Mike Persia Chevrolet Co., Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1953

107 N.L.R.B. 377 (N.L.R.B. 1953)

MIKE PERSIA CHEVROLET CO., INC. 377
[ Text of Direction of Election omitted from publication in this
volume.]
Member Murdock took no part in the consideration of the
above Decision , Order, and Direction of Election.
MIKE PERSIA CHEVROLET CO., INC. and GENERAL TRUCK
DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
LOCAL NO. 270, affiliated with the INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL. Cases Nos.
15-CA-554 and 15-RC-822. December 17, 1953
DECISION AND ORDER
On July 13, 1953, Trial Examiner George A. Downing 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 copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the Respondent
and the General Counsel each filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except
to the extent that they are inconsistent herewith.
1. We agree with the Trial Examiner that the Respondent
committed unfair labor practices in violation of Section 8 (a)
(1) of the Act, as specified in the Intermediate Report. Unlike
the Trial Examiner, however, we find within the privilege of
Section 8 (c) and not violative of the Act, the statement in the
Respondent ' s preelection letter sent to the salesmen , and also
read to the salesmen by President Persia the day before
the election, that "Whatever the Union has promised, it can
get you nowhere until negotiations are completed and a con-
tract signed with the Company" (emphasis in original).
2. We agree with the Trial Examiner that the Respondent
did not violate Section 8 (a) (3) of the Act, either in discharg-
ing, or in refusing to rehire, complainants Garrett and Bynum.
As more fully described in the Intermediate Report, both
these individuals, employed by the Respondent as salesmen,
admittedly were involved in the sale of a used car outside the
Respondent 's organization , in violation of the known company
rule against "outside sales." They were discharged for
107 NLRB No 82
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in this outside transaction after the Respondent had
investigated and ascertained the facts in the matter. The
General Counsel's case, in substance, is predicated on the
ground that the outside sale took place at a time when the
Respondent condoned such sales because there was during
that period a shortage of new cars available for sale as a
result of the then current steel strike. The General Counsel
contends alternatively that even if it is found that the Re-
spondent, when it discharged Garrett and Bynum, believed in
good faith that their outside transaction took place after the
car shortage period, that the complainants were nevertheless
denied reinstatement discriminatorily a week after the dis-
charge when they apprised the Respondent of the fact that the
outside sale was made within the car shortage period. The
Respondent, for its part, asserts that it never condoned out-
side sales. The Trial Examiner, without specifically passing
upon the issue of condonation, found, among other things, that
the Respondent had no actual knowledge of outside sales
during the car shortage period, that is, other than the trans-
action of Garrett and Bynum. We conclude, on the basis of
the credibility -and fact findings of the Trial Examiner and on
all the record evidence, that the General Counsel failed to
establish that the Respondent condoned outside sales at any
time. We find therefore that Garrett and Bynum were justifi-
ably discharged and refused reinstatement because of their
breach of a strict company rule.
3. We do not adopt the Trial Examiner's finding that the
Respondent violated Section 8 (a) (5) of the Act. We cannot
agree with him that the Union's sole bargaining request of the
Respondent on August 22, 1952, insofar as it concerned the
specification of an appropriate unit in which the Union repre-
sented a majority, was proper and effective to obligate the
Respondent under the Act to bargain with the Union. The
essential facts are related below.
On the morning of August 22, the Respondent received a
letter from the Union, stating in pertinent part:
Please accept this letter as our official notice to your
Company that we are the duly representatives [sic] of
your Automobile Salesmen or Demonstrators, who are
employed in your New Orleans, La., office.
We therefore, request an appointment with your repre-
sentative, with full power to act in your behalf, at the
earliest convenience to bargain for wages and working
conditions for your employees.
The identical letter was simultaneously sent by the Union to
the 2 other new-car Chevrolet dealers in the city. On August
22, the Union filed with the Board a petition for certification
of representatives for a 3-employer unit of the "Automobile-
Salesmen or Demonstrators" employed by the 3 new-car
Chevrolet dealers in New Orleans, Louisiana, including the
Respondent. In the afternoon of August 22, the Respondent
MIKE PERSIA CHEVROLET CO., INC. 379
received from the Board a copy of a Board letter addressed
to the Union requesting certain data of the Union with respect
to its petition and indicating in the caption of the letter a
single case number together with the names of the 3 Chevrolet
dealers. The Respondent referred the matter of the Union's
request to its attorneys. On August 26, the Respondnet was
served by the Board with a copy of the Union's petition for
the 3-employer unit. On September 11, the Union filed amended
petitions for 3 single-employer units of the 3 Chevrolet
dealers. As of September 25, at the beginning of the consoli-
dated hearing on the 3 petitions, the Union apparently adhering
in part to its request for a 3-employer unit, took an alterna-
tive position for a 3-employer unit, or for the 3 single-
employer units described in its amended petitions. Later in
the hearing, however, the Union stipulated that a separate
unit for each of the 3 dealers was appropriate. The Respondent
never questioned the appropriateness of the single - employer
unit but did object to the 3-employer unit. The Board in its
decision found appropriate separate employer units of the
salesmen for each of the 3 dealers.'
The evidence further shows (a) that on and after August 22,
when the Respondent received the Union's-bargaining request,
President Persia was informed by one of the active union
adherents in his employ that the Union was seeking to repre-
sent a joint group of the salesmen of the 3 Chevrolet dealers,
so that the salesmen could be assured of uniform commission
rates in the city; (b) that on or about August 25, in a proposed
joint contract drawn up on behalf of the Union, a 3-employer
unit was specified; and (c) that shortly after August Z2, a
Board agent advised the Respondent by telephone of the filing
of the Union's petition for a 3-employer unit, and thereafter
informal conferences were held at the Board offices on this
petition, before it was amended. It was not established, nor
contended, that the Union when it made its bargaining request
on August 22 represented a majority of the salesmen in the
3-employer unit.
On these facts, we conclude, contrary to the Trial Exami-
ner, that the Union's bargaining request was defective. The
Trial Examiner based his finding upon a consideration of the
request within the limited language of the Union's letter to
the Respondent of August 22. The letter, to be sure, contains
no explicit showing of a demand for bargaining with respect
to a 3-employer unit. But vital facts existing outside the
letter and known to the Respondent must be taken into account
here in ascertaining the Union's unit demand. Among other
things, there is the fact of the Union's petition for a 3-
employer unit formally on file with the Board as of August 22.
These facts strongly indicated to the Respondent that the
Union was in actuality seeking a 3-employer unit, rather than
'Mike Persia Chevrolet Company, Case No. 15-RC-822, issued November 6, 1952 (not
reported in printed volumes of Board Decisions).
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit limited to the salesmen of Persia . We cannot find, as
did the Trial Examiner, that the Union ' s letter was so rigidly
worded as to preclude such a construction by the Respondent.
In these circumstances , we hold that , at the least , the Re-
spondent was justifiably confused as to the scope of the unit
requested by the Union , and that, in such a situation, it was
not incumbent upon the Respondent to seek clarification from
the Union in the matter .' But wholly apart from the Respond-
ent's own interpretation of the Union ' s demand, in view of the
unquestionable fact that , from August 22 at least until it
amended its petition on September 11, the Union was seeking
only a 3-employer unit, no other construction of the Union's
demand is reasonably permissible than that the demand con-
templated only a 3-employer unit . Such a unit was not found
appropriate by the Board, and there is no evidence that the
Union enjoyed a majority status in suchaunit . More precisely,
however, we must hold that the Union never properly made a
bargaining demand for the single - employer unit of the Re-
spondent ' s salesmen , the specific unit found appropriate by
the Board . Accordingly , as we do not find that the requisite
bargaining request was made of the Respondent in an appro-
priate unit of employees as to whom the Union represented
a majority , we shall dismiss the complaint insofar as it
alleges a violation of Section 8 (a) (5) of the Act.
4. The Trial Examiner set aside the election , without
specifically ruling upon the merits of the Union ' s objections
to the election ; he relied upon his finding of a refusal-to-
bargain violation and on a theory that the entire election
proceeding was'a nullity . The results of the election , conducted
by the Board on November 20, 1952, showed that the Union
failed to receive a majority of the valid votes cast. The Union
filed objections alleging that certain coercive conduct by the
Respondent preceding the election prevented the expression
of a free choice by the employees . The Regional Director,
after an investigation , issued his report finding that the
objections raised substantial and material issues, and recom-
mending that a hearing be held in the matter . Thereafter,
hearing was held, as ordered by the Board , in the consolidated
representation and complaint proceeding now before us. We
have considered , in the light of all the circumstances, the
question of the disposition of the election results and the
objections to the election , the merits of which were not passed
upon by the Trial Examiner. As more than a year will have
elapsed from the time of the election to the end of the period
required for posting of the notices by the Respondent respect-
ing the unfair labor practices found herein , we find that no
2Cf., e.g., The C . L. Bailey Grocery Co., 100 NLRB 576; Parker Brothers , 101 NLRB
872; Carey Lumber Co., 102 NLRB 406.
MIKE PERSIA CHEVROLET CO., INC. 381
useful purpose will be served at this time in deciding the
issue of the Union's objections. Accordingly, we shall dis-
miss the representation petition without prejudice to the
filing of a new petition.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Mike
Persia Chevrolet Co., Inc., New Orleans, Louisiana, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their unionmem-
bership, sentiments, and activities; promising benefits for
refraining from the union activities; threatening reprisals for
engaging in union activites ; stating that it will not sign a con-
tract with the Union ; engaging in or pretending to engage in
surveillance of union activities, and attempting to procure
reports on and engage in surveillance of union activities by
employees.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
General Truck Drivers, Chauffeurs, Warehousemen and
Helpers, Local No. 270, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, AFL, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purposes of collective bargaining and other mutual aid or
protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action:
(a) Post at its office and showroom at New Orleans, Loui-
siana, copies of the notice attached hereto as Appendix.'
Copies of said notice to be furnished by the Regional Director
for the Fifteenth Region shall, after being signed by Respond-
ent's representative, be posted by Respondent immediately
upon receipt thereof and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all
places 'where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
3In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
137593 0 - 55 - 25
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Decision
and Order, what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint insofar as it
alleges violations of Section 8 (a) (3) and (5) of the Act, be,
and it hereby is, dismissed.
IT IS FURTHER ORDERED, that the petition in Case No.
15-RC-822 be, and it hereby is, dismissed, without prejudice.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning
their union membership, sentiments , and activities;
promise benefits for refraining from union activities;
threaten reprisals for engaging in union activities; state
that we will not sign a contract with the union; engage in,
or pretend to engage in, surveillance of union activities,
or attempt to procure reports on and engage in surveil-
lance of union activities by employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist General Truck Drivers, Chauf-
feurs, Warehousemen and Helpers Local No. 270, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL,
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 and 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 an agree-
ment requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become, remain , or refrain
from becoming or remaining , members of General Truck
Drivers, Chauffeurs , Warehousemen and Helpers Local No.
270, affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, AFL, or
any other labor organization , except to the extent that this
MIKE PERSIA CHEVROLET CO., INC. 383
right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
MIKE PERSIA CHEVROLET 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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These cases, having been consolidated by order of the Regional Director of the National
Labor Relations Board on March 13, 1953, and a complaint having been issued by the General
Counsel under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136,
a hearing was held in New Orleans, Louisiana, from April 27 to May 2, 1953, inclusive,
pursuant to due notice. All parties' were represented by counsel or by representatives and
were afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally, and to file briefs and proposed findings and
conclusions. Briefs have been filed by the General Counsel and the Respondent.
The representation proceeding, under Section 9 (c) of the Act, involves objections filed by
the Union to an election held on November 20, 1952, which objections were found by the
Regional Director, after an investigation, to raise material issues affecting the outcome of
the election, and on which the Board, by order of March 5, 1953, directed a hearing. How-
ever, the General Counsel represented at the hearing that the election issues had been
included in the complaint in the Section 10 (b) proceeding among the unfair labor practices
with which Respondent is there charged.
That complaint, based on charges duly filed and served, alleged in substance2 that Re-
spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5)
of the Act by: (a) Discharging William Garrett and Bruce Bynum on October 21, and there-
after refusing to reinstate them, because of their union membership and activities; (b) re-
fusing on or about August 21, and since, to bargain with the Union, which was alleged to be
the majority representative of Respondent's employees in an appropriate unit; and (c) engag-
ing in various specified acts of interference, restraint, and coercion, such as interrogation,
threats, promises of benefit, surveillance, etc.
Respondent's answer, filed on March 26, 1953, admitted certain allegations regarding
the nature of its business and as to the appropriateness of the unit, but denied the unfair
labor practices.
Upon the entire record, and from his observation of the witnesses, the undersigned makes
the following:
'The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board The above-
named Respondent is referred to as Respondent and as the Company and the charging Union
as the Union.
2 The summary of the pleadings includes amendments made at the hearing All events
occurred in 1952, unless otherwise stated.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Louisiana corporation, engaged at New Orleans in the sale and servicing
of automotive vehicles and parts. It is a franchise dealer, holding a franchise contract from
the Chevrolet Motor Company, a division of General Motors. During the year 1952, Re-
spondent received new cars, trucks, and auto parts valued in excess of $1,000,000, from
various assembly plants of General Motors Corporation located outside the State of Loui-
siana. During the same year, it sold at wholesale, fleet units valued in excess of $50,000
to customers (including the city of New Orleans) who bought for resale or for use in their
businesses.
Respondent concedes, and it is found, that it is engaged in interstate commerce within
the meaning of the Act. See Decision and Direction of Election, Case No. 15-RC-822.
II. THE LABOR ORGANIZATION INVOLVED
'Ilse Union is a labor organization which admits to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; synopsis of main events and issues
Respondent is 1 of 3 Chevrolet dealers in New Orleans. Its supervisors, so far as mate-
rial to the issues, were Mike Persia, president, Richard Monroe, sales manager, Felix
Oubre, used-car manager, and Peter Rizzo, truck manager.3
Respondent normally employed from 15 to 20 salesmen, all of whom participated, without
specialization for the most part, in selling new cars and trucks and used cars.4 and who
were compensated solely on a commission basis. The leading salesmen frequently earned
from $ 8,000 to $12,000 a year; they enjoyed relative independence and freedom in their
working methods and their selling time. By those circumstances and by their attitude and
demeanor at the hearing, they were shown to be highly individualistic, for the most part,
and to differ considerably from the constituency of typical craft or industrial units.
In August 1952 Persia's salesmen (along with the salesmen of Dumas and Bolton, the
other Chevrolet dealers) became interested, for two reasons, in forming a union: As a
result of an industrywide steel strike, which lasted from late April until late July, the
dealers were receiving no cars for sale, and as a consequence most of the salemen suffered
a sharp loss in earnings. In addition, Dumas had announced, on or about August 1. a new
compensation plan which the salesmen regarded unfavorably and which the Persia salesmen
feared Persia might be forced to adopt in order to meet the Dumas competition. The inci-
dents which form the subject matter of these proceedings occurred during the course of the
organization campaign, roughly from the middle of August until late November.
An initial contact with CIO having failed to obtain results, the salesmen contacted the
charging Union, which, after a membership drive, made on August 21 a request to bargain,
to which Respondent did not reply. On August 22, the Union filed a single representation
petition, under Case No. 15-RC-799, against Persia, Bolton, and Dumas jointly, and fol-
lowed that by filing, on September 11, separate petitions against Bolton, No. 15-RC-799;
Dumas, No. 15-RC-821; and Persia, No. 15-RC-822. On September 26, a single hearing was
held on the three cases. On November 6, the Board issued its Decision and Direction of
Election in Case No. 15-RC-822, stating that "This case, which was consolidated for the
purpose of hearing with Dumas Chevrolet Company, Case No. 15-RC-821, and Bolton Chevro-
3 Although Rizzo's supervisory status was disputed, the preponderance of the evidence
clearly established that Rizzo's supervision of truck sales was analogous to Oubre's super-
vision of used-car sales; that Rizzo had, and exercised, authority to discipline employees;
that he was paid in the same manner as the other managers and differently to the salesmen;
and that Rizzo succeeded Holliday, who possessed supervisory status
4Respondent emphasized the importance of truck sales by a requirement that two truck
sales a month were necessary to qualify a salesman for floortime in the showroom.
Though Respondent sold at wholesale to used-car dealers most of the used cars which it
took in trade for new cars, it sold the remainder at retail, maintaining a used-car lot for
that purpose.
MIKE PERSIA CHEVROLET CO., INC. 385
let Company , Inc., Case No. 15 -RC-799 , is severed from those cases for the purpose of
decision."
The election, held on November 20, resulted in a vote of 10 to 8 against the Union, with 2
challenged ballots. On November 25, the Union filed objections to the conduct of the election,
which the Regional Director found, after investigation , to raise material issues affecting
the results of the election , and on which the Board ordered a hearing.
The General Counsel offered evidence that during a period from on or about August 22
to on or about November 21, Persia , Monroe, Oubre , and Rizzo engaged in numerous inci-
dents of interrogation and made coercive statements , threats of reprisal , promises of
benefit, etc . Respondent offered evidence in denial and explanation of much of the foregoing.
On October 21 Respondent discharged William Garrett and Bruce Bynum for the asserted
reason that, on September 11, they had participated in the sale of a used car on the outside.
The General Counsel offered testimony , largely controverted by Respondent 's witnesses,
tending to establish that the discharges were made because of union activities.
Other issues herein concern the question of the Union's majority, the sufficiency of its
request to bargain, and the appropriateness of the unit in which the Union originally sought
representation.
B. Interference , restraint, and coercion
Bruce Bynum , Joseph Conte, and William Garrett testified to separate conversations
with Rizzo in late August in which Rizzo stated in effect that the salesmen would be unable
to accomplish anything through the Union and suggested that they would obtain better results
if they went in and talked with Persia as a group . Conte testified that he told Rizzo not to
worry because , " I'd be here. " Rizzo's testimony contained no substantial denial of the
foregoing . Thus he admitted that he had suggested to several salesmen ( including Bynum,
Conte, and Garrett ) at different times that they "would be better off " if some 8 or 10 of
them got together and went in to see Mr. Persia, 5
Conte testified that shortly after Rizzo's suggestion , he was called into Persia 's office
and that Persia stated, "I don't want to hear all of this business ' I'll be here. ' I want to
know how you stand. whose side you are on." Persia also told Conte , "You are a sensible
boy. You don't have to mingle in this thing. You have too much of a-bright future ahead of
you." Conte testified on cross-examination that Persia also said that the salesmen did not
need a union and that he would not sign a union contract.
Conte also testified that shortly after the Company received the Union's letter on August
22. Persia called him and some of the other salesmen in and talked with them individually;
that Persia talked with him about the business , stating that he (Persia) was going to ex-
pand, and that Conte had a good head on his shoulders and had a bright future with the
Company; that Persia asked him how he felt about the Union, and stated that he (Persia)
did not want a union, would not sign a union contract; that he did not think the salesmen
needed a union to represent them, and that the salesmen did not need to pay anyone to work
for him.
Joseph LoCicero testified that he also was called into Persia 's office shortly after the
Company received the Union 's letter, 6 that Persia talked with him about his advancement
with the Company to his position as salesman , inquired how he liked his job and what he
knew about unions , and suggested that LoCicero talk with some unbiased person to help him
decide. Persia also stated that unions had been tried before at other automobile agencies
in different States and had failed, and added, "You know, Joe, we don't intend to sign a
union contract."
Allison D. Smith testified that a few days after the Union 's letter, he was called into
Persia 's office and questioned by Persia about how he had gotten "mixed up with a bunch in
a union like this ," why he had not picked "a high class outfit" to join , and why he wanted a
5 Garrett testified that Rizzo once warned him that if the union activity continued, he and
Platz were sure to be fired . Rizzo testified that it was Garrett who expressed that fear to
him. Garrett 's testimony , being uncorroborated , is not credited over Rizzo 's denials, since
Garrett's testimony, has not generally been relied on herein except where corroborated
by other evidence.
6LoCicero was under the impression that it had been announced at a sales meeting that
morning that Persia wanted to speak with each of the salesmen in his office during the day.
In that respect his testimony was obviously confused with the occasion of Persia's individual
interviews with the salesmen the day before the election in November.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union. Smith endeavored to persuade Persia that if Persia would sign a contract with the
Union, he would be better able to meet the competition of the other dealers , and referred
to the Dumas plan for compensating salesmen .,Persia replied that he was not going to sign
any contract, but that Smith need not worry about Dumas , because he ( Persia ) was going to
pay the same commission he had always paid.
Persia admitted that he had talked to several of the salesmen ("Conte, Platz , and several
others" ) and testified that he was "trying to sell them off the Union ." He admitted that he
could not remember specifically what he said in his conversations with any of them, but
denied that he had stated at any time that he would not sign a contract with the Union.
Further evidence regarding statements attributed to Monroe , Oubre, and Persia, re-
spectively , will be summarized separately. t
Statements Attributed to Monroe
Testimony was given by roughly a dozen witnesses (Bynum, Conte, Smith , LoCicero,
both Pucheus, Walter Reboul, Louis Palermo, Fred Werther, Bernard Salvaggio, William A.
Davis , and Robert D. Gill) to a variety of coercive statements made by Monroe both in and
out of sales meetings during the period prior to the election . It is not necessary to set
forth such testimony in detail since much of it concerns statements which were similar in
character and content and which may, therefore , be regarded as cumulative and mutually
corroborative . Briefly summarized , statements to the following effects were attributed to
Monroe:
That the Company would not sign a contract with the union ; that the 3 dealers had taken
an oath that they would not sign a union contract ; and that if he had had 24 hours ' notice, he
would have broken up the union movement .9 Monroe suggested to Smith and Charles Pucheu,
2 of the oldest and best salesmen , that they were jeopardizing their future earnings by
"fooling with the Union ," warned them against getting in too deep, and offered to make them
promotion manager and advertising manager respectively.
Monroe also stated that he did not want the salesmen to hold any more union meetings at
the Meal-a-Minute or A & G restaurants (nearby eating places patronized by the salesmen);
that Garrett was a union organizer , a promoter , an agitator , and a disrupter of the organiza-
tion; and that he was glad Garrett was out of the organization.
7 Several witnesses for the General Counsel testified that shortly after Respondent re-
ceived the Union's letter of August 21, Respondent abruptly cut off telephone calls from
prospective customers to the salesmen on the floor, without explanation or warning Re-
spondent 's witnesses, Persia, Monroe, and Oubre, admitted that the calls were cut off
temporarily, shortly after receipt of the Union's letter. They explained that the action was
taken after a prospective truck customer had called in and complained that a floor salesman
had failed to keep an appointment made during an earlier call. They decided that the sales-
men were not properly attending to their floor duties and were neglecting prospects, and
that all calls would be diverted to one of the sales managers, who would then be better able
to follow through with the floor salesmen to insure that the prospects were properly con-
tacted. However, the original practice was restored after 2 or 3 days because numerous
calls were placing too heavy a burden on the sales manager Respondent's witnesses also
testified that both the cutting off and the restoration of the calls were announced at sales
meetings.
Aside from the suspicious circumstances that the calls were cut off abruptly and almost
immediately upon receipt of the Union's letter, there is no evidence that the change was in
reprisal for the organizational activities, though it was clear from all the evidence that
Respondent's management staff felt that it was engrossment in such activities which was
mainly responsible for the neglect of business . Respondent offered a credible and logical
explanation for the change; and it is not found that the making of it constituted either dis-
crimination because of, or restraint of, the organizational activities of the salesmen
sIn some cases the witnesses obviously confused statements made during sales meetings
with those which Monroe had made during individual conversations with them, since the
testimony is not always in agreement that certain statements attributed to Monroe were
actually made during sales meetings.
9 Smith's testimony that Monroe said that the names of the salesmen had been listed with
the Louisiana Dealers Association and that they would be unable to get a job elsewhere was
corroborated by no other witness for the General Counsel and is not credited over the
denials of Monroe and Oubre.
MIKE PERSIA CHEVROLET CO., INC. 387
In interviews with new salesmen (Clarence Pucheu, Werther , Davis , and Gill) and with
returning salesmen (Palermo and Salvaggio) around mid-October , Monroe referred to the
attempts to establish a union and asked them not to become involved in it if they were
approached . He pointed out Garrett to Palermo as one who was foremost in the union activity,
named Smith, Conte , Bynum , and the elder Pucheu as also active, and expressed his "dis-
may" over the situation. Clarence Pucheu, Werther, and Gill testified in effect that Monroe
stated in a meeting with the new salesmen late in October that the best way to get out of the
organization was to have any dealings with the Union.
Davis' testimony that Monroe said that Bynum and Garrett had been fired mainly due to
the fact that they were promoting the union was corroborated by no other witness and is not
credited over Monroe 's denials . Save for that testimony , there is no evidence that Monroe
ever directly stated that Bynum and Garrett had been discharged because of their union
activities. However, there was testimony by several witnesses for the General Counsel
that Monroe made statements by which he implied that the discharge was for that reason
and that he also impliedly threatened to discharge other salesmen for the same reason.
That testimony revolved mainly around Monroe's alleged references to having put the
"black cross" or the "black candle" on Bynum and Garrett, his reminder to the salesmen
of their fate , and his threats to take similar steps against salesmen who followed in their
course. There was also testimony that Monroe specifically warned the salesmen against
associating with Bynum and Garrett or having any dealings with them.
Bynum testified that late in September , Monroe complained to a group , which included
also Terrebonne . Rizzo , and Pucheu , that the salesmen , particularly Garrett and Platz, were
not working , stated that he would not "rest " until he got rid of Garrett and Platz , and warned
Bynum that if he did not watch his step, he would also be gotten rid of. Monroe also stated
that the only reason he had not called Bynum in to question turn about his part in the Union
was because Monroe knew Bynum would tell the truth and he did not want to put Bynum on
the spot. Bynum 's testimony was denied by Monroe , Terrebonne , and Rizzo ; and Pucheu's
testimony contained no corroboration of Bynum . Bynum's said testimony has therefore not
been credited.
Monroe and other witnesses for Respondent denied that he had , during sales meetings,
made statements of the character attributed to him by the General Counsel 's witnesses.
However, Terrebonne and DelToro , testifying as Respondent 's witnesses , admitted on
cross -examination that Monroe had said the Company would not sign a contract under the
Union's demands. DelToro acknowledged further that his affidavit to the field examiner (see
pages 388 , 389, infra ), contained the following statement:
I once heard Mr. Monroe say that the company would never sign a contract . He said
this at a sales meeting shortly after he received the letter from the union. As well
as I remember , his words were "For the information of you men , we have talked this
union business over and have decided against signing a contract."
Statements attributed to Oubre
Oubre's participation in the antiunion campaign was on a more limited scale than Monroe's,
and some of the statements attributed to him were made in a jocular vein and were so taken
by the witnesses. Thus, Smith, LoCicero, Salvaggio, and Reboul testified to separate occa-
sions on which, in closing deals with Oubre, he had jokingly asked to see their union cards.
Those inquiries are not considered coercive in view of the salesmen's participation in
admittedly bantering conversations, Beaver Machine & Tool Co., Inc., 97 NLRB 33; Tennes-
see Coach Co., 84 NLRB 703, 726; cf. Dixie Culvert Manufacturing Co., 87 NLRB 554, and
their recognition that the inquiries were not seriously put. However, Bynum testified that
during the course of another "kidding" conversations with Oubre about the union, Oubre had
said, "Even if you win, you are going to lose, because Mr. Persia will never sign the con-
tract." Though a joking conversation may have furnished the setting for that statement, it
was not of a jesting nature, was obviously not made in jest, nor did Bynum so consider it.
Furthermore Oubre's statement was in accord with similar statements attributed to Persia,
Monroe , and Rizzo.
Salvaggio, who had returned to Persia ui mid-October and who had been requested by
Monroe not to become involved in the union activities, testified that the morning after
Bynum and Garrett were discharged, he had gone to the Meal-a-Minute Restaurant for
coffee and had there met or seen Bynum, Reboul, Garrett, and two salesmen from Dumas.
An hour or so after his return, Oubre called him into his office, questioned him as to what
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was doing at the Meal-a-Minute and whether he did not know that "the men [he was]
sitting with were some of the union leaders ." When Salvaggio denied such knowledge, Oubre
inquired whether they had approached him about joining the Union . Upon Salvaggio 's further
denial, Oubre inquired how he felt about the Union , and when Salvaggio replied that he was
still neutral, Oubre directed Salvaggio to report to him if anyone approached Salvaggio
about the Union. Salvaggio testified that on another occasion Oubre told him that the Com-
pany knew what was going on, what the salesmen did, and where they went.
Salvaggio testified to -a further conversation with Oubre in November prior to the election
in which Oubre inquired whether anyone had approached him concerning the Union. When
Salvaggio replied that two of the men on the floor had talked to him about it, Oubre asked
who they were. Though Salvaggio refused to say. Oubre again directed Salvaggio to come in
report to him whenever Salvaggio was approached about the Union. 10
Fred L. Werther testified that a few days before the election Oubre stated that he heard
that Werther was going to attend a union meeting . Werther denied the report.
Conte testified that the union had held a meeting at the Roosevelt Hotel the night before
the election and that a day or so after the election Oubre told him that he (Oubre) knew that
Conte and Salvaggio had, made speeches at the union meeting (as they had in fact done),
and that he knew who had voted for the Union and who had not.
Oubre admitted that he readily and frequently discussed the Union with the salesmen and
that he made joking references to it . His version of the Bynum conversation was that he had
stated that he could not see how the Company could sign the contract which the Union was
asking for and remain in business . He testified that Conte had volunteered the facts sur-
rounding his participation in the preelection meeting , and denied the remainder of Conte's
testimony. Oubre also denied Salvaggio's testimony, but did not deny Werther's.
Persia's Preelection Talk and Individual Interviews
Persia did not normally appear or speak at the regular morning sales meetings. However,
on the day before the election he personally addressed the salesmen. His talk consisted
mainly of reading to the salesmen a letter prepared by his attorneys, copies of which had
also been mailed them. Despite the General Counsel's contention to the contrary, practically
all of the letter was undoubtedly privileged as free speech , and it will, therefore , not be set
forth in extenso. It was only to the following sentence that the General Counsel voiced
specific objection , in the light of the repeated statements made by Persia, Monroe, and
Oubre that the Company would not sign a contract with the union:
Whatever the Union has promised , it can get you nowhere until negotiations are
completed and contract signed with the Company. (Emphasis in original.)
At the conclusion of Persia 's talk the salesmen were informed that Persia wished to
speak with each one individually in his office. During those interviews Persia referred
generally to the ensuing election and in some instances referred only to the employees
right to vote freely in it.
Conte testified, however, that Persia stated that he did not want a union in there, would
not have one, and would not sign a union contract; that the salesmen did not need a union to
represent them, particularly one with Negroes, warehousemen, and helpers in it; that he
(Persia) had made a mistake in hiring Garrett, who had disrupted the organization and had
gotten "the boys all riled up"; that Conte, however, had a bright future with the Company
and that he did not want to see Conte "get messed up with" the Union.
LoCicero testified that Persia referred to his earlier suggestion that LoCicero consult
someone about the Union and inquired whether LoCicero had "decided anything." LoCicero
replied that he was on the fence and could fall on either side. Persia then stated, "You know
we are not going to sign a union contract, Joe. And you do what you think is best."
10 Salvaggio also testified that some time in November, Oubre, in complimenting him on a
deal, stated that Salvaggio should "keep up the good work"; that the Company was planning
to cut the sales force to some 7 or 8 men; and that he intimated that Salvaggio would be
retained if he continued his good sales work Oubre's statements were obviously intended
to encourage Salvaggio to continue the quality of his performance. No reference was made
to the Union, and the record otherwise fails to disclose that Oubre's statements were re-
lated in any manner to union activities indeed, Salvaggio twice had refused Oubre' s sugges-
tion that he report on certain phases of union activities.
MIKE PERSIA CHEVROLET CO., INC. 389
DelToro, when testifying as Respondent's witness, denied on cross-examination that
Persia, in interviewing him, had referred to a contract with the Union , but he was then
confronted with, and acknowledged giving, an affidavit to a field examiner on January 7, 1953,
which contained the following statement:
The day before the election Mr. Persia called me into his office and asked me how I
felt about the election. I told him that I was on the fence . He said, "Well, Del, you know
I have no intentions whatsoever of signing a contract . And I hope you make the right
decision tomorrow."
DelToro admitted that he read the affidavit and swore to it and that he gave it voluntarily.
His attempts to qualify and to explain it were wholly unconvincing . The quoted statement
from the affidavit is therefore regarded as corroborative of the testimony of the General
Counsel 's witnesses that Persia did state during the preelection interviews that he would
not sign a contract with the Union.
Reboul testified that Persia stated that Monroe had asked him what they should do with
the salesmen who voted for the Union and that he had replied to Monroe that everyone is
entitled to a few mistakes . At the conclusion of the interview Persia told Reboul, "I hope
you vote the right way," and that he (Persia ) would be "closer to the salesmen now."
Charles Pucheu testified that Persia asked him whether he was one of the "head men" in
the Union and that he heatedly denied it.
Clarence Pucheu testified that Persia stated that he had spoken to the witness' father, had
gathered that the father would not have anything to do with the Union , and that he figured that
young Pucheu would do the same. When Pucheu replied that he had not decided whether to
vote for or against the Union , Persia stated that when Pucheu 's father had asked that the
son be put on as a salesman , Persia would not have agreed to do so if he had thought that
young Pucheu would have had any kind of dealings with the Union.
Palermo, Werther, and William R. Gremillion also testified for the General Counsel as
to their interviews with Persia, but their accounts disclosed no statements which were not
privileged under Section 8 (c). The same is true of Respondent 's witnesses Hugh C. Morton
and Ecton Terrebonne.
Persia testified that he called the salesmen in to try to sell the men off the Union and
that he stressed the "high spots " of the letter to be sure they got a "double dose." With
few exceptions he was unable to recall what he had said to particular employees , but he did
deny the bulk of the statements which were attributed to him by Conte, LoCicero, and young
Pucheu. I
Concluding Findings
As is seen from the foregoing summary, a number of witnesses for the General Counsel
attributed to the various members of Respondent 's managerial staff numerous statements,
generally similar in character and content , many of which were coercive in nature. That
testimony , if credited , disclosed that Respondent 's representatives were pursuing parallel
courses of action and patterns of conduct which were plainly dedicated to impeding the
organizational activities and to defeating the Union in the election. Though Respondent's
witnesses denied the more coercive of the statements attributed to Respondent 's officials,
the officials themselves readily admitted that they freely and frequently discussed the union
and the developments in the campaign with the employees, and Respondent's president
admitted his attempts to persuade the employees to renounce the Union and to vote against
it in the election.
In that setting, in view of the number and similarity of the statements attributed to Persia,
Monroe, Oubre, and Rizzo, and the convir cing, well -supported , and mutually corroborative
testimony of the General Counsel's witnesses, it is found that their testimony clearly pre-
ponderates on the record as a whole and that Respondent 's representatives made, with the
exceptions previously noted, the statements attributed to them.
Some further discussion is in order , however, as to Monroe 's alleged references, to the
"black cross ," which were denied by Respondent 's witnesses . In general , their testimony
was to the effect that Monroe explained the Garrett-Bynum discharge as due to the outside
sale of a used car (the testimony of Charles Pucheu, Palermo, and LoCicero for the General
Counsel, was in accord), and that he warned that other salesmen would be discharged if
they engaged in similar activities.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though the preponderant weight of the testimony sustains the version of the General
Counsel's witnesses that Monroe actually referred to having put the "black cross" on
Bynum and Garrett (Monroe, Oubre, and Rizzo admitted that Monroe made references to
burning a black candle), that fact does not establish the General Counsel's contention that
Monroe was implying that the discharge was for union activities. To the contrary, Monroe's
use of the term was equally, or more, compatible with his statement that the men had been
discharged because of the outside sale and with his warnings that other discharges would be
made if there were similar infractions of Respondent's "cardinal rule." Monroe's warnings
to the salesmen against associating with Bynum and Garrett were similarly in line with
Respondent's policy, and Monroe's warnings periodically issued, against associating with
salesmen of other dealers. In Garrett's case, particularly, Respondent might well have
feared contamination of other salesmen through involvement in outside deals.
It is, therefore , concluded and found that by the repeated instances of interrogation of the
salesmen as to their union membership, sentiments , and activities; by the promises of
benefit for refraining from union activities; by the warnings and threats of reprisal for
engaging in union activities or having dealings with the union; by the statements that the
Company would not sign a contract with the union; ii by the surveillance of union meetings
and activities and by the attempts to procure reports on, and surveillance of, union activities
by employees, u Respondent interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed by Section 7 of the Act.
C. Alleged discrimination; the Garrett-Bynum discharge
Garrett had been employed by Respondent since May 1951. Bynum had been reemployed in
June or July 1952, after an earlier employment from 1950 to mid-1951. Bynum was at best
an average or mediocre salesman (he had earned only $ 700 up to the time of his discharge).
Garrett was an excellent salesman, but one whose sales tactics sometimes earned him the
criticism of his fellow salesmen and whose violation of company rules had brought censure
and disciplinary action from the sales managers , including suspension for a week in July
because of violation of the rule against making outside sales. Both men had taken an active
part in the organizational campaign, and that fact was well known to Respondent. 13
Bynum and Garrett were discharged by Respondent's letters dated October 21, which had
been prepared by Respondent's attorneys and which were signed in its behalf by Persia
as its president. Bynum's letter read as follows:
We have irrefutable evidence that on the morning of September 11th, 1952 while you
were acting as floor salesman for this Company , Mr. Albert Granja entered our place
of business and conferred with you about the purchase of a used car for a client of his.
n The sentence from Persia 's letter, quoted at page 388 , supra , was plainly intended to re-
mind the salesmen of the earlier oral statements and of Respondent ' s intention to deny them
the fruits of their organization , even though they should vote for, and select , the union in
the election.
12 Whether the surveillance indicated by Oubre 's conversations with Salvaggio and Conte
was actual or only pretended , the coercive effect was, of course , the same. Knickerbocker
Plastic Co ., Inc., 96 NLRB 586; F. W Woolworth Co., 101 NLRB 1268; L&H. Shirt Co., 84
NLRB 248, 272; S. W. Evans & Son , 81 NLRB 161; Harold W. Baker Co, 71 NLRB 44, 53;
cf. N. L R. B. v. John S . Barnes Corp., 190 F. 2d 127 (C. A 7).
l3Rizzo , prior to becoming truck manager on August 16, had himself participated in the
earlier organizational activities and was one of the group of salesmen who had originally gone
to the CIO offices After Respondent received the letter from the AFL union, Rizzo told Monroe
of his connection with the earlier activities , and Monroe admitted that on his inquiry Rizzo
told him the names of some 10 to 11 salesmen who had gone to the CIO hall. Monroe had also
referred to Garrett on several occasions as a leader in the Union ( as to Palermo), and had
also included Bynum in naming others who were active Monroe admitted that there was no
secret as to who was active in the Union and that he learned from general conversation who
some of the active participants were . In view of the admitted frequency and freedom with which
Respondent 's representatives discussed with the salesmen their union sentiments and activi-
ties , and the active antiunion campaign disclosed in section B, supra, it would be wholly un-
realistic to assume that Respondent was unaware of the identity of the active adherents.
MIKE PERSIA CHEVROLET CO., INC. 391
We are in the possession of further evidence that Mr. William Garrett, a salesman
of this Company, having overheard your conversation with Mr. Granja, mentioned that
he had one of his own cars for sale and that it was on the Best Motor Company lot. We
are informed that you then took Mr. Granja to the Best Motor Company lot and sold
him a 1948 Four-door Chevrolet sedan, Motor No. FFA 321380.
In connection with this transaction you were paid a commission by Mr. Garrett, part
of which was given by you to Mr. Granja.
This action on your part was, of course, prejudicial to the interest of the Company
and in complete violation of your obligations as a saleman of the Company.
Under the circumstances you are hereby advised that effective immediately your
services with this Company are terminated.
We regret the necessity of this action but we have no other alternative.
Garrett's letter read as follows:
In the very recent past you have been guilty of several serious acts of insubordination,
for which you might have been discharged and which we have overlooked. However,
your last transgression is most serious and prejudicial to the interest of the Company
and necessitates your dismissal.
We have conclusive evidence that on the morning of September 11th, 1952, Mr. Albert
Granja entered our place of business and conferred with Mr. Bruce Bynum, the floor
salesman of that day, about purchasing a used car for a client of his. We have further
evidence that, having overheard this conversation , you told Mr . Bynum that you had
one of your cars for sale and that it was on the Best Motor Company lot. Thereafter
Mr. Bynum took Mr. Granja to the Best Motor Company lot and sold him a 1948 Four-
door Chevrolet sedan, Motor No. FAA 321380.
We further understand that you paid Mr. Bynum a commission in connection with this
transaction and also paid Best Motor Company a fee for leaving the car on their lot.
This action on your part was, of course, prejudicial to the interests of the Company
and in complete violation of your obligations as a salesman of the Company.
You are hereby advised that, effective immediately, your services with this Company
are terminated.
We are mailing you a check for the total amount of commission due you through today.
We regret the necessity of this action but we have no other alternative.
The General Counsel, not disputing the facts regarding the Granja sale, except for the
date, contended nevertheless that the discharges were discriminatorily motivated, and points
to evidence which he introduced as establishing the following facts: (1) The Granja sale
was actually made on August 16, within the period of car shortages during which Monroe had
condoned or overlooked outside activities of the salesmen , including outside sales; (2) Re-
spondent's antiunion campaign and certain statements made by Monroe both before and after
the discharge disclosed that the real cause was the participation by Garrett and Bynum in
union activities.
(1) There was no dispute, as the evidence developed, that Bynum had made the Granja
sale on August 16. And though a mass of testimony was introduced on the hotly contested
question whether Monroe in fact condoned outside sales during the car-shortage period,14
the issue will become immaterial as to the making of the discharges unless the evidence
establishes that Respondent knew or had reason to believe that the Granja sale was made
during that period, yet acted deliberately on the basis of false information which indicated
the sale was made outside the period. Relevant to the consideration of the latter question
is the evidence surrounding the investigation which Respondent made after learning of the
sale.
On October 17, J. E. Witchen, the proprietor of Best Motor Co., from whose lot Bynum
had sold Garrett's car, referred to Oubre representatives of the purchasers, who were
demanding refund of the sales tax which Garrett had collected (the car having been pur-
chased for export). During their interview with Oubre in his office, those representatives
exhibited to, and left with, Oubre the shipping (export) papers, which were dated September
11, but no other reference was made to the date of the sale.
IA The evidence is undisputed that, as early as August 20, Monroe began again repeatedly
to remind the salesmen of Respondent 's cardinal rule against outside sales.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oubre called in Garrett , showed him the shipping papers , informed him of the purchaser's
complaint , and questioned him angrily about the sale and about his violation of Respondent's
rules. Garrett would not acknowledge the deal was his , claiming he was unable to recognize
the car from the description and the motor number contained in the shipping papers, but he
admitted that he had a license to buy and sell used cars , that he had placed cars on the
Best lot for sale, and that Bynum had sold one of his cars "a month or two ago."
Oubre immediately reported the incident to Monroe , who called in Bynum in turn, showed
him the shipping papers, and questioned him about the sale. Bynum admitted making the sale,
but attempted at first to equivocate on the question whether the car was Garrett 's, because,
he testified , he wanted to shield Garrett fromMonroe 's ire . Monroe testified that no reference
was made to the date of the sale , but Bynum testified that he told Monroe he made the sale
"a couple of months ago."
Thus Bynum 's statement accorded roughly with Garrett 's acknowledgement to Oubre that
Bynum had sold one of his cars "a month or two ago ." Though their testimony is accepted
that they made those vague and general statements to Oubre and Monroe , respectively, such
indefinite statements appeared no more then general corroboration of the date on the shipping
papers , which both had examined , and which bore a date then more than 5 weeks in the past.
Certainly their statements were inadequate to apprise Respondent that they were questioning
the correctness of that date ; but even if so regarded , Respondent could well have mistrusted
their claims in view of Garrett's general evasiveness and Bynum 's reluctance to implicate
Garrett. Indeed , Respondent 's subsequent investigation developed what appeared to be
conclusive corroboration of Respondent 's assumption (testified to by Monroe , Oubre, and
Persia ) that the shipping papers in fact reflected the correct date of the sale.
Following the Bynum interview , Monroe and Oubre reported the incident to Persia, who
thenceforth assumed direction of the matter and who made the actual discharges . Monroe
took no further part; though the evidence indicated that Oubre participated in the investigation,
it does not show to what extent he did so.
Persia testified that he immediately consulted his attorneys because , when he had referred
to them the Union's letter of August 21, they had advised him that in view of the union ac-
tivities , he should be careful about his relations with the employees and about discharging
anyone . He testified that thereafter he and Lancaster interviewed Witchen, and that Witchen
told them "absolutely" that the sale had been made on September 11.
Respondent also introduced in evidence Witchen's affidavit , made on October 21, before
Lancaster as Notary Public, as follows:
My name is J. E. Witchen doing business as Best Motor Co ., 1715 Canal Street.
On or about Sept 11, 1952 Mr. William Garrett had four used cars on my lot. He stated
that he would give me Ten Dollars for leaving each car here until they were sold.
On or about that date Mr. Bruce Bynum brought a customer (of foreign descent) to the
lot to show him one of these cars , a 1948 Chevrolet Sedan.
My son handled all the transaction . He made out a bill of sale which he signed for
Mr. Garrett . The purchase was made by check which was given to Mr . Garrett.
He paid me Ten Dollars as a lot fee.
The remaining three cars were sold by Mr. Garrett during the following month. In
addition he left three other cars on the lot after September 11, 1952 , I then told Mr.
Garrett not to bring any more cars to my lot.
On Friday , October 17, 1952 , a Spanish lady with an interpreter came to the lot in-
quiring about the sales tax which was collected at the time of the sale of the Chevrolet.
I referred her to the Persia Chevrolet Co. where Mr . Garrett would have to explain the
matter to her.
Persia testified that, acting on the basis of Witchen 's statements and his sworn affidavit
and on Oubre 's and Monroe 's report to him of Garrett's and Bynum 's admissions, he made
the discharges on October 21, by the letters quoted above.
There is no evidence from which it can be concluded that Respondent did not in good faith
rely on the facts developed in its investigation . The General Counsel made no attempt to
impeach the correctness of the Witchen affidavit by calling either Witchen or his son , though
it is reasonable to assume that both the formal investigation of the charges and the General
Counsel's pretrial preparations extended to interviewing them.
Since it is , therefore , found that Respondent acted on the basis of a good-faith belief,
based on its investigation , that the sale had been made subsequent to the car shortage period,
it is unnecessary to consider here evidence that Respondent had condoned used car sales
MIKE PERSIA CHEVROLET CO., INC. 393
during the earlier period, though the point is of somewhat more materiality on the question
of Respondent 's refusal to reinstate the two men in November.
(2) Though the foregoing findings go far toward sustaining Respondent 's defenses, there
remains the question whether other evidence supplies proof that Respondent was in fact
discriminatorily motivated in making the discharge. Certainly the findings under section B,
supra, establish plainly that Respondent was committed to a course of conduct which was
calculated to discourage and to defeat the organizational efforts of their salesmen. More
directly indicative of a discriminatory intent were Monroe 's various statements identifying
Bynum and particularly Garrett as union leaders, his characterization of Garrett as a
"disrupter " or "agitator ," and his warnings to new salesmen that discharges might follow
any dealings with the union.
As previously found , Monroe made no direct statement that Bynum and Garrett had been
discharged because of their union activities , nor did his "black cross" references so imply.
It has also been found that his warnings against association with the dischargees did not
imply that their union activities were responsible for their discharge . Moreover , were it
presumed that Monroe intended the salesmen to infer that Bynum and Garrett had been dis-
charged because of their union activities, that fact would not, under the circumstances here,
establish that such was the cause of the discharge (though Monroe's statements would then
have constituted interference , restraint , and coercion), since it was Persia , not Monroe,
who made the discharge , as a result of an investigation in which Monroe had taken no part
save in the initial phase.
In sum , the situation presented is one in which Respondent was engaged in a campaign to
defeat the organization of its salesmen , was fully aware of the identity of the leaders and that
Garrett and Bynum were among them, and through Monroe had made implied threats that
discharges would follow dealings with the Union. Those facts plainly established Respondent's
discriminatory inclination, and it may be assumed that it welcomed the opportunity to get
rid of the two salesmen. Yet proving the existence of the inclination to discriminate does not
prove that Respondent acted from it; Respondent was not thereby precluded from discharging
the salesmen for cause, if cause arose and if cause was the motivating factor, rather than
the discouragement of union activities . 16 Certainly the pendency of the organizing campaign
afforded the salesmen no immunity against the flouting of Respondent's rules, particularly
one which was emphasized as repeatedly as that against making outside sales.
Nor does the evidence support the General Counsel 's contention that Respondent did not
strictly enforce the rule, even outside the car-shortage period, and that it had knowledge of,
and had overlooked and condoned, outside sales by other salesmen. Most of such evidence
related to Respondent 's alleged knowledge of sales during the car -shortage period (later to
be discussed), when some justification would have existed for a temporary relaxation of
the rule. There is no credible testimony that Respondent ever learned of any sales outside
that period made by salesmen other than Garrett and Bynum. Huth's testimony that Oubre
complained "once" or "twice" about Huth's outside sales is not credited over Oubre's
denials in view of Huth 's admitted animus against Oubre , emanating from the circumstances
of Huth's discharge . 'Ihough Platz ' testimony indicated that he also had frequently violated
Respondent 's rule outside the car -shortage period , there is no evidence that Respondent was
aware of his actions.
But the General Counsel also points to Garrett 's prior suspension as indicating that Re-
spondent chose , after the advent of union organization , to impose a "drastic penalty" in
"sudden and strict enforcement" of the Company's policy. That the earlier disciplinary
action was limited to a suspension was explainable on several grounds: Garrett was ad-
mittedly a superior salesman . The sale then made was of a "trade-in " which Garrett had
taken on his own demonstrator . Monroe made the suspension ; and when Persia learned of
it, he spoke critically to Monroe, stating that Monroe should have discharged Garrett.
The later sale represented not only an additional violation by Garrett , but a more flagrant
one. Furthermore , Witchen 's affidavit indicated (and some of Garrett 's testimony confirmed)
that Garrett had actually engaged in a course of dealings in violation of Respondent's rule.
15 Cf. Lloyd A. Fry Roofing Co., 85 NLRB 1222; Chance-Vought Aircraft Division of United
Aircraft Corp., 85 NLRB 183; McKinney Lumber Co. Inc., 82 NLRB 38; D & D. Trans-
portation Co., 100 NLRB 920. And see Texas Consolidated Transportation, 101 NLRB 1017,
where a discharge was found not to have been discriminatory, where based on repeated
violations of the employer ' s rules , despite an earlier statement by the employer ' s manager
that he had decided to seek a legitimate occasion to discharge the employee because he had
lied about his union activities.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bynum was not only a participant in the Granja incident , but he had made the actual sale.
Despite his previous innocence , there were no extenuating circumstances indicated by
Respondent 's investigation , as in the case of Garrett 's earlier suspension , nor was there any
reason for Respondent to consider relaxing its rule for Bynum in order to retain the services
of an excellent salesman.
Nor does Monroe 's failure summarily to discharge the men , or his referral of the matter
to Persia , or Persia 's handling of it, avail the General Counsel 's theory of the case . Because
of the organizational activities and the prior advice of counsel , Respondent chose to proceed
cautiously , in full awareness of the limitations on its right freely to discharge employees
during an organizing campaign , and to act only after guilt had been conclusively established.
Thus , it is found on the evidence as a whole that the General Counsel has failed to establish
by a preponderance of the evidence that Respondent discharged Bynum and Garrett because
of their union membership and activities . Instead , the evidence sustains Respondent's
defense that it discharged them as a result of the Granja sale , made , so far as it had reason
to believe , on September 11.
But the General Counsel points to evidence that Respondent subsequently denied the men
reinstatement with knowledge that the sale had occurred at a prior date . Thus, it was stipu-
lated that Lancaster was informed approximately a week after the discharge that the sale had
actually been made on August 16. And, at the suggestion of field examiner Foster, Bynum
and Garrett called on Persia in November and informed him that the date stated in the dis-
charge letters was wrong and that the correct sales date was August 16. Persia asked what
difference the date made , since they admitted selling the car, and Bynum explained that their
impression was they were entitled to make outside sales at that time because Respondent had
no cars for sale . Persia then asked why they wanted to work for him , and concluded the
interview by stating he would check with his attorneys.
Though , for reasons presently to appear , the question whether Respondent had condoned
outside sales during the car -shortage period is again unnecessary to the determination of
the present question , the evidence will be summarized briefly in the margin because of its
prominence in the record.16
16 Although the evidence establishes that Respondent did not formally relieve the salesmen
of any of their duties during the period of the car shortage, it shows that their normal selling
activities were considerably handicapped by the absence of cars and the inability to assure
deliveries , since there was a limit to the sales which could be made from a brochure or a
catalog for indefinite future delivery . Consequently , except for attendance at sales meetings
and serving their allotted floor time, many of the salesmen took advantage of the opportunity
to take trips , go fishing , go on vacations , paint and repair their homes, and engage in other
outside activities . Thus, Persia testified at the representation hearing that most of the
salesmen were "inactive" during the car-shortage period , and Bynum and Pucheu, among
others, testified at the present hearing that they earned no commissions during the month
of August
Consequently , though Respondent did not formally relax its rule against the making of
outside sales, it might reasonably have expected its salesmen to endeavor to supplement
their income by outside activities during the period when Respondent had no cars to be
sold. Indeed, the evidence establishes that about the time cars began to arrive in August.
Monroe referred in a sales meeting to his awareness of the fact that the salesmen had been
engaging in outside activities and warned them to stop , because, with new cars coming in,
Respondent was insisting that they devote their full time and attention to moving the new
cars . Whether Monroe referred specifically to his awareness that some salesmen had been
selling used cars is in sharp dispute between the witnesses for the General Counsel and for
Respondent . However, Bynum, when first testifying on the point, admitted that Monroe did
not use "those exact words "; and he testified on cross-examination that what he understood
Monroe to mean was that, "he wanted us to quit whatever we were doing and start selling
[ new] automobiles ." That version corresponds to Respondent's.
The General Counsel also offered the testimony of Garrett and Platz that they specifically
informed Monroe of an outside deal during the period and that he not only condoned it but
offered to protect them against the complaint of the vendor . Platz had not testified about
the incident on his first appearance on the stand , and when called in rebuttal , his demeanor
and manner of testifying were such that his testimony can be given no weight , even as
corroboration . Monroe denied the testimony , and his denial is credited in view of the in-
herently incredible aspects of Garrett's testimony.
MIKE PERSIA CHEVROLET CO., INC. 395
Though Respondent might, if it had chosen, have reinstated Bynum and Garrett upon being
informed of its erroneous assumption as to the date of the sale, it was not obliged to do so
unless its refusal was because of their union activities. For the discharge, having been made
for cause, could not be converted retroactively into one made from a discriminatory moti-
vation simply by a showing that Respondent was later informed that one of the facts upon
which it had relied in good faith was not correct. Indeed, Persia's inquiry as to what difference
the date made was thoroughly compatible with Respondent's contention that it had at no time
condoned outside sales. See footnote 16, supra
Furthermore, the record establishes that Garrett's discharge was not based solely on the
fact of the Granja sale; there were also the circumstances of his earlier suspension for a
similar offense and his apparent dealings in other cars subsequent to the car shortage.
Having legally discharged Garrett, Respondent was not required to reemploy one with such
a record. In Bynum's case, similarly, Respondent having acted on the basis of legitimate
cause, was not required to make room on its staff for one with such a mediocre sales record.
Finally, essential to any finding that Respondent discriminated against Garrett and Bynum
by refusing to reinstate them in November was some showing that there were jobs available.
There is, however, no evidence that there were any vacancies at the time. Though Respondent
had hired and rehired several salesmen around the middle of October, there is no evidence
that it hired, or that it needed, additional salesmen in November at the time of the Bynum-
Garrett application to Persia. To the contrary, the evidence indicates that Respondent was
currently planning to reduce its sales force: thus Oubre's statement to Salvaggio in November
(see footnote 10, su r) that Respondent was considering cutting its staff to 7 or 8 salesmen.
It is, therefore, concluded and found on the entire evidence that the General Counsel has
failed to establish by a preponderance of the evidence that Respondent engaged in discrimina-
tion as charged in the complaint; and it will be recommended that the complaint be dismissed
insofar as it charges a violation of Section 8 (a) (3).
D. The refusal to bargain
1. The appropriate unit; the Union's majority representation
All new- and used-car and truck salesmen at Respondent's New Orleans, Louisiana, estab-
lishment, excluding office and clerical employees, ,professional employees, guards, and all
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. Respondent does not question that
this unit is appropriate, but raises questions as to the unit specification in the Union's request
to bargain, which are discussed under the following section.
On August 20 there were 16 employees in the above unit. The General Counsel offered in
evidence 15 signed authorization cards, 2 of which were rejected when it developed that they
had been obtained subsequent to receipt by Respondent of the Union's request to bargain on
August 22. Respondent also questioned the validity of the authorizations obtained from Ecton
Terrebonne and Herman DelToro, because of coercive statements made at the time their
signatures were obtained. In Terrebonne's case, it is also questionable whether he signed
the card prior to receipt of the request to bargain. However, even with those 2 authorizations
eliminated from consideration, the Union represented 11 employees in a unit of 16. It is,
therefore, concluded and found that at the time the Union made its request to bargain on August
22, it represented a majority of the employees in the aforesaid unit.
2. The request to bargain and the refusal
On August 21, the Union mailed Respondent the following letter, received by Respondent
on August 22: i7
It is concluded and found that the preponderance of the evidence does not establish that
Respondent had actual knowledge of outside sales during the car-shortage period or that
Monroe expressed awareness of such a fact at sales meetings.
i7 The Union's copy was received in evidence over Respondent's objection after Respondent
was unable to produce the original Respondent's contention that no proper foundation was
laid is found to be meritless under the best evidence rule in view of the credited testuno'iy
of James P Schwehm and Fred J Gremillion as to the mailing of the letter by registered
mail and the testimony of Raymond G Aucoin, assistant to Respondent's secretary and
treasurer, identifying his signature on the return receipt
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mike Persia Chevrolet Co.
317 N. Rampart St.
New Orleans, La.
Attn: Mr. Mike Persia, Sr.
Re: Salesmen and Demonstrators
Dear Mr. Persia:
Please accept this letter as our official notice to your Company that we are the duly
representatives (sic) of your automobile Salesmen or Demonstrators, who are employed
in your New Orleans, La. office.
We therefore, request an appointment with your representative, with full power to
act in your behalf, at the earliest convenience to bargain for wages and working condi-
tions for your employees.
May we hear from you by return mail and thanking you for your kind attention on the
above matter we are,
Sincerely yours,
On the same date, Respondent received from the Board's Acting Regional Director a copy
of the following letter, dated August 22, addressed to the Union:
Gentlemen: BOLTON CHEVROLET, INC.
DUMAS CHEVROLET COMPANY
MIKE PERSIA CHEVROLET COMPANY
Re: New Orleans , Louisiana
Case No . 15-RC-799
This is to inform you that the petition filed in the above case has been assigned to
Field Examiner Joseph Smolen who will either telephone or call upon you in the near
future.
If you have not already done so, please submit to this office within forty-eight (48)
hours copies of all correspondence and contracts, if any, by and between the employer
and your organization bearing upon the question of representation alleged to exist. is
Respondent questions the sufficiency of the request on grounds which may be summarized
as follows: (1) The letter did not claim that the Union represented a majority, but only that
"we are the duly representatives" of the employees; (2) the unit specification was ambigous
and confusing in that, while Respondent had no employees known as demonstrators, the
caption read, "Salesmen and Demonstrators," the body referred to "Salesmen or Demon-
strators," and the bargaining request referred to "your employees"; (3) the filing of the
petition for an election, almost simultaneously, further confused the Union's unit claims,
since it appeared to be seeking a single unit for the three dealers; (4) while a request for
recognition was made at the representation hearing, and the Union's unit contentions were
clarified, no subsequent demand to bargain was made. Those contentions will be considered
in order.
(1) The text of the first paragraph of the Union's letter showed plainly that the Union was
claiming to be the "representatives" of specified employees. Though a word was obviously
missing from the text, (chosen, selected, or authorized), the context clearly supplied what
was lacking, and the demand was otherwise adequate as it read. It was also plain that the
Union was claiming to represent all of Respondent's employees in the specified category; 19
this was clearly adequate as a claim of majority representation.
(2) The evidence contained in this and in the RC case record shows that the term "demon-
strator" is used among automobile dealers to refer, not to a class of employees, but to new
automobiles which are furnished at cost by the dealers to their salesmen for the purpose of
ii Though Respondent contends that Respondent also received a copy of the representation
petition on August 22, the record in the representation proceedings shows that Respondent
was served with the petition on August 26.
19 indeed, the union had obtained 13 cards (of 16 salesmen) before delivery of its letter,
and it obtained 2 more almost immediately thereafter
MIKE PERSIA CHEVROLET CO., INC. 397
providing them with transportation and for demonstration to prospective customers. The
inclusion of the word demonstrators as an apparent synonym for salesmen was surplusage;
it was an obvious error which could not reasonably have misled or confused Persia, who
well understood the import of the term in his business and who had no employees in that
(nonexistent) category. Though Persia testified he did not know what the latter meant or
who the Union was claiming to represent, he made no attempt to clarify the matter by calling
the Union. Furthermore, in informing both Monroe and Oubre of the letter, Persia indicated
no doubt or confusion about whom the Union was claiming to represent. Indeed, Oubre testi-
fied that what Persia told him was, "The Union is trying to organize the salesmen."
Nor was the request indefinite or ambiguous in the use of the term "salesmen," since the
evidence showed that Respondent's salesmen engaged generally in selling new and used
cars and trucks and since the Union's request extended to all of Respondent's salesmen.
Thus the evidence showed that there was no such ambiguity in the request as would excuse
Respondent from ignoring it. Cf. The C. L. Bailey Grocery Company, 100 NLRB 576; Parker
Brothers and Company, Inc., 101 NLRB 872; Cary Lumber Company, 102 NLRB 406; Smith
Transfer Company, 100 NLRB 834. The Union's identification of the unit was sufficiently
clear and specific that Respondent knew, or certainly should have known, that the Union was
claiming to represent all its salesmen. Cf. ibid. Indeed, it was among the salesmen that
Respondent immediately set about its course of unfair labor practices, as herein found, to
undermine the union's majority, whilst it ignored the union's request to bargain.
(3) The Union's letter specified that it represented Respondent's automobile salesmen
and requested Respondent to bargain for wages and working conditions for those employees.
There was no suggestion that the Union was claiming to represent employees of other em-
ployers, nor could Respondent so interpret the Regional Director's letter to the Union.
Although that letter was captioned in the names of the three dealers under a single case
number, it simply referred to the filingofa petition and requested the Union to submit certain
evidence. Since Respondent admittedly sought no clarification of the Union's representation
claim, it is difficult to conceive how it can now claim that the Regional Director's letter
somehow converted the Union's earlier request to bargain for its own salesmen into a
request that Respondent bargain for a unit to cover salesmen of all 3 dealers. And though
Respondent was served on August 26 with a copy of the original representation petition,
which listed the 3 dealers as the employers involved, amended petitions were filed on Septem-
ber 11, and served on September 12, which listed each dealer separately as the employer.
At the consolidated hearing held on September 26, the Union stated its position alternatively
that either a single or three separate units were appropriate, and the employers contended
that only separate units were appropriate. The Board, severing the cases for purpose of
decision, found that a separate unit of Respondent's salesmen constituted an appropriate
unit. Thus, the Union's unit specification of August 22, conformed in all practical respects
with the Board's ultimate finding of an appropriate unit, which is presently conceded by
Respondent to be correct.
(4) There is, as Respondent asserts, no evidence of a request to bargain subsequent to that
of August 22. Attention is therefore turned to the question whether the evidence establishes
that there was a refusal to bargain on that request.
As has been pointed out, Respondent did not acknowledge or reply to the Union's request
to bargain; and there is no evidence that it either expressed or indicated doubt that the Union
represented a majority of the salesmen. 20 Nor, for reasons stated above, was there any
basis for Respondent 's alleged doubts or confusion, expressed at the hearing, as to the Union's
unit specifications.
This is, therefore, not a case where an employer , entertaining good-faith doubts of a
union's majority status or as to the appropriateness of the unit, rightly withheld recognition
and required the union to establish its representative status in a Board-conducted election.
Cf. N. L. R. B. v. Epstein, et. al. (Top Mode Mfg. Company), 203 F. 2d 482, 484 (C. A. 3),
and cases there cited; Beaver Machine and Tool Company, 97 NLRB 33; Artcraft Hosiery
Company, 78 NLRB 333. Flirthermore, as in Model Mill Company, supra, the record here
shows that, beginning immediately after receipt of the union's request to bargain and con-
tinuing to the very eve of the election, some 3 months later, Respondent engaged in a course
of coercive conduct designed to undermine the union and destroy its representative status
20 Cf. Model Mill Company, Inc., 103 NLRB 1527; Ken Rose Motors Inc., 94 NLRB 868, enf.
193 F. 2d 769 (C. A. 1). Respondent's referral of the request to its attorneys, followed by
the absence of a communication from them, is to be construed, of course, as further evidence
of a refusal to bargain. Ibid.
337593 0 - 55 - 27
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the salesmen. Under such circumstances, Respondent's ignoring of the Union, cf.
Howell Chevrolet Company, 95 NLRB 410 enf. 204 F. 2d 79 (C. A. 9) decided February 26,
1953), and the withholding of recognition were plainly motivated by a desire to gain time in
which to destroy the union's majority and by a rejection of the collective-bargaining principle.
Joy Silk Mills, Inc., 85 NLRB 1263, enf. as mod. 185 F. 2d 732 (CA DC), cert. denied 341
U. S. 914; N. L. R. B. v. Inter -City Advertising Company, 190 F. 2d 420 (C. A. 4), cert den.
342 U. S. 908; N. L. R. B. v. Ken Rose Motors Inc., 193 F. 2d 769 (C. A. 1); N. L. R. B. v
Everett Van Kleeck and Company, Inc., 189 F. 2d 516 (C. A. 2).
Respondent was not, of course, excused from answering the Union's request to bargain by
the fact that a representation petition was filed on the same day it received the request.
Model Mill Company, Inc., supra, and cases there cited at footnote 6.21 Under the circum-
stances here presented, the fact that a representation petition had been filed furnished no
defense to a refusal to bargain. Ibid. Indeed the evidence of Respondent's immediate and
continuous course of conduct directed to undermining the union's representative status,
completely negatives Respondent's picture of itself as one who, unversed and inexperienced
under the Act, passively acquiesced in good faith in a course which had been initiated by the
union. Furthermore, Respondent is obviously not entitled to excuse its actions on the basis
of inexperience, since it immediately referred the union's request to bargain to its counsel.
Respondent also urged at the hearing that the Union had waived its unfair labor practice
charges for the purpose of this proceeding by signing a waiver of such charges on November
12, in Case No. 15-RC-822. The Union's waiver, however, waived its charges only to the
extent that they might constitute a basis for objections to the election in Case No. 15-RC-822,
but not for the purposes of an unfair labor practice proceeding. Aerovox Corporation (Sup-
plemental Decision), 104 NLRB 246; W. C. Nabors Co., 89 NLRB 538, enf. 196 F. 2d 272
(C. A. 5), cert. den. 344 U. S. 865.
It is, therefore, found that Respondent refused to bargain with the Union on August 22, at
a time when the union represented a majority of Respondent's salesmen, and that Respondent
thereby engaged in unfair labor practices proscribed by Section 8 (a) (5) and (1). The fact
that subsequent defections may have occurred is immaterial, of course, since Respondent's
refusal occurred when the Union's status was unimpaired, and since the later defections,
being obviously induced by and attributable to Respondent's unfair labor practices, did not
excuse Respondent from its continuing duty to bargain. Frank Brothers Co.'v. N. L. R. B.,
321 U. S. 702, Medo Photo Supply Co. v. N. L. R. B., 321 U. S. 378; N. L. R. B. v. Carlton
Wood Products Co., 201 F. 2d 863 (C. A. 9); D. Gottleib & Co., 102 NLRB 1708 and cases
there cited at footnote 5.
It is unnecessary to pass specifically on the grounds of the Union's objections to the
election, since the findings herein made dispose of the issues which they raised. It is found,
however, that because of Respondent's coercive conduct, the election was not an expression
of the employee's free choice and that it did not represent their free, untrammeled, and
uncoerced wishes as to collective-bargaining representation. Indeed, no genuine question
concerning representation existed at any time, as the Respondent's refusal to recognize the
Union on and after August 22, was not motivated by good-faith doubts of the union majority
status or of the appropriateness of the unit. Cf. Model Mill Co., supra. The election, was,
therefore, a nullity, and it will be recommended that it be set aside and that the representation
petition and the proceedings thereunder be dismissed.
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Respondent's activities set forth in section III, above, occurring in connection with
Respondent's operations 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 commerce and the free flow thereof.
2. The union is a labor organization within the meaning of Section 2 (5) of the Act.
3. All new- and used-car and truck salesmen at Respondent's New Orleans, Louisiana,
establishment, excluding office and clerical employees, professional employees, guards, and
21 The present case is patently distinguishable from Glass Fiber Moulding Company,
104 NLRB 383, in which the union, having simultaneously requested recognition and filed
a representation petition, thereafter demanded only that the employer agrees to a consent
election. But see the dissenting opinion, and the cases there cited at footnotes 9 and 10.
MIKE PERSIA CHEVROLET CO., INC. 399
all 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.
4. At all times on and after August 22, 1952, the Union has been and now is the exclusive
bargaining representative of Respondent's employees in an appropriate unit.
5. Respondent has violated Section 8 (a) (5) and (1) of the Act by failing and refusing to
bargain with the Union on and after August 22, 1952.
6. By interfering with, restraining, and coercing its employees in their rights guaranteed
in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent did not violate Section 8 (a) (3) and (1) of the Act by discharging and by
refusing to reinstate Bruce Bynum and William Garrett.
[Recommendations omitted from publication.]
APPENDIX A
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 Relations Act, we hereby
notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership , senti-
ments, and activities ; promise benefits for refraining from union activities ; threaten
reprisals for engaging in union activities ; state that we will not sign a contract with the
union; engage in, or pretend to engage in, surveillance of union activities, or attempt
to procure reports on and surveillance of union activities by employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations , to join
or assist Local 270, General Truck Drivers , Chauffeurs , Warehousemen and Helpers,
affiliated with International Brotherhood of Teamsters , Chauffeurs and Warehousemen
of America , AFL, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing and to engage in other concerted activities for the
purposes of collective bargaining and 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 an
agreement requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively , upon request , with Local 270, General Truck Drivers,
Chauffeurs , Warehousemen and Helpers , affiliated with International Brotherhood of
Teamsters , Chauffeurs and Warehousemen of America , AFL, as the exclusive repre-
sentative of all our employees ui the bargaining unit described below, with respect to
rates of pay , wages, hours of employment , and other conditions of employment, and if
an agreement is reached , embody such understanding in a signed contract . The bargaining
unit is:
All new- and used-car and truck salesmen at our New Orleans, Louisiana, establish-
ment, excluding office and clerical employees, professional employees, guards.
and all supervisors as defined in the Act.
All our employees are free to become or refrain from becoming members of the above-
named union or any other labor organization.
MIKE PERSIA CHEVROLET CO., INC..
Employer.
Dated ................ By.............................................................. .....................
(Representative) (Title)
Tliis notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.