Larry Faul Oldsmobile Co., Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1962

138 N.L.R.B. 697 (N.L.R.B. 1962)

LARRY FAUL OLDSMOBILE CO., INC . 697
MEMBER FANNING, dissenting:
I cannot find that an object of the Union's picketing in this case was
to force or require Bendix to assign work being performed by its
employees to members of the Union, or for that matter to local em-
ployees. In my opinion, the record establishes that the Union's object
was to force Bendix to acknowledge the applicability of the Davis-
Bacon Act to the work being performed by its employees and to pay
the wage rates required under that Act. I note that the Department
of Labor had ruled that the Davis-Bacon Act was applicable to the
work involved, which determination was ignored by the Army Signal
Corps, the Government contracting agency, and by Bendix. Whether
Bendix would have selected members of the Respondent Union rather
than its own employees to perform work under Davis-Bacon stand-
ards is, in my opinion, a matter of speculation. Certainly, any hope
the Union may have entertained that local employees, including mem-
bers of the Union, may have secured employment if Bendix complied
with the ruling of the Department of Labor does not fall into the
category of an unlawful object under Section 8(b) (4) (D).
For the foregoing reasons, I find that the dispute was not a juris-
dictional dispute within the meaning of Sections 8(b) (4) (D) and
10 (k) and I would quash the notice of hearing.
Larry Faul O ldsmobile Co., Inc. and International Vehicle
Salesmen 's Union of America (Ind.). Case No. 13-CA-4607.
September 19, 1962
DECISION AND ORDER
On May 31, 1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, and the entire record in this
138 NLRB No. 81.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modification below.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner,
except that paragraph 1(b) of the Order and the equivalent para-
graph in the notice are to be deleted.
' The Trial Examiner found that Braue's comment to Burian on November 22, that
Braue did not think the Union would help Burian any, was coercive and violative of
Section 8(a) (1). We find , on the contrary , that the comment contains no threat of re-
prisal or force or promise of benefit and is protected by Section 8(c) as an expression
of Braue's views or opinion.
INTERMEDIATE REPORT
The charge herein was served upon the Respondent on December 22, 1961, and the
instant complaint issued on February 9, 1962. Hearing was held herein on various
dates between March 28, and April 11, 1962, in Chicago, Illinois, upon the complaint
of the General Counsel and answer filed by the Respondent. The issues litigated
were whether the Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Charging Union, and Section 8(a)(1) of the Act by
interrogation and other allegedly coercive conduct. After the hearing, the Re-
spondent and the General Counsel filed briefs.
Upon the entire record 1 and my observation of the witnesses, I adopt the follow-
ing findings and conclusions:
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, with its principal place of business at Oak
Park, Illinois, is engaged in the retail sale of new and used automobiles and related
products. Its gross receipts during the year preceding the issuance of the instant
complaint exceeded $500,000, and during the same period it received from out-of-
State points goods valued in excess of $50,000. I find that Respondent is engaged
in commerce within the meaning of the Act and that it will effectuate the policies
of the Act.to assert jurisdiction herein.
II. THE LABOR ORGANIZATION
Upon the entire record, I find that International Vehicle Salesmen's Union of
America (Ind.) is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The complaint as amended at the hearing, alleges that the Respondent violated
Section 8(a) (5) and (1) of the Act by refusing to meet and bargain with the Union,
and violated Section 8(a)(1) of the Act by interrogating, threatening, and other-
wise coercing its employees
The record shows that Respondent has bargained (a) with Local 701, Interna-
tional Association of Machinists, AFL-CIO, as the representative of its mechanics,
since 1951 (b) with Local 731 of the Teamsters as the representative of its garage
attendants, at least since 1954, and (c) with Local 713 of Teamsters, as the repre-
sentative of its parts truckdrivers, since 1952. However, prior to the events involved
herein no union had attempted to organize Respondent' s salesmen.
'After the bearing Respondent moved to correct the record In certain respects. This
motion is hereby granted , in the absence of any objection thereto . The transcript of
testimony herein Is hereby ordered corrected in the following additional respects:
Page 24, line 21, change "L " to "P."; page 59, lines 24 and 25, change "organization"
to "resolution"; page 236, line 14, change "with Peg" to "effect"; page 252, line 13,
strike "not" before "willing"; page 306, line 4, change "third" to "first"; page 379,
lines 5 and 6, change "when he was In the" to "before there was any."
LARRY PAUL OLDSMOBILE CO., INC. 699
A campaign to organize automobile salesmen in the Chicago area was launched
sometime in 1961 by several unions, including the Charging Union. In September
1961,2 Faul, Respondent's president, attended a meeting of the Chicago Automobile
Trade Association, of which he was a member. At that meeting, Turner, a local
attorney, delivered an address, in which he discussed the current union campaign
to organize automobile salesmen, and reported that 12 to 14 automobile dealers
were,already affected. The president of the Association then made a motion that
each member of the Association contribute $200 to a fund to "combat the organiza-
tion of automobile salesmen" 3 by unions. Faul voted in favor of the motion, which
was carried, and shortly thereafter made his contribution to the fund.
On November 17 and 18 all six of Respondent's salesmen signed cards authorizing
the Union to represent them in collective bargaining. On November 21 Respondent
received a letter from Gore, an attorney, representing that he was counsel for the
Union, advising that a majority of Respondent's salesmen had signed cards authoriz-
ing the Union to bargain for them, offering to submit the cards to a mutually agree-
able third party for verification of the signatures thereon, and requesting a meeting
for this purpose and for bargaining on a date between November 27 and Decem-
ber 8, to be selected by the Respondent.
This letter was opened in the absence of Faul'by his son, Lawrence J. Faul,4
who supervised the Respondent's new-car salesmen, and acted for his father during
the latter's frequent business trips. After asking two salesmen, Burian and Kush,
whether they had joined the Union, the younger Faul, decided to refer the letter
to his father, who returned to town the following day. On November 23 the
younger Faul apprised his father of the letter and, on November 24, Faul consulted
Cleary, an official of the Chicago Automobile Trade Association, who recommended
that Faul retain as counsel, Turner, the attorney who had addressed the Association
meeting in September, as noted above. Faul promptly called Turner's office, and,
upon being advised that he was out of town, left a message for him to call Faul upon
his return. On November 27 Cleary mailed to Turner a copy of the November 20
letter from Gore, with a covering letter to the effect that the enclosure was a copy
of a letter received by Faul. This letter was referred, in Turner's absence, to
Grabemann, one of Turner's associates, who assumed that it had been submitted by
Cleary merely for informational purposes, and placed it in his files.
On December 9 Faul received another letter from Gore, which (1) in effect
charged that Faul had committed an unfair labor practice by ignoring the Novem-
ber 20 request for bargaining; (2) transmitted the six union authorization cards signed
by the salesman; and (3) requested a bargaining meeting on December 15.
Upon ieceiving this letter, Faul examined the enclosed cards and was satisfied
that the signatures were authentic, except in the case of Zeeh, one of the used-car
salesmen. Faul asked Braue, the used-car manager and an admitted supervisor, to
verify Zeeh's signature. Braue ascertained from Zeeh that he had signed the card
but regretted having done so. Either on December 9 (according to Faul) or
about a week later (according to Burian), Faul called Burian into his office and,
with the cards in full view on Faul's desk, asked Burian what had happened Burian
explained that the salesmen had become dissatisfied because of certain changes in
their working conditions effected by the younger Faul and asserted that the men
would not want a union if Faul ran the business, himself.
After an unsuccessful effort to contact Turner on December 9, Faul finally spoke
to Turner on December 11. The latter disclaimed any knowledge of Faul's message
of November 24 and, upon learning of Gore's several letters, stated that the matter
would be handled by Grabemann, who, in fact, represented Faul in the instant
proceding.
After consulting with Grabemann, Faul on December 12, wrote Gore as follows:
I do not believe that you represent a majority of my salesmen. Accordingly,
I see no reason for a meeting.
There has in fact been no meeting between Respondent and the Union.
B. Discussion
1. The interrogation
It is not disputed that on November 21, the younger Faul interrogated Burian and
Kush about their union affiliation, that, on December 9 Braue similarly questioned
2 All events hereinafter related occurred in 1961, unless otherwise stated.
S Quoted from Paul's testimony.
' All references hereinafter to "Faul" denote the elder Paul.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zeeh, and that Faul, himself, in December called Burian into his office, with the
authorization cards in full view on his desk, and in this setting elicited from Burian
an explanation of the salesmen's resort to the Union. Bunan testified variously
that this explanation was elicited by Faul's asking him, "What is this?" or "What
happened?" Faul did not deny this testimony as to the inception of his interview
with Burian and corroborated Burian's version as to some other aspects of the
interview.
While the younger Faul's interrogation of Burian and Kush and Brace's interroga-
tion of Zeeh had the ostensible purpose of verifying the Union's claim of majority
status, interrogation for such purpose has been held not to be privileged unless
accompanied by assurances against reprisals .5 There were no such assurances here.
Moreover, interrogation for that purpose would seem to be difficult to justify here,
in any event, in view of the fact that the Union had offered Respondent a means of
verifying the signatures on the cards which would have obviated the need for
interrogation, namely, comparison of such signatures by an acceptable third party
with signatures of the salesmen in Respondent's files.
Finally, the only apparent purpose of the second interrogation of Burian-by
Faul, himself-was to probe into the reasons for the salesmen's adherence to the
Union, and not to ascertain whether Burian had signed a union card.
Under all the circumstances, I find that by all the foregoing acts of interrogation,
the Respondent violated Section 8(a)( I) of the Act.
2. The threat
The complaint, as amended at the meeting, alleged that the Respondent violated
Section 8(a)(1) of the Act by threatening its employees "with respect to their union
membership and activities."
The only evidence concerning any such threat was testimony by Redden, a used-
car salesman, that late in November, a few days before he left the Respondent's
employ, Faul, in the context of a discussion of the union activity of the salesmen,
declared that "he couldn't run his own business and he might as well throw the
place up for grabs." Faul admitted having mentioned the union campaign in a
conversation with Redden late in November, after he had read the November 20
letter, but Faul's version of the conversation contains no reference to the foregoing
threat.
Although Redden's credibility was impaired somewhat by the fact that he was
discharged (for cause) by the Respondent, this consideration is offset by the fact
that Redden did not testify voluntarily but appeared under subpena. Moreover,
Faul's denial of the foregoing threat was not direct but merely inferential. For the
foregoing reasons, as well as demeanor considerations, and because I find Faul to
be unreliable in other matters (see below), I credit Redden and find that late in
November, after having read the November 20 letter, Faul threatened in effect to
dispose of his business because of the salesmen's union activity, and that the Respond-
ent thereby violated Section 8 (a) (1) of the Act.
3. Other coercive conduct
The amended complaint alleges that Braue in November and December 1961,
coerced employees in violation of Section 8 (a) (1) of the Act.
In support of this allegation, Burian testified that Braue on three occasions was
present during a discussion of the Union among the salesmen and on each occasion
disparaged the efficacy of collective action by the salesmen. The first of these
occasions was on November 22, the day after Respondent received the Novem-
ber 20 letter, and while the salesmen were discussing their working conditions. Braue,
according to Burian, commented, "I don't think the Union will help you any." A
day or so later, Braue, according to Burian, made a similar remark after the sales-
men expressed the view in Braue's presence that, if the salesmen organized, the
dealers would obtain higher prices for their cars. However, Burian admitted that
Braue also stated in this context that he did not think that a union could control
dealers' prices.
The third occasion was in the latter part of December, but Burian admitted that
Braue on that occasion merely questioned whether a union could force automobile
dealers other than the Respondent to close on Sundays.6
e Blue Flash Express, Inc , 109 NLRB 951; Burke Golf Eq mpment Corp, 127 NLRB
241, 245.
O Respondent had already adopted a practice of closing on Sundays
LARRY FAUL OLDSMOBILE CO., INC. 701
Braue admitted the last incident, but denied the others. Burian was at the time
of the hearing still in Respondent's employ and professed no longer to be interested
in the Union. He was, moreover, indebted to Respondent for various personal
favors, and had no discernible reason to testify falsely against Respondent's interest.
In addition I was favorably impressed by the frank and spontaneous nature of his
testimony. Braue's testimony on the other hand was tainted by self-interest as it
was calculated to exonerate him of any responsibility for implicating his employer
in an unfair labor practice. Accordingly, I credit Burian and find that Braue made
the statements attributed to him by Burian on all three occasions. However, on
the last two occasions, it is clear from the context that the disparagement of collec-
tive action was merely a privileged expression of opinion and not coercive, as the
matters under discussion were (1) Sunday closing by dealers other than the Respond-
ent and (2) dealers' selling prices, neither of which was a proper subject for
collective bargaining as between the Union and the Respondent. A statement by
a respondent tending to impress on its employees the futility of collective action
is coercive only if it reflects the respondent's determination not to deal with a union
or to make any substantial concessions to it. That clearly was not true of Braue's
remarks on the two occasions here under consideration.
However, on the first occasion noted above, Braue's disparagement of the efficacy
of collective action was made in the context of a discussion of grievances relating
to working conditions, and only a day after the receipt of the Union's initial request
for bargaining, I find that, in view of the these circumstances, his remark was rea-
sonably calculated to discourage union activity on the part of the salesmen. Even
though couched in terms of an expression of opinion, it was likely to be construed
as reflecting opposition by management to dealing with the Union or making any
concession to it. I find therefore that by the foregoing remark of Braue's on
November 22, the Respondent violated Section 8(a) (1) of the Act.7
Other alleged coercive conduct, consisting of promises of benefits to induce the
salesmen to defect from the Union, will be dealt with below in connection with
the discussion of the alleged refusal to bargain.
4. The refusal to bargain
a. The appropriate unit
It is not disputed, and I find, that all new- and used-car salesmen employed by
Respondent at its Oak Park, Illinois, facility, excluding all office clerical and plant
clerical employees, auto mechanics, semiskilled help, parts department employees,
professional employees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for collective bargaining within the meaning of Section 9(b) of the
Act.
b. The Union's majority status
On November 17 and 18 Respondent had in its employ two used-car salesmen
(Redden and Zeeh) and four new-car salesmen (Burian, Kush, Wagner, and Wells).
As already noted, all six signed union authorization cards on those dates. Even if
one omits from consideration Redden, who, on November 1, had been given notice
of discharge effective December 1, there could be no question that a majority of
the salesmen had designated the Union as of November 21, when Respondent re-
ceived the Union's first bargaining request. Moreover, for reasons stated below,
I find that on December 12, when Faul rejected the Union's bargaining request, a
majority of the salesmen still adhered to the Union.
c. The refusal to bargain
Faul asserted that on November 24, when the Union's letter first came to his atten-
tion, he in good faith doubted the Union's majority. (That letter, as already noted,
contained an assertion by Gore of the Union's majority status, and an offer to prove
this claim by submitting the authorization cards to a third party.) The question re-
mains why Faul did not communicate this doubt to Gore at that time or otherwise
7 However, I find no violation in a query by the younger Faul of Union Steward Wells
late in December as to what the Union could do for Wells. The remark occurred in the
course of a conversation about auto salesmen 's unions initiated by Wells. Nor do I deem
it necessary to resolve conflicting testimony concerning a conversation between Wells
and Braue in January 1962, in the course of which Braue allegedly criticized Wells for
acting as union steward. Any finding as to that incident would be cumulative, in any
event, and would not affect the remedy herein.
702 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
reply to the November 20 letter. Faul explained at the hearing that, since the letter
was signed by an attorney, he deemed it advisable to retain counsel before taking
any further action. Reference has already been made to Faul's unsuccessful efforts
on November 24 to contact Turner, and the failure of Turner's associate, Grabe-
mann to grasp the significance of Cleary's communication of November 27. Did
these circumstances excuse the failure of Faul to reply to Gore's first letter? If Faul
in fact entertained a good-faith doubt of the Union's majority status, he was under
no obligation to meet with the Union, and hence was under no duty to reply to the
November 20 letter. If he did not entertain such a doubt, it is arguable that he was
still entitled to delay replying for a reasonable time until he could retain counsel.
However, I do not deem it necessary to resolve this point, as I find, in any event,
for reasons set forth below, that Respondent unlawfully refused to bargain, on
December 12. On that date, as already stated, Faul, on advice of counsel, wrote
Gore that he saw no reason to meet, as he doubted the Union's majority status.
However, by that time Faul had received the six signed cards and had satisfied him-
self, by his own admission, that the signatures were authentic. Why did he, as he
claims, still doubt the Union's majority status? Paul offered the following answers
at the hearing:
(1) On December 9, after questioning Zeeh, Braue reported to Faul that Zeeh
had renounced the Union.
(2) Also on December 9, Burian assured Faul that he would not want the Union
if Faul would personally manage the agency.
(3) By December 9, Redden had been replaced by Auwerda, and another sales-
man, Kennedy, had been hired, neither of whom had signed a union card (so far
as appears from the record).
Faul testified that he inferred from the foregoing that the Union, on December 9,
could not have more than three adherents (Wells, Kush, and Wagner), and those
three did not constitute a majority of the unit (which on December 9 consisted of
seven salesmen ). It was for this reason, according to Faul, that he persisted in his
doubt of the Union's majority status and refused to meet with Gore.
It may be observed here, parenthetically, that to negate any union animus on the
part of Faul, and as proof of his good faith, Respondent points to his long history
of harmonious collective bargaining with the three unions representing his employees
other than the salesmen. However, I deem it significant that in this respect Faul's
action coincided with the policy of the Chicago Automobile Trade Association of
which he was a member. The three unions, before approaching Faul, had already
negotiated contracts with that Association, and all that Faul did was to adopt the
applicable Association contract, after he had satisfied himself that the union in each
case represented a majority of his employees in the appropriate unit. However, in
the case of the salesmen, the Association's policy was one of frank opposition to their
organization by any union, even to the extent of proposing that its members con-
tribute to a fund to combat union activity, and it is admitted that Faul voted for
this proposal in September 1961, and contributed to the fund. Faul sought to mini-
mize the significance of this action by testifying, when called as a witness by Re-
spondent, that the proposal for an antiunion fund was not submitted for separate
vote, but was part of a joint motion, the other question submitted being whether
the Association members favored a Sunday closing law.8 Respondent failed to ex-
plain why two such unrelated questions should be incorporated in a single motion.
In any event, assuming the veracity of Faul's testimony on this point, and that he
was, as he testified, influenced to vote for the motion primarily because of the Sunday
closing issue, the fact remains that opposition to the organization of salesmen
represented the Association's policy, and it would have been consistent with Faul's
entire labor relations pattern to follow Association policy in this regard, even if he
had had no personal feeling against organization of his salesmen. The record shows,
moreover, that he did have such a feeling. Reference has already been made to
his threat to Redden that he would dispose of his business if his salesmen were
organized. Besides, Faul, himself, admitted that his pride was hurt by the Union's
claim to represent his salesmen, to the same extent (as he put it) as if a member of
his family had been found guilty of a misdemeanor. Furthermore, Faul admitted
that in his interview with Burian, discussed in more detail below, he reproached
Burian for not coming to Faul with his grievances before casting his lot with the
Union, and recalled to Burian Faul's many past favors. It is clear from all the fore-
goine circumstances that the organization of Faul's salesmen was not a matter of
indifference to him, and that Faul's own sentiments, as well as the policy of his
8 Faul, however, did not mention this joint aspect of the motion when he first testified
about the motion under Rule 43 B, as witness for the General Counsel.
LARRY FAUL OLDSMOBILE CO., INC. 703
Association, to which he had conformed in the past in labor relations matters, were
inimical to unionization of the salesmen.
Returning to Faul's alleged basis for doubting the Union's majority after receiving
the December 8 letter from Gore, and leaving aside the matter of Braue's unlawful
interrogation of Zeeh at Faul's instigation, I find that Faul's good faith is not demon-
strated, but is, on the contrary, seriously impugned by the Burian incident. Even
if it be assumed that it occurred on December 9, as Faul testified, this incident
resolves itself essentially into (1) unlawful interrogation of Burian by Faul as to his
reasons for signing the union card, and (2) direct bargaining with Burian about his
grievances , concluding with a promise to take favorable action on Burian 's demands
for improved working conditions.
Thus, Burian testified that, after Faul confronted him with the six union cards and
a request for an explanation, Burian launched into a recital of his grievances, in-
eluding the charge that the younger Faul had changed the salesmen's work hours
so that they were required to work a 12-hour day, and that the younger Faul was
diverting prospective buyers from the salesmen to himself; that Bunan assured
Faul that the salesmen would not want a union if Faul would personally manage
the business on ,the same basis as he formerly did, without any interference by the
younger Faul; that Faul proposed that Burian talk to the other salesmen and submit
to Faul a written statement of their grievances; and that Faul concluded the inter-
view with the promise that he would "straighten it out," and see what he could
do to satisfy the salesmen, and specifically assured Burian that he would change
Burian's work hours to suit him.
Faul's version of this interview was somewhat different. He agreed that Burian
complained about working conditions under the younger Faul, but Faul did not
mention in his testimony any solicitation of Burian to furnish a list of grievances, or
any of the other matters cited by Burian, except that Faul admitted, that the con-
versation concluded with the following colloquy:
He said, "I amtelling you as far as I am concerned if you ran the business
I would never want a Union."
I said, "That is okay. That is good enough for me."
Even if one accepts Faul's version it is clear that there was a discussion of Burian's
grievances, an offer by Burian to renounce the Union if Faul personally managed
the business, and at least an implied promise by Faul that he would do so. This
alone would constitute direct bargaining and a promise of benefit to induce Burian
to defect from the Union. The same conclusion would follow, a fortiori, if one
accepts, in addition, Burian's testimony that Faul solicited a list of the salesmen's
grievances with a promise that he would make an effort to adjust them, and promised
to arrange Burian's work hours to suit him.
Faul did not directly contradict Bunan on these points. I have already found
Burian a credible witness, where his testimony conflicted with Braue's. Here his
testimony is not only contrary to the interest of Respondent, but also in derogation
of that of Faul, himself, to whom Burian owed his job as well as certain personal
favors. There is therefore even more reason to credit Burian here, and I do credit
him.
The foregoing conduct of Faul in bargaining directly with Burian and promising to
satisfy his complaints and those of the other salesmen was clearly designed to wean
Burian and the others away from, and to undermine, the Union. Such conduct
was incompatible with a good-faith doubt of the Union's majority status, and war-
rants the inference that Faul refused to recognize the Union, not because of any
such doubt, but in order to gain time in which to undermine the Union.9
The basis for this finding is even more cogent if one credits Burian's testimony,
as I do, that his interview with Faul occurred, not (as Faul claimed) before Faul's
rejection on December 12, of the Union's bargaining request, but several days there-
after. It follows that Burian's renunciation of the Union after December 12, could
not possibly have caused Faul to doubt the Union's majority on or before that date.
Since, on December 12, Faul was, as he admitted, satisfied as to the authenticity
of the signatures on the union cards of five salesmen still in Respondent's employ,
and since he had no reason on that date to believe that any of the five, other than
Zeeh, did not still want the Union to represent him,,it follows that any belief that
9 Joy Salk Mills, Inc, 85 NLRB 1263 Since Burian's defection from the Union, even if
it occurred before December 12 (see below), was induced by Faun's unfair labor practices,
such defection could not affect the Union's majority status as of December 12; and the
Union, without counting Zeeh, would on that date have had four cards out of seven
employees.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faul may have entertained on December 12, that the Union did not represent at
least four out of his seven salesmen could have had no tangible basis.
In view of all the foregoing circumstances, I do not credit Faul's self-serving claim
of a good-faith doubt, and find that, by rejecting the Union's demand for bar-
gaining, the Respondent on December 12 violated Section 8(a)(5) and (1) of the
Act. I find also that the Respondent additionally violated Section 8(a)(5) and (1)
by undertaking to deal directly with Burian and with the other salesmen through
him, in derogation of their statutory representative.10
Finally, I find that by Faul's promises to Burian of more favorable treatment of
Burian and the other salesmen, to induce their defection from the Union, the Re-
spondent violated Section 8 (a)( I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described 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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a) (1), and (5) of
the Act, it will be recommended that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit. Accordingly, I
shall recommend that the Respondent be ordered to bargain upon request, with the
Union as the exclusive representative of the employees in the appropriate unit.
CONCLUSIONS OF LAW
1. All Respondent's new- and used-car salesmen, excluding office and plant clerks,
auto mechanics, semiskilled help, parts department employees, professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
2. At all times material the Union has been and still is the exclusive representa-
tive of all the employees in the aforesaid unit for the purposes of collective bargain-
ing, within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization as the
exclusive representative of its employees in an appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) and (1) of the Act.
4. By disparaging the efficacy of concerted action to improve the working con-
ditions of its salesmen, by interrogation, threat of liquidation, and promises of
benefits to induce its salesmen to defect from the Union, the Respondent has inter-
ferred with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Larry Faul Oldsmobile Co.,
Inc., Oak Park, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages, hours of employment,
or other conditions of employment with International Vehicle Salesmen's Union of
America (Ind.), as the exclusive representative of all its new and used car salesmen,
excluding auto mechanics, semiskilled help, parts department employees, office and
plant clericals, professional employees, watchmen, guards, and supervisors as defined
in the Act.
(b) Disparaging the efficacy of concerted action to improve the working condi-
tions of its employees.
io Medo Photo Supply Corporation v. N.L.R.B., 321 U . S. 678.
LARRY PAUL OLDSMOBILE CO., INC . 705
(c) Threatening employees that it will liquidate its operations rather than deal
with their bargaining representative, and promising them benefits to induce them to
abandon their union activities.
(d) Coercively interrogating employees concerning their union activities.
(e) In any like or related manner, interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
the above-named Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such right is
affected by the provisos in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with International Vehicle Salesmen's
Union of America (Ind.), as the exclusive representative of all new and used car
salesmen of the Respondent, excluding office and plant clericals, auto mechanics,
semiskilled help, parts department employees, professional employees, guards, and
supervisors as defined in the Act, with respect to rates of pay, wages, hours of em-
ployment or other conditions of employment, and if an understanding is reached,
embody such understanding in a signed written agreement.
(b) Post at its place of business in Oak Park, Illinois, copies of the notice attached
hereto, marked "Appendix." li Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for a period of at least 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Thirteenth Region in writing within 20
days from the date of receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith.ia
n In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
12 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with International Vehicle Salesmen 's Union
of America (Ind.), as the exclusive representative of all employees in the
bargaining unit described below in respect to rates of pay, wages, hours of
employment, or other conditions of employment, and, if an understanding is
reached, embody it in a signed agreement. The bargaining unit is:
All our new- and used-car salesmen, excluding office and plant clericals,
automobile mechanics, semiskilled help, parts department employees, pro-
fessional employees, guards, and supervisors as defined in the Act.
WE WILL NOT disparage the efficacy of concerted action to improve the work-
ing conditions of our employees.
WE WILL NOT threaten that we will liquidate our operations rather than deal
with a union, or coercively interrogate our employees about their union activities
or promise them benefits to induce them to give up their union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join
or assist International Vehicle Salesmen's Union of America (Ind.), or any
other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected
by the provisos in Section 8 (a) (3) of the Act.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of International Vehicle Salesmen's Union of America (Ind ),
or any other labor organization.
LARRY FAUL OLDSMOBILE CO., INC.,
Employer
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central
6-9660, if they have any question concerning this notice or compliance with its
provisions.
Citizens Hotel Company d/b/a Hotel Texas and Hotel and
Motel Cooks, Waiters, Waitresses and Bartenders Union Local
748, affiliated with the Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO. Case No. 16-CA-
1591. September 19, 1962
DECISION AND ORDER
On June 28, 1962, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom,
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
1 In asserting jurisdiction, we rely only on the facts in the record, as stipulated to at
the hearing, which establish that the Respondent is engaged in commerce within the
meaning of the Act, and that its operations satisfy the Board's standards for assertion
of jurisdiction over hotels See also Citizen's Hotel Company, d/b/a Texas Hotel, 131
NLRB 834.
138 NLRB No. 82.