
you for the Union; (2) did you attend the Saturday union
meeting ; or (3) threatened that he would not negotiate with
the Union, he would close his doors first. Woolverton has
testified that the aforesaid interrogation and threats of
reprisal were made by Roth, and Roth denied having made
them. I credit Woolverton's testimony that the remarks
were made and do not credit Roth's denial.
Initially, it is noted that Roth made no notes of his
conversation with Woolverton whereas Woolverton on
April 1, 1971, only 1 week after the March 24 conversation,
gave an affidavit to a Board agent setting forth, among
other things, the alleged interrogation and threats made by
Roth which are in issue . The affidavit, which appears in the
record as Respondent's Exhibit 1, agrees in substance with
Woolverton's testimony at the hearing. Because Woolver-
ton's description of the March 24 conversation was set forth
in writing when the facts were fresh in his mind, his
testimony, which I find agrees with his April 1 affidavit, is
more reliable and accurate than Roth's. Additionally, it is
pointed out that Woolverton left the Respondent under
friendly conditions and feels obligated to the Respondent
for the free schooling he received while in Roth's employ.
Under these circumstances, there is little reason to believe
that Woolverton would be less than candid and objective in
relating his March 24 conversation with Roth, whereas
Roth, as is obvious, still has an interest as any part litigant,
to maintain his position of "no violation." Additionally, it is
difficult to accept Roth's testimony that he was unaware of
the newspaper publicity given on March 18 and 19 in the
Denver Post and the Rocky Mountain News to the
approaching union meeting in connection with the Union's
citywide campaign to organize the Denver area dealership
shops .2
I find, therefore, that in the course of the March 24
conversation Roth did in fact ask Woolverton if he was for
the Union,3 asked whether he attended the Saturday union
meeting, and threatened that he would not negotiate with
the Union but would close down first .4
I find that the aforesaid interrogation and threats of
2 It is also noted that this testimony by Roth that he was unaware of
this publicity appears to be inconsistent with the stipulation at the outset of
the hearing that "On or about March 24, 1971, Respondent was aware that
there was an organizational campaign going on in the Denver Area at the
various auto dealers' shops.""
3 In making this finding, I have in mind the fact that Woolverton was
wearing the union button at the time, and that Roth was aware of this fact.
reprisal by Roth to Woolverton interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act and constituted unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
Although Roth's remarks were made only to one
employee, I find nevertheless that a Board remedy, is
warranted under the circumstances. Initially, it is noted that
the conversation was carried on in a managerial locus by
the highest executive of the Respondent and not by a minor
supervisor. The conversation was carried on deliberately to
persuade and coerce Woolverton to abandon his union
adherence; and it is reasonable to presume that Roth could
foresee that his remarks, especially his threats not to
negotiate with the Union but instead to close down his
business and put the employees out of work, would be
relayed to other employees by Woolverton. The interroga-
tion employed by Roth is a common device to explore the
scope and depth of employee adherence to unionism and
carries with it the promise of later retaliation against those
who continue their union adherence, I will therefore
recommend remedial action by the Board. See Auto
Workers (Omni Spectra, Inc.) v. N.L R-B., 427 F.2d 1330,
and cases cited therein. International Woodworkers of
America v. N.LR.B., 380 F.2d 628 (C.A.D.C.); N.L.RB. v.
Marsh Supermarkets, Inc., (C.A. 7), 327 F.2d 109; Harold
Brown Co., 145 NLRB 1756; L & H Trucking, Inc., 155
NLRB 104.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 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. By interrogating an employee concerning his adher-
But it is reasonable to conclude that an employer in the course of an
argument against unionism would stress his antagonism by such an inquiry.
4 On cross-examination, Woolverton testified that when Roth said he
wouldn't negotiate with the Union, he was "very angry-very sincere-he
was red in the face." Woolverton testified on cross that Roth said, "I will
not negotiate. I will close the doors first. There won't be any work for
anybody."
JERRY ROTH CHEVROLET, INC. 355
ence to the Union and whether he attended a union
meeting, and by threatening to refuse to negotiate with the
Union and instead to close down and put the employees out
of work, the Respondent has interfered with, restrained,
and coerced its employees in violation of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 5
ORDER
Respondent, Jerry Roth Chevrolet, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
adherence and union activity.
(b) Threatening to refuse to negotiate with a union and
instead to close down and cease operations.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its place of business in Denver, Colorado,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region 27, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 27, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.?
5 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 , 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.
6 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."
7 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 27, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to refuse to negotiate with
International Association of Machinists and Aerospace
Workers and its District Lodge 86, AFL-CIO, if
selected by the employees.
WE WILL NOT threaten to close our business and put
our employees out of work rather than negotiate with
the aforesaid Union.
WE WILL NOT interrogate our employees with respect
to their union membership, activity, or adherence.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, including the Union herein, to bargain collective-
ly through a bargaining agent chosen by our employees,
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any such activities.
JERRY ROTH CHEVROLET,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive 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 directed to the Board's Office, 260
New Custom House, 721-19th Street, Denver, Colorado
80202, Telephone 303-297-3551.