Stumpf Motor Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1974

208 N.L.R.B. 431 (N.L.R.B. 1974)

STUMPF MOTOR COMPANY
Stumpf Motor Company, Inc. and General Drivers and
Dairy Employees Union Local No. 563 affiliated
with the international Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 30-CA-2098 and 30-RC-1773
January 16, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On April 25, 1973, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,'- and conclusions of the Administrative Law
Judge with the exceptions and modifications set forth
below.
1. The Administrative Law Judge found that
Respondent's service manager, Friebel, had individu-
al conversations with about 20 of the 31 unit
employees during the pendency of the Union's
representation petition and that during these conver-
sations Friebel made certain statements to employees
which General Counsel alleged in his complaint were
unlawful. For purposes of analysis, the Administra-
tive Law Judge characterized the various alleged
unlawful statements made by Friebel to individual
employees as falling into the following six general
categories:
(1) That collective bargaining would probably
result in loss of profit sharing.
(2) That, if it had to deal with the Union,
Respondent did not have to continue to extend
"shop privileges" to the employees.
(3) That any negotiations between Respondent
i Respondent excepts on procedural grounds to the Administrative Law
Judge's solicitation of a supplemental position from the General Counsel
after the close of the hearing . It claims that the Administrative Law Judge's
action was not authorized by the Board's Rules and Regulations. However,
the issues the Administrative Law Judge sought clarification on were fully
litigated at the hearing and Respondent was provided an opportunity to,
and did, respond to General Counsel 's supplemental statement of position
We therefore find it unnecessary to determine whether or not the
Administrative Law Judge acted within the scope of his authority . since it is
clear here that Respondent was not in any way prejudiced by the
431
and the Union might result in the elimination of
overtime work.
(4) That, if Respondent had to deal with the
Union, benefits would start from zero.
(5) That, if Respondent had to deal with the
Union, all benefits would be negotiable.
(6) That, if Respondent had to deal with the
Union, all benefits would be negotiable, and if
Friebel were in the employees' position, he would
hate to lose certain benefits as a result of such
negotiations.
The Administrative Law Judge interpreted all six
types of statements as containing "the implication
therein that Respondent would seek to deal more
harshly with the employees through a union than it
otherwise would," and that they thereby constituted
threats of reprisal against the employees if they
selected the Union. He accordingly found all six
statements to be in violation of Section 8(a)(1) of the
Act. Respondent excepts to these findings, contend-
ing that its statements were all privileged under
Section 8(c) of the Act.
Having carefully examined the record, we find that
it does not support the Administrative Law Judge's
summary categorization of the various conversations
involved. Consequently, we base our conclusions in
each instance on the particular conversation taken in
context.
Statement 1: General Counsel called five employ-
ees to the stand to testify as to statements made to
them by Friebel during the pendency of the election.
Four of these employees testified that Friebel told
them, in the course of individual discussions, that
collective bargaining would probably result in the
loss of profit sharing. The fifth employee, Kahnt,
testified Friebel told him that he, Friebel, would hate
to lose the profit-sharing plan and that Stumpf,
Respondent's president, would fight the Union all
the way. The Administrative Law Judge credited all
five employees.
We agree with the Administrative Law Judge that
Friebel's statement to Kahnt was unlawful, since, as
found by the Administrative Law Judge, it implied
that unionization would ipso facto result in the loss of
an important benefit. However, when Friebel spoke
to the other employees about the loss of profit
sharing, he stated it would be as a result of
supplemental statement . Accordingly, we find no merit in Respondent's
contentions
2 The Respondent has excepted to certain credibili ty findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products.
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3. 1951) We have carefully
examined the record and find no basis for reversing his findings
208 NLRB No. 68
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations . Moreover , Friebel admittedly prefaced
his remarks by saying that all benefits would be
negotiable if the Union won the election . In that
context, we do not find the statement to have
violated Section 8(a)(1) of the Act. An employer is
free to indicate to his employees what the possible
result of bargaining may be , and to call their
attention to the possibility or even probability that
certain existing benefits may be traded away for
others.
Statement 2: Employees Glasheen and Kahnt
testified that Friebel spoke to them about shop
privileges . Glasheen testified Friebel told him,
among other things, that if the Union came to
represent the employees all existing benefits would
be negotiable , including the privilege the employees
then enjoyed of working on their own cars in
Respondent 's shop. We find nothing unlawful in that
comment for the reasons indicated heretofore under
"statement 1."
The Administrative Law Judge, however, credited
Kahnt 's testimony that , in a third conversation he
had with Friebel about a week before the election,
Friebel told Kahnt, among other things, that he
would hate to lose certain benefits ; that under the
Union all benefits would start from zero ; and that
Respondent did not have to extend to the mechanics
the privilege of working on their own cars in the
shop . Moreover , as noted under statement 1, above,
Friebel had indicated to Kahnt in a previous
conversation , apparently without elaboration, that
profit sharing might be lost . In this context, we agree
with the Administrative Law Judge that the state-
ment could reasonably be taken by the employee as a
threatened loss of benefits to be enacted unilaterally
by the Employer as a reprisal for the employees
having selected the Union.
Statement 3: Friebel admittedly made this state-
ment in one form or another to almost all of the
employees who testified ; in each instance Friebel's
remarks were to the effect that the loss of overtime
would occur through negotiations. All but two
employees admitted that Friebel gave as the reason
that Respondent could not afford to pay time and a
half for overtime. As to the two employees (Herrick
and Glasheen) who testified, Friebel made the
statement without explaining the economic predi-
cate , in both instances the employees admitted that
Friebel prefaced his remarks by saying that under a
union all benefits would be negotiable . Moreover,
the nature of the conversation in other respects was
not threatening . Under these circumstances , we find
that the statement was protected under Section 8(c)
of the Act, since in all cases it was explained on the
basis of economic considerations or was communi-
cated in the context of one of the existing benefits
which could be traded away in the course of
negotiations , and there was no overtone in the
conversation that the action would be taken unilater-
ally by the Employer for retaliatory reasons.
Statement 4.• Employee Kahnt was the only witness
to testify as to this remark. The Administrative Law
Judge credited Kahnt 's testimony that in a second
conversation he had with Friebel , Friebel told him
that under a union there would be a 40-hour shop
and all benefits would start from zero . As noted
under statement 1, above , in the previous conversa-
tion Friebel had with Kahnt , Friebel unlawfully
implied to Kahnt that profit sharing would be lost
with the advent of the Union . In light of this previous
conversation , we agree with the Administrative Law
Judge that the reasonable impression imparted by
Friebel to Kahnt was that benefits would be taken
away as a reprisal should the employees select the
Union. Accordingly, we find the statement in that
context to be violative of Section 8(a)(1) of the Act.
Statement 5: Several of the employees testified that
Friebel referred to the fact that , under a union, all
benefits would be negotiable as a preface to
mentioning specific benefits presently enjoyed by
employees which could be lost as a result of
negotiations . We find nothing threatening in such a
statement , especially since in none of the conversa-
tions was it made in the context of other threatening
remarks. Accordingly, we find it privileged under
Section 8 (c) of the Act.
Statement 6: As the Administrative Law Judge
found, Friebel admitted to having talked to about 20
of the employees about the negotiability of existing
benefits and that , in the course of these conversa-
tions, he stated that if he were in the position of the
employees he would hate to lose certain of these
benefits as a result of collective bargaining. We find
nothing threatening in such a statement , for the
reasons stated heretofore , and would therefore find it
privileged under Section 8(c).
2. The Administrative Law Judge found that
Friebel 's conduct in asking employee Glasheen on
two separate occasions what he thought of the Union
violated Section 8(a)(1) of the Act . We disagree. We
note that Glasheen was a self-proclaimed and known
union adherent, and the "interrogations" in question
appear to have been merely conversation openers,
prefacing remarks which we have found elsewhere
herein were privileged.3 Accordingly, the Adminis-
trative Law Judge's finding of an 8(a)(1) violation
based on this conduct is hereby reversed.
3. We agree with the Administrative Law Judge's
3 B F Goodrich Footwear Company , 201 NLRB 353
STUMPF MOTOR COMPANY
conclusion that the statement made by Respondent's
president to an assembly of employees on August 29,
1972, that in the event of a strike he could lock his
doors and retire to the "North Woods," violated
Section 8(a)(1) of the Act. Since the statement was
not qualified by any reference to economic necessi-
ties, it is clear that Respondent was not making "a
reasonable prediction based on available facts but a
threat of retaliation . . .."'1
4. The Administrative Law Judge based other
independent 8(a)(1) findings on conduct involving
Respondent's withholding from employees the bene-
fit of a warranty rate increase while the election was
pending, and then granting that increase immediately
after the election but while election objections were
pending.
We adopt the Administrative Law Judge's conclu-
sion that Respondent violated Section 8(a)(1) in
withholding from its employees the warranty rate
increase benefit while the election was pending. The
evidence establishes that Respondent had conceived
the plan to provide an increase in the rate for
warranty work performed by its employees before
the advent of the Union. Thus, at the meeting which
Stumpf, Respondent's president, held with the
employees on May 11, prior to the commencement of
the Union's campaign, Stumpf told the employees
that Respondent would be lowering their percentage
rate somewhat: but, at the same time, he indicated
that he would attempt to get Ford Motor Company's
assent to an increase in the price that Respondent
could charge Ford for warranty work. (The increased
rate would, if passed on to employees, exactly offset
the amount the employees would lose from the lower
percentage rate on warranty work.)
As found by the Administrative Law Judge,
Respondent thereby implicitly informed the employ-
ees he would pass on the increase, if and when it was
approved by Ford. Respondent's intention in this
regard is further evidenced by statements in its July
31 letter to union counsel in which Respondent
stated it intended "to implement the increases" and
would "act accordingly" if it did not hear from the
Union within 7 days. In late July, Respondent was
notified that Ford had approved its request and, on
August 1, commenced charging Ford on the basis of
the higher rate. But it did not, in accordance with its
stated intention, then pass on the benefit of that
increase to the employees. On August 28, it explained
to employees it had not done so because: (1) it
believed the law forbade it from granting the benefit
4 NLRB v Gtssel Pa: king Co, Inc, 395 U.S 575,618(1969).
s The Gates Rubber Company, 182 NLRB 95, McCormuk Longmeadow
Stone Co, Inc, 158 NLRE 1237.
6 Cf Dan Howard Mfg Co., 158 IN LRB 805, enfd. in relevant part 390
F 2d 304 (C.A 7, 1968). International Ladies' Garment Workers' Union,
AFL-CIO, 142 NLRB 82. enfd. in relevant part 339 F.2d 126 (C A 2,
433
during the pendency of the Union's petition, absent
the Union's consent; and (2) the Union would not or
did not consent.
Respondent's asserted belief that it could not pass
on the increase during the pendency of the Union's
petition is clearly erroneous. It is well settled that an
employer's legal duty during the pendency of a
representation petition "is to proceed as he would
have done had the union not been on the scene." 5
Furthermore, it would appear from the undisputed
facts that the Union did acquiesce when Respondent
advised it that it planned to grant this benefit and
would effectuate, this plan unless it heard from the
Union in 7 days, since the Union voiced no
objections to Respondent's passing on the increase.
Under these circumstances, we conclude that Res-
pondent's suspending of the promised increase and
blaming that suspension on the Union interfered
with the election and violated Section 8(a)(1) of the
Act.6
We do not, however, find unlawful Respondent's
grant of the increase on the day after the election.
The same considerations which would have allowed,
and indeed required, Respondent to pass on the
increase during the pendency of the Union's repre-
sentation petition would similarly apply in the
election objections period.? 'We therefore do not
adopt the 8(a)(1) finding of the Administrative Law
Judge based on Respondent's payment of the
increase.
5. Member Penello loins Member Fanning in
adopting the Administrative Law Judge's conclusion
that Respondent violated Section 8(a)(1) of the Act
by Friebel's advising employees Hartzheim and
Herrick that their requests for individual merit
increases had to be denied because of the Union's
petitions In so finding they note that these employ-
ees had already received the increases promised them
when they were hired (although they were unaware
of it), and were not due any other increases at any
time here relevant. While Friebel could have given
this as the reason for withholding the increases,
instead he chose to indicate to the employees that the
pendency of the Union's petition was the only reason
for his not granting their requests. Viewed in the
context of Respondent's attempt to similarly capital-
ize on its withholding of warranty increases, the plain
implication for the employees was that the Union's
presence was the only obstacle to the realization of
these benefits.) In so doing, Respondent interfered
1964).
7 See Dan Howard Mfq Co. supra, In. 6
8 In addition to the evidence set out by the Administrative Law Judge,
they note that Friebel admitted to having told these employees that "as soon
as the election was over , we would give them a raise, as soon as we could."
9 Pacific Southwest Airlines, 201 N LRB 647
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the employees' Section 7 rights in violation of
Section 8(a)(1) of the Act.10
6. To the extent that the election objections are
supported by the conduct found violative of Section
8(a)(1) herein, it follows, and we find, that the
election objections should be sustained and the
election set aside. However, we do not find Respon-
dent's unfair labor practices to have been of so
pervasive a character as to warrant a judgment,
under Gissel standards, that use of the Board's
traditional remedies could not insure a fair rerun
election, and that the Board should, accordingly,
accept the prepetition authorization cards as a more
reliable index of employee choice. Respondent's
conduct in withholding the warranty rate increase
was largely dissipated by Respondent's grant of that
benefit shortly after the election. Respondent's error
with respect to the increase was to a large extent one
of timing, and a misunderstanding and perhaps
misrepresentation of what was required or permitted
under Board law. The remaining unfair labor
practices relate to management statements which, we
have found, exceeded the bounds of privileged
speech. The most damaging of the statements was
that made by Stumpf when, during the delivery of
otherwise privileged remarks, he referred to his
financially secure position, and indicated that he
"could retire to the North Woods" in the event of an
economic strike. Even as to this statement, although
we agree that it interfered with the employees' free
choice in the election and violated Section 8(a)(1), we
do not believe that its restraining effect on employ-
ees' choice would survive our normal injunctive
order in the event a new election were to be held. We
do not regard Respondent's preelection description
of action it might take if faced with a future strike
over bargaining demands to be equatable, in terms of
lingering impact, to an employer's bald preelection
threat to terminate operations once a union is
selected. We note further, in connection with
Stumpf's remarks, that although General Counsel
questioned several witnesses who were present at the
meeting as to what was said, only two could
remember that Stumpf even made the statement.
Accordingly, we find issuance of a bargaining order
inappropriate" and shall dismiss the 8(a)(5) and (1)
allegations of the complaint.
THE REMEDY
In light of our findings herein, we shall modify the
tO Chairman Miller would not find a violation here In his view, Friebel's
response to the employees' request for merit increases went no further than
to properly state the law Hildebrand Company, 198 NLRB No 96. Unlike
the warranty rate increase situation, he notes that no further merit increases
were specifically scheduled or promised at the time of these requests.
11 Olin Conductors, Olin Mathreson Chemical Corporation, 185 NLRB
remedy framed by the Administrative Law Judge to
conform to the violations found and shall also direct
that the Regional Director for Region 30 conduct a
second election at such time as he deems, that the
circumstances permit a free choice of bargaining
representative.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Stumpf Motor Company, Inc., Appleton, Wisconsin,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Warning, or implying to, employees that the
advent of the Union would automatically result in
the loss of certain existing benefits, or that Respon-
dent may take away existing benefits in retaliation
for the employees having selected the Union.
(b) Threatening to terminate operations if the
employees were to engage in a strike.
(c) Denying benefits to its employees, which would
otherwise have been granted, because of union
activity.
(d) Announcing the withholding of benefits in the
form of individual merit increases in such a manner
as to leave with the employees the impression that
the obtaining of such benefits is conditioned upon
the employees' rejection of the Union.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at Respondent's Appleton, Wisconsin,
establishment copies of the attached notice marked
"Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 30,
after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
467
ix In the event that this Order is enforced by a Judgment of a United
States Court of Appeals . the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read " Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
STUMPF MOTOR COMPANY
what steps Respondent has taken to comply here-
with.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with try colleagues to the extent that they
affirm the Administrative Law Judge's 8(a)(1) find-
ings as to Respondent's many threats of loss of
benefits, its threat permanently to close down the
plant in the event of a strike, and its withholding of
the warranty rate increase during the pendency of
the election. I also agree with Member Penello in
finding that Respondent violated Section 8(a)(1) with
respect to the withholding of merit increases.
Contrary to my colleagues, I would, for the reasons
so cogently explicated by the Administrative Law
Judge, adopt all of his 8(a)(1) and 8(a)(5) findings
and issue a Gissel bargaining order in view of the
totality of Respondent's flagrantly coercive conduct.
In my judgment, such a bargaining order would be
amply warranted even on the basis of the majority's
findings concerning Respondent's extensive unlawful
conduct, particularly the threat to terminate plant
operations, which would make it extremely unlikely
that traditional remedies will suffice to insure the
holding of a fair election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To ref:ain from any or all these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT threaten to close our business if
you should engage in a strike.
WE WILL NO I' warn you or try to lead you to
believe that bargaining with a union will necessar-
ily result in the loss of any of your present
benefits.
WE WILL NOT deny you benefits, which we
would have otherwise granted, because of union
activity.
435
WE WILL Nor announce the withholding of
merit increases in such a way as to lead you to
think that obtaining such benefits can only be
accomplished by rejecting the Union.
WE WILL Nor in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form, join, or assist any labor organization, to
bargain collectively, through representatives of
their own choosing, and to engage in any other
concerted activities for the purpose of collective
bargaining or other mutual aid or to refrain from
all such activities.
STUMPF MOTOR
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203. Telephone 414-224-3861.
DECISION
SIDNEY SHERMAN, Administrative Law Judge: The
instant charge was served on September 8, 1972,1 the
complaint issued on November 17, and the case was heard
on December 20 and 21. The issues litigated involved
alleged violations of Section 8(a)(1) and (5). Briefs were
filed by Respondent and the General Counsel.2
Upon the entire record,3 the following findings and
recommendations are made:
I. RESPONDENT'S OPERATIONS
Stumpf Motor Company, Inc., herein called Respondent,
is a Wisconsin corporation , engaged in the sale and
servicing of new and used automobiles at its establishment
in Appleton, Wisconsin. It annually derives gross income
in excess of $500,000 and purchases from out-of-state
sources goods valued at more than $50.000. Respondent is
engaged in commerce under the Act.
I All dates are in 1972, unless otherwise indicated.
2 After the filing of formal briefs, the General Counsel , in response to a
request for clarification . submitted a statement of his position with regard to
one of the allegations of the complaint See the General Counsel's letter of
April 6, 1973.
l For corrections of the transcript and certain evidentiary rulings, see the
orders of March 30 and April 10, 1973. Respondent's motion of April 16,
1973, for reconsideration of part of the latter order is hereby denied.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNION
General Drivers and Dairy Employees Union Local No.
563 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union, is a labor organiza-
tion under the Act.
III. THE MERITS
The issues litigated, as reflected in the pleadings, the
hearing, and the parties' briefs, may be summarized as
follows:
1. Whether Respondent engaged in unlawful interroga-
tion.
2. Whether Respondent violated Section 8(a)(1)
through threats made by Service Manager Fnebel of loss of
various benefits if the employees selected the Union as
their representative.
3. Whether Respondent on August 29 threatened to
terminate its operations because of the employees' union
activity.
4. Whether Fnebel unlawfully attributed the withhold-
ing of merit raises to the advent of the Union and whether
the actual withholding of such raises was unlawful.
5. Whether Respondent unlawfully promised employ-
ees raises in return for rejection of the Union.
6. Whether Respondent on September 1 unlawfully
granted wage increases as a reward for the employees'
rejection of the Union in a Board election.
7. Whether Respondent violated 8(a)(1) by letters to
the employees placing the onus on the Union for
preventing Respondent from granting raises.
8. Whether Respondent violated 8(a)(5) and (1) by
refusing to bargain with the Union.
A. Sequence of Events
On May 1, Respondent took over the instant operation.
The first union meeting was held on May 30 and, by June
2, 18 of the employees had signed union authorization
cards and applications for union membership. On June 5,
the Union filed with the Board a petition for an election
and at the same time sent Respondent a letter demanding
recognition. For reasons not here relevant, Respondent
refused to accept delivery of that letter. On June 14, two
union representatives visited Respondent's president,
Stumpf. Although there was conflicting evidence, to be
discussed below, as to what occurred at that meeting, it is
clear that Respondent did not then, nor at any time
thereafter, recognize the Union. On August 3, 1972, the
Board's Regional Director issued a Decision and Direction
of Election, and an election was held on August 31, which
the Union lost by a vote of 24 to 8. Objections to the
election were filed on September 1.
During the preelection period, Respondent withheld
merit raises to individual employees, citing the pendency of
the Union's petition, and withheld an increase in the
employees' pay rate for certain work until the day after the
election. Also, during the preelection period, Respondent's
service manager , Friebel, spoke to the bulk of the
employees in the unit about the disadvantages of union
representation , while at the same time Respondent was
sending to the employees a series of 13 letters on that
subject. On August 29, Stumpf delivered to the employees
a speech urging rejection of the Union in the forthcoming
election.
B. Discussion
1. Interrogation and threats by Friebel
Understanding of some of the matters discussed below
may be aided by explaining at this point Respondent's
mode of compensating its mechanics and body men, who
constituted 12 of the 31 unit employees. The record
indicates that such compensation was determined as
follows:
The pay of a mechanic or body man for a particular job
was a given percentage (45 percent) of the price set on the
job by Respondent. That price was determined by
multiplying two factors-(l) the number of "hours"
allowed for completing that job by an industry manual,
which did not necessarily coincide with the time actually
spent on the job, and (2) the "hourly" rate applicable to
such job, which varied depending on whether the work was
to be paid for directly by a customer (retail rate) or was
done for the account of Respondent (internal rate), or for
that of the manufacturer in servicing a warranty (warranty
rate). To illustrate , if the time allowed in the foregoing
manual for an engine overhaul on a customer 's car was 5
hours and the applicable hourly rate was $10, the price of
the job would be $50, and the compensation paid therefor
to the mechanic would be 45 percent of $50 or $22.50,
regardless of how many hours were actually spent on the
job. Although Respondent's shop employees sometimes
worked more than 40 hours a week, they received no
premium pay for such extra hours , and, as the ensuing
discussion will reveal , it was generally assumed that, if the
Union came to represent the employees, it would demand
that the mechanics and body men be compensated on the
basis of hours actually worked and that they , as well as the
other employees, receive premium pay for overtime.
Glasheen , a mechanic, testified that late in June Service
Manager Friebel asked him what he thought about the
Union and stated that, if the Union came to represent the
employees, all existing employee benefits would be
negotiable , including Respondent's profit-sharing plan and
the privilege the employees then enjoyed of working on
their own cars in Respondent 's shop , and that as a result of
negotiations overtime work could be eliminated , in which
case Respondent would hire new employees to take care of
any excess work. Glasheen added that at a later point in
the union campaign Friebel asked him if he had given any
more thought to the Union.
Friebel testified , without contradiction, that Glasheen
was wearing a union button during their first conversation
but did not dispute any of the foregoing testimony about
the subject matter of their conversation. It is accordingly
found that he made the remarks ascribed to him by
Glasheen.
Kahnt , who was no longer in Respondent's employ,
testified that in mid-June, while employed by Respondent
as a mechanic, he was engaged by Friebel in a conversa-
STUMPF MOTOR COMPANY 437
tion, in the course of which he referred to various employee
benefits, including profit sharing and group life insurance
and declared that he would hate to lose the profit-sharing
plan and that Stumpf would fight the Union all the way.
Kahnt added that about 2 weeks later Friebel told him that
under the Union "this will be a forty hour shop" and "all
benefits would start from zero." According to the witness,
in a third conversation about a week before the election
Friebel observed -hat he would hate to lose the various
employee benefits; that under the Union the employees
would work only 40 hours a week; that all benefits would
"start from zero"; that Respondent did not have to extend
to the mechanics the privilege of working on their own cars
in the shop; and t.iat, in case of a strike, the strikers could
be replaced and they would lose all benefits such as profit
sharing. Under cross-examination, the witness conceded
that Fnebel might have explained that overtime work
would be eliminated under the Union because Respondent
could not afford to pay time-and-a-half for overtime.
Friebel's version of the first conversation was that he
explained the profit-sharing plan to Kahnt, stating that
under the Union this would be negotiable. He denied that
he warned that Respondent would fight the Union all the
way. As to the second conversation, Fnebel's version was
that he indicated that, in case of representation by the
Union, the existing profit sharing and vacation benefits
would be negotiable; that, with regard to overtime, he
explained only that, if the mechanics were to go on an
hourly rate, it would be difficult for Respondent to pay
time-and-a-half for overtime; and that he made no
reference to benefits starting from zero. According to
Friebel, in the third conversation he merely reviewed the
various employee benefits, including profit sharing, paid
holidays, and the employees' privilege of working on their
cars, and indicated that they were all negotiable items and
that, with union representation, the employees might get
more, the same, or less. Friebel acknowledged that he told
Kahnt that, if he were in the employees' position, he would
hate to lose certain benefits, but that this was said in the
context of a statement that they were negotiable items. He
admitted warning Kahnt that in case of a strike all benefits
would stop.
Kahnt's demeanor made a singularly favorable impres-
sion. Moreover, unlike Friebel, he no longer had any
apparent interest in the outcome of this proceeding.
Accordingly, he is credited wherever his testimony con-
flicts with Friebel's and it is found that in the course of the
foregoing conversations, all of them admittedly initiated by
Friebel, Friebel reviewed various benefits currently en-
joyed by the employees with particular emphasis on the
profit-sharing plan, and stated that he would hate to lose
that as well as other benefits; that, if Respondent had to
deal with a Union, all benefits would start from zero; that
Respondent did not have to give the mechanics the
privilege of working on their own cars in the shop; and that
overtime work would be eliminated under a union.
However, since Kahnt did not take direct issue with
Friebel on that score, it is found that, in warning of the
elimination of overtime work, Friebel indicated that that
would come about, if, as a result of negotiations with the
Union, Respondent had to pay time-and-a-half for
overtime, which it could ill afford.
Paris, a mechanic, testified that during the first 2 weeks
in June Friebel advised him that, if the employees went on
an hourly rate, Respondent would adopt, or would
probably adopt, a 40-hour workweek and any "extra" work
would probably be farmed out; and that Respondent
would abolish profit sharing, if it had to deal with the
Union. Paris added that in a second conversation, in mid-
August, Friebel implied that under a union there probably
would be no profit sharing. Under cross-examination, Paris
acknowledged that Friebel said that with union representa-
tion the employees might lose profit sharing, and that, if the
employees went on an hourly rate, Respondent probably
would not be able to afford premium pay for overtime and
for that reason might have to eliminate overtime work and
farm out the extra work, and that in the two conversations
Friebel might have said that all existing benefits, including
the profit-sharing plan, were negotiable.
Friebel's version was that he spoke to Paris in July and
August; that in July he merely reviewed the employees'
benefits, remarking that, if the Union were to represent the
employees, profit sharing would be negotiable. Friebel
added that in August he told Pans that if, at the instigation
of the Union, Respondent adopted an hourly rate, it would
be difficult for Respondent to pay time-and-a-half and that
under the union vacation benefits and the employees'
existing "shop privilege" would be negotiable.
It appears from the foregoing that Friebel and Pans were
in substantial agreement that in their two conversations
during the preelection period Friebel stated that various
employee benefits, including profit sharing were negotia-
ble, and that, if the Union succeeded in obtaining an
hourly rate for the employees, it would be difficult for
Respondent to bear the cost of a premium rate for
overtime work. In view of Pans' vacillation as to the
precise terms of Friebel's warning regarding loss of profit
sharing, the record does not warrant a finding that there
was such a warning.
Herrick, a mechanic, testified, without contradiction,
and it is found, that a few weeks before the election Friebel
told him that under a union all benefits would be
negotiable, including overtime, and that this might result in
elimination of overtime work.
Schoen, a body repair man, testified that during the
election campaign Friebel told him that, if the Union
obtained an hourly rate for the shop employees, they
probably would work only 40 hours a week, because
Respondent could not afford premium pay for overtime;
and that all benefits would be negotiable, if the Union won
the election, but the employees would probably lose profit
sharing.
Friebel testified that he told Schoen only that all
benefits, including profit sharing, would be negotiable if
the Union won the election, and denied saying that the
employees would lose profit sharing. He did not dispute
Schoen's testimony about overtime. Insofar as there is any
conflict, Schoen is credited on the basis of demeanor and it
is found that, after alluding to the negotiability of profit
sharing, Friebel indicated that any bargaining with the
Union would probably result in the loss of that benefit,
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that, if an hourly rate was obtained through negotia-
tions, Respondent would probably abolish overtime
because of its prohibitive cost.
Friebel admitted talking to about 20 employees about
the negotiability of existing benefits and that he stated in
such discussions that, if he were in their position, he would
hate to lose various such benefits as a result of collective
bargaining.
To sum up, it appears that Friebel's statements, which
are under attack here, fall into the following categories:
(1) That collective bargaining would probably result in
loss of profit sharing.
(2) That, if it had to deal with the Union, Respondent
did not have to continue to extend "shop privileges" to the
employees.
(3) That any negotiations between Respondent and the
Union might result in the elimination of overtime work.4
(4) That, if Respondent had to deal with the Union,
benefits would start from zero.
(5) That, if Respondent had to deal with the Union, all
benefits would be negotiable.
(6) That, if Respondent had to deal with the Union, all
benefits would be negotiable and, if Fnebel were in the
employees' position, he would hate to lose certain benefits
as a result of such negotiations.
Statements (1), (2), and (3), above, are clearly threats
that, if Respondent had to deal with the Union, it would
take bargaining positions that would or might result in loss
of certain benefits. Absent any representation by Friebel
that such bargaining positions would be dictated by
economic considerations, the foregoing statements were
tantamount to assertions that Respondent would take
those positions merely because of the employees' prefer-
ence for collective, rather than individual, action, and
would demand the reduction or elimination of existing
benefits, which it would have been content to retain,
absent a union. In view of the implication therein that
Respondent would seek to deal more harshly with the
employees through a union than it otherwise would, such
statements constituted threats of reprisal or attempted
reprisal against the employees, if they forced Respondent
to engage in collective bargaining. It follows that Respon-
dent thereby violated Section 8(a)(1).
As for (4), above, the Board has frequently found to be
coercive such a remark, as well as the equivalent warning,
that bargaining would start from scratch,5 such warning
being regarded as "a threat of reprisal should the
employees select the Union,"6 it being pointed out that the
effect of such warnings was to contrast "the detriment
attached to the advent of a union" with "the converse
benefits of the continuation of existing benefits if the plant
remained non-union." 7
With regard to (5), above, it would seem that, where an
4 This was said to Herrick and Glasheen As noted above, others were
told that Respondent might have to eliminate overtime because it could not
afford premium pay In view of this explanation , the latter statement is not
deemed a threat but only a prediction of economic consequences
5 Textron, Inc, 199 NLRB 132; Olin Conductors, Olin Mathieson
Chemical Corporation, 185 NLRB 467; Kaiser Agricultural Chemicals, Kaiser
Aluminum & Chemical Corporation, 187 NLRB 661, enfd 473 F.2d 374 (C A
5, 1973), Raytheon Company, 160 NLRB 1603 ; Astronautics Corporation of
America, 164 NLRB 623, Aerovox Corporation of Myrtle Beach, South
employer stresses to his employees, in the context of a
union campaign, that existing benefit levels are "negotia-
ble," it is fair to infer that his purpose is not merely to
remind them that such items are a mandatory subject of
bargaining but rather to warn them that in any union
negotiations he would be free to negotiate for a curtailment
of existing benefit levels and that such warning would be
calculated to instill in the employees an apprehension that
he would, in fact, negotiate in that fashion. Thus, the
connotation here is, as in the case of (4), above, that
Respondent would bargain for a downward revision of
existing benefit levels and it is therefore found that the
remark under consideration was unlawful .8
Since statement (6), above, which Friebel admittedly
made to the bulk of the employees in the unit , spelled out
what was merely implied in (5) (that collective bargaining
entailed a risk of loss of existing benefits), it was a fortiori
unlawful.
There remains to be considered the issue with regard to
the interrogation of Glasheen. While the fact that he was
displaying a union button tends to detract from the
coercive effect of Fnebel's initial query about Glasheen's
union sentiments , the recurrence to the same subject in the
second conversation manifested an undue preoccupation
therewith on the part of Respondent. That circumstance,
coupled with the coercive warnings to Glasheen that, if the
employees chose to deal with Respondent through the
Union they risked loss of overtime work and that all
existing benefits would be negotiable , warrants a finding
that the interrogation violated Section 8(a)(1).
2. The threat by Stumpf
On August 29, at a meeting attended by all unit
employees, Stumpf delivered a speech in which he urged
rejection of the Union. In the course of that speech he
admittedly made some reference to the possibility of his
retirement. According to Theimer, who was corroborated
in this regard by Glasheen, Stumpf said that, if there was
an economic strike, his own financial situation was such
that he could lock his doors and go into retirement.
Stumpf's version was that he said only that he did not have
to stay in business, that he was financially secure and could
retire to the "North Woods," and he denied that this
remark was related to any discussion of economic strikes,
insisting that he was attempting only to make the point
that his dedication to his Appleton operation was not
motivated by any financial considerations, since he could
afford to retire if he chose to do so. However, when asked
whether he make any reference to an economic strike in his
speech, Stumpf became vague and evasive. Also, when, in
an effort to resolve an apparent ambiguity in his foregoing
testimony, he was asked whether he made it clear to the
employees that he, in fact, had no intention of retiring,
Carolina, 172 NLRB 1011.
" Aerovor Corporation of Myrtle Beach, supra
Olin Mathieson Chemical Corporation, supra
s It may be noted that a statement that existing benefits would be
negotiable is no less coercive , because the employer appends thereto (as
Friebel claims he did in his remarks to Kahnt and as Respondent did in
some of its letters to the employees) the comment that negotiations might
result in a higher , lower, or unchanged level of benefitso Kaiser Aluminum &
Chemical Corporation, supra, C R Hills, Division of155 NLRB 1163,1176-77
STUMPF MOTOR COMPANY
Stumpf at first avoided a direct answer and only after the
question was repeated several times did he asseert that he
did so advise the employees.
Fnebel testified that in the August 29 speech Stumpf said
that he did not have to operate his business and could
retire to the "North Woods," but was unable to say
whether or not Stumpf was talking about strikes at that
time, and, when asked specifically whether Stumpf said
that, in the event of a strike, he could close down his
business, Friebel pleaded lack of recollection.
It is clear from the foregoing that on August 29 Stumpf
told the employees that he did not need to stay in business
and could afford to retire. Moreover, on the basis of
demeanor, and, in view of Stumpf's vagueness and
evasiveness and the failure of Friebel, who was Stumpf's
alter ego in the antiunion campaign, to corroborate him on
critical points, credence is given to the versions of
Glasheen and Theimer, and it is found that in his speech
Stumpf stated that, in the event of a strike, he could lock
his doors and retire from business .9
It is found that by Stumpf's threat to terminate
Respondent's operations, if the employees engaged in an
economic strike. Respondent violated Section 8(a)(1) of the
Act.
3. The wage increases
a. The warranty rate increase
As already explained, Respondent paid its mechanics
and body men a fixed percentage of the "price" assigned
by Respondent to a particular job, which price was
determined by multiplying the number of hours allowed
for that job in an industry manual by a rate, which varied
with the identity of the party for whose account the repairs
were made . If the repairs were chargeable to a customer,
such rate was termed the "retail rate." If the work was
done on a vehicle owned by Respondent, as in the case of
an auto being held for resale, the rate was called the
"internal rate." If the work was done for the account of the
Ford Motor Co., in servicing its manufacturer's warranty,
the rate charged by Respondent to Ford for such work was
called the "warranty rate."
Under Respondent's predecessor, the mechanics were
paid 50 percent of the job price on all work. On May 11,10
Stumpf met with the employees and announced that the
foregoing percentage would be reduced from 50 to 45 and
the "internal rate" would be reduced from $9 to $8, but the
retail price would be raised from $9 to $10 and he would
try to obtain assent by Ford to an increase in the warranty
rate from $9 to $10. An application filed on May 25 for
approval of such an increase was rejected, but an amended
application filed on June 8 was granted late in July.
Although on August l it began to charge Ford the higher
warranty rate, Respondent did not immediately pass on to
the shop employees the benefit of that rate but did engage
9 Wiegand, a mechanic, called by Respondent, expressed doubt that
there was any reference to a stoke in the August 29 speech and stated that
the impression he received from Stumpf 's reference to the "North Woods"
was that he would rather be there than have to deal with all the problems he
had encountered in the acquisition of his Appleton operation . While due
439
in correspondence with the Union and the employees
about the matter. Under date of July 31, Respondent wrote
the Union's counsel as follows:
As we have previously discussed, the Petition of
Stumpf Motor Company, Inc. to Ford Motor Company
to increase the rate paid for warranty work has been
reviewed and approved by Ford Motor Company in
the amount of $9.50. This represents an increase of $.50
per hour and the corresponding increase to all
employees of Stumpf Motor Company, Inc., based on
45% of the flat book rate adopted by the Ford Motor
Company.
Because this increase was requested prior to the
commencement of the critical period, it is my opinion
that the employer may institute this increase. Nonethe-
less, I am aware of the restrictions surrounding the
conduct of the parties during this period and feel that it
would be to our mutual advantage to advise you of our
intention to implement the increases for warranty work
within a reasonable length of time after your receipt of
this letter.
In the event you have an objection to effecting this
increase, please advise us as of your earliest opportuni-
ty so that we may be made aware of your position. In
the event we do not hear from you within 7 days of the
date of this letter, we will assume that you have no
objections to implementation of the increase and
proceed accordingly.
On August 7, not having received any reply from the
Union, Respondent advised its employees by letter that
Ford had agreed to an increase in the warranty rates and
that Respondent had "requested permission" from the
Union to pass this increase on to the employees but had
not received any reply. In a letter dated August 18,
Respondent again alleged that it had asked the Union to
"permit" Respondent to pass on the increase in the
warranty rate but had not as yet received any answer. And,
in a letter of August 27, in which it referred to the new
warranty rate, Respondent noted:
Still no answer from the Teamsters to release this
increase to you.
In a letter of August 29, Respondent told the employees:
... we just cannot release our new warranty rates or
we are guilty of an unfair labor practice. We cannot
change our internal rate for the same reason , we are all
in a freeze.
Finally, on the day after the election, Respondent
granted an increase in pay based on the new warranty rate,
and, although objections to the election were filed the same
day, that increase remained in effect.
The General Counsel contends that Respondent violated
Section 8(a)(1) of the Act "in first withholding the increase
consideration has been given to such testimony . the record as a whole is
deemed to preponderate in favor of the findings in the text.
io Although it was not until June 13 that Respondent assumed full legal
responsibility as owner of the Appleton dealership, Stumpf apparently took
over the actual management as early as May 1.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then granting it during the objections period."
Respondent defends on the ground that it had made no
express commitment before the advent of the Union as to
when it would pass the increase on, if at all. In this
connection, Respondent contends that in his May II
speech Stumpf did not in so many words promise to pass
on to the employees the benefit of any increase he might
obtain in the warranty rate, and that there was no uniform
past practice of passing such a benefit on to the employees
immediately. However, Stumpf admittedly intended at all
times to pass that benefit on to the employees and that was
the clear implication of his speech, since there was no
apparent point to his discussing with the employees a
possible increase in the warranty rate, unless it would
affect their earnings. Moreover, if one is to credit the
statement of Respondent's counsel in the July 31 letter,
quoted above, Respondent was disposed to pass that
increase on early in August.
It is true that on May II Stumpf did not promise the
employees in so many words that the increase in the
warranty rate would be passed on to them as soon as it took
effect, and the evidence as to Respondent's past practice in
that regard is inconclusive. ii It is presumably Respon-
dent's position that under those circumstances the employ-
ees had no reason to expect a raise in August on the basis
of the new warranty rate and so could not have been aware
that one was being withheld. Thus, to put it in the
vernacular, Respondent's position is that what the employ-
ees did not know could not hurt them. Moreover, there is
the additional consideration that, not having made a
specific commitment before the Union's advent as to the
timing of the employees' "warranty raise" and there being
at least arguably no uniform past practice in that regard,
Respondent would have been hard put to justify granting
the raise during the election campaign and was entitled to
withhold what it could not lawfully grant. These considera-
tions might well have warranted Respondent's withholding
the raise had it kept quiet about the matter. Instead,
Respondent chose to publicize such withholding and make
it an issue in the election campaign.
In the recent case of Pacific Southwest Airlines, 201
NLRB 647, the Board found a violation of Section 8(a)(1),
where an employer during a union organizational cam-
paign canceled a previously announced raise, believing
that it would be unlawful to grant it, and notified the
employees of the reason for its action. In its decision in
that case, the Board recognized that during a union
campaign an employer is entitled to withhold a raise which
he may not lawfully grant, citing The Great Atlantic &
Pacific Tea Company, Inc., 192 NLRB 645, where, during a
union campaign, the employer withheld a pay raise,
because it could not be fully justified on the basis of past
practice. The Board added:
i i Stumpf admitted that all increases in warranty rates since 1956, when
he took over the operation of Respondent , were passed on "eventually," but
he pleaded ignorance as to any further details As to the practice of
Respondent 's predecessor at Appleton, some of whose employees were
acquired by Respondent, one of them , Wiegand, testified that over an 18-
year period there was only one warranty increase that was not passed on
immediately
i2 See McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237 In its
brief , Respondent attributed its failure to grant the raise during August,
However, in the latter cases, full explanation of the
reasons for the withholding along with the assurance of
future consideration of the withheld benefits, notwith-
standing the outcome of the union's election campaign,
serve to dissipate any assumption that the employees
may or may not have that the union's presence is the
sole obstacle to the ultimate realization of the promised
benefits.
The Board then pointed out that in the case at bar the
"cancellation announcement was unaccompanied by any
assurances of future consideration [ n ]or predicated on any
economic considerations"
In Ring Metals Company, 198 NLRB No. 143, after
assuring the employees that serious consideration was
being given to an increase , the Respondent announced that
its hands "were tied" because of the filing of a union
election petition and unfair labor practice charges and
there would be no increases until those matters were
settled. On these facts, the Board found that the Respon-
dent 's "entire course of conduct , with respect to the union,
was calculated to lead employees to believe that wage
increases would be forthcoming upon rejection of the
Union" and that the presence of the Union was the only
obstacle to a raise.
In The Great Atlantic & Pacific case , supra, in finding
lawful the employer 's decision not to grant an increase
during a union campaign , the Board said:
In reaching this conclusion we specifically note that
there is no evidence to indicate that Respondent in any
way sought to capitalize on the absence of a wage
increase by connecting the absence with the Union or
the employees ' support of the Union.
It is clear from the foregoing that , in determining the
propriety of an employer's announced withholding of a
wage increase during a union campaign , the Board
considers whether the employer's entire course of conduct
reflects an intent to foment antiunion sentiment or merely
a desire to avoid the appearance of "buying" votes, and
that an important consideration in that regard is whether
the employer gave the employees affirmative assurance
that their designation of the union would not affect the
employer' s willingness to grant the increase.
Here, not only is there no evidence of any such assurance
but it is clear , in addition, that Respondent made an
intensive effort to convince the employees that the Union,
contrary to the fact, was deliberately preventing Respon-
dent from granting the increase . Such a studied effort to
shift to the Union the onus for the postponement of the
raise could have had no purpose other than to subvert the
employees ' allegiance to the Union.12
It follows that , by manipulating the issue of the raise on
despite the absence of any objection from the Union, to the advice of
Herrling, who was then Respondent 's labor relations counsel, that it would
be unwise to do so because of the proximity of the election Although
Herrling testified that he so advised Respondent , no explanation was
offered for the fact that the employees were told only that the raise was
being withheld because of the Union's alleged refusal to authorize it nor was
there any plausible reason given for making that charge against the Union
Moreover, Herrling had considerable difficulty in explaining why he
advised against granting the raise, even though in the July 31 letter another
STUMPF MOTOR COMPANY 441
warranty work 5t) as to discredit the Union and influence
the employees to reject it, Respondent violated Section
8(a)(1).
b. The postelection raise
As already related, on September 1, the day after the
Union's defeat n the election, Respondent granted the
employees a raise based on the increase in the warranty
rate . The Union filed objections to the election on the same
day.
At the hearing, Herding explained that he thought it
proper to pass on the increase at that time because, the
election being over, there was no longer any danger of
influencing it. However, Herrling conceded that he was
aware of the possibility that objections to the election
would be filed and of the Board's rule restricting the
granting of raises during the pendency of objections to an
election. That rule is that during such a period an employer
may not take any action for the purpose of interfering with
the employees' freedom of choice in the event of a new
election.13
The General Counsel contends that Respondent's motive
was to reward the employees for rejecting the Union in the
election, thereby predisposing them to continue to reject
the Union in any future election. There appears to be merit
in that contention. Respondent's handling of the warranty
raise issue before the election, as described above, reflects
a disposition to exploit that issue for the purpose of
portraying the Union as the only obstacle to the granting
of a raise. The same purpose was served by granting the
raise as soon as the Union lost the election. Accordingly,
the inference is amply warranted that it was this disposi-
tion to manipulate the warranty rate issue so as to drive a
wedge between the employees and the Union that
motivated the granting on September 1 of the pay increases
based on the higher warranty rate. Such action was
calculated to insure that the employees would continue to
withhold their support from the Union in any future
election . It follows that, by granting that raise, Respondent
violated Section 8(a)(1).
c. The merit increases
The General Counsel contended that during the union
campaign Respondent unlawfully withheld merit raises
from two employees-Herrick and Hartzheim.
Hartzheim testified that he was hired on June 1 as a
washboy at $1.75 per hour: that Fnebel promised that he
would soon be transferred to undercoating and that he
would be given a raise if his work was satisfactory; that
after about 10 days he was assigned to undercoating; that 2
or 3 weeks later Respondent's bookkeeper told him that he
was being given a raise of 25 cents per hour; that he had
the raise for a week; that Friebel then told him that it was
necessary to rescind the raise because of the union
campaign; and that the raise was never restored, although
he made frequent requests therefor through the preelection
period.
Fnebel's version was that, although Hartzheim was, as
he testified, hired on June 1 at $1.75 an hour, he was in fact
paid $2 an hour from that date. Friebel explained that the
transfer to undercoating was made a few days after June 1,
and he instructed the bookkeeper to raise Hartzheim's rate
to $2 per hour as of June 1. However, Friebel acknowl-
edged that several weeks later Hartzheim asked for another
raise of 25 cents per hour and that Friebel was disposed to
grant it, but Stumpf overruled him, saying Respondent
could not grant the raise "at this time ." Stumpf testified
that he opposed the raise because of the "freeze period."
Since Respondent's personnel records show that Hart-
zheim's rate from his date of hire to his termination date
was $2 per hour, Fnebel's testimony as to the initial
increase is credited. While it appears. therefore, that
Hartzheim was mistaken in his belief that he received a
raise which was rescinded after a week, there was no
dispute that he later sought a 25-cent raise and that this
was denied him, the only reason given being the pendency
of the union campaign. The issue is thus posed, again,
whether Respondent might lawfully notify an employee
that he was being denied a raise because of the pendency
of the Union's petition. It is clear from the authorities
already cited that it may not do so, unless it assures the
employee that it will make the raise available after the
election, regardless of the result thereof. This Respondent
did not do.14
When Herrick was hired on June 12 at $2.25 an hour,
Friebel told him he would be on trial for 30 days and that,
if his work was satisfactory, he would receive a raise.
Although Fnebel admittedly was satisfied with Herrick
after the end of his trial period, his requests for a raise were
rejected by Friebel on the ground that there was a "freeze"
due to the Union.
As in the case of Hartzheim, Friebel insisted that he in
effect gave Herrick a raise during his first week of
employment, explaining that, although he was hired at
$2.25 an hour, Friebel was so favorably impressed with
him even before his first payday that he instructed the
bookkeeper to pay him from the date of hire at $2.50 an
member of his law firm had expressed the view that it would be proper to
grant it, particularly if the Union withheld any objection thereto Construed
most favorably to Respondent, Herrhng's position appears to he that the
Regional Director's action of August 3. in scheduling the election for
August 31, created a special "critical period," during which any raise would
have been unlawful. whether or not the Union acquiesced therein but that
the situation would have been different, if, as was previously expected on
July 31 , the election had been set for a date several months away insofar as
this attributes to the pioximity of the election any special legal sigmficance
in the present context, there is no support for that view in Board precedent
At any rate, it is Ilea- that this explanation for Respondent's change of
heart about granting the raise was never communicated to the employees,
an intensive effort being made instead to convince them that the Union's
putative opposition thereto was the sole reason for the withholding of the
raise
is E.g, Ralph Printing & Lithographing Co, 158 NLRB 1353. General
Electric Company, Batters- Products, Capacitor Department, 163 NLRB 198
14 Respondent contends that, in refusing to grant Hartzheim a second
raise, it was relying on the advice of counsel that such a raise would be
unlawful, unless before the union campaign Respondent had promised to
pay a specific amount by a specific date. However, here, as in the case of the
warranty raise issue, there would be no quarrel with Respondent 's failure to
grant the raise, had it remained silent about the matter , but once an
employer places the onus for withholding a raise on a union campaign, it
becomes incumbent upon him to offer reassurance that the outcome of the
campaign will not affect his willingness to grant the raise. Pacific Southwest
Airlines, supra
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour. Respondent's personnel records confirm this. How-
ever, Friebel acknowledged that Herrick persisted in
requests for another raise after his trial period and he was
put off with the plea that wages were frozen because of the
Union's petition. Thus, Herrick's case is essentially
identical to Hartzheim's and no reason appears for a
different result here.
It is therefore found that, by advising both Herrick and
Hartzheim that their requests for a raise could not be
granted because of the pendency of the union campaign,
without any assurance of future consideration of such
requests regardless of the outcome of the election,
Respondent violated Section 8(a)(1) of the Act.15
4. The objections to the election
On September 1, the Union filed timely objections to the
election alleging that Respondent threatened loss of the
profit-sharing plan, a reduction in the workweek, and loss
of the employees' privilege of working on their own cars in
Respondent's shop, and that Respondent threatened to
close down its establishment and refused to grant "auto-
matic" wage increases and increases promised before the
filing of the Union's petition.
It has already been found that Respondent violated
Section 8(a)(1) by the threats enumerated above and by the
withholding of a raise on the basis of the higher warranty
rate. It follows that by such conduct Respondent interfered
with the election and it will be recommended that it be set
aside.
5. The 8(a)(5) issue
a. The appropriate unit
There is no dispute, and it is found, that the following
unit is appropriate for bargaining:
All auto, truck and used car, mechanics, greasers, body
shop employees, parts department employees, and shop
maintenance men at Respondent's Appleton, Wiscon-
sin, facility, excluding office clerical employees, service
billing employees, service writers, wash rack employees
and supervisors as defined in the Act.16
b. The Union's majority status
It was stipulated that throughout the month of June
there were 31 employees in the unit. Prior to June 5, when
the Union addressed to Respondent a letter requesting
recognition, 18 unit employees had signed (a) cards which
authorized the Union to act as the bargaining representa-
tive of the employees, and (b) an application for member-
ship in the Union, which contained an authorization for
dues checkoff.
Respondent attacks the validity of two of the cards-
those of Nelson and Hermes. However, there is no need to
15 Contrary to the contention in General Counsel's brief, no violation is
found in the actual withholding of the raises to Herrick and Hartzheim,
there being insufficient evidence in the record for finding that any raise was
promised to either of them before the advent of the Union other than that
which he received in his first paycheck Absent such evidence , it is found
that Respondent was entitled to reject their requests for another raise, albeit
not to put the blame on the Union in the manner described above.
pass on that matter, since even without their cards the
Union would have a majority of 16 out of 31.17
It is found that at the time of its bargaining requests in
June the Union was designated by a majority of the
employees in the appropriate unit.
c. The request and refusal
By letter of June 5, the Union transmitted to Respondent
copies of the cards signed by the 18 employees and advised
that a union representative would call upon Respondent on
June 14 to begin contract negotiations for a unit which
included shop employees, but excluded, inter a/ia, parts
department employees. Also, on June 5, the Union filed a
petition for an election in the same unit.
Although, for reasons not here relevant, Respondent did
not accept delivery of the June 5 letter, two union
representatives called on Stumpf on June 14. One of them,
Curtin, testified that, when they referred to the June 5
letter, Stumpf denied receipt thereof; that the witness
showed Stumpf a copy of that letter and announced that
the union agents were there as representatives of the
employees for purposes of collective bargaining; that the
employees' cards were tendered to Stumpf but he refused
to examine them; and that he declared that any further
discussion of the matter would have to be conducted with
his attorney, Myse. The other union agent, Krasniewski,
testified that Stumpf was informed on that occasion that
his visitors were there on behalf of the Union pursuant to
their letter; that they offered to show him the cards; that he
denied receiving the letter; that the witness showed Stumpf
a copy of the letter; and that, after gazing at the letter,
Stumpf again denied receiving it and referred the union
agents to his attorney.
Stumpf's initial version was that there was no discussion
of cards and no request for recognition and that he had no
recollection of the conversation on that occasion other
than a reference by Curtin to the fact that he had bought
some cars from Respondent. Stumpf even professed to
have no recollection of referring the union agents to his
attorney. However, when recalled to the stand, he admitted
that the union agents showed him a letter, denying only
that he read it, and he apparently retracted his previous
categorical denial that they asked for recognition, profess-
ing inability to recall whether they did or not. On the basis
of demeanor and in view of Stumpf's vacillation and
equivocation, I credit the testimony of the union agents
that they explained the purpose of their visit, offered to
show Stumpf the cards, and did show him a copy of the
demand letter, and that he referred them to his attorney.
Six days later, at the hearing on the Union's petition,
Respondent, inter alia, questioned the appropriateness of
the unit sought by the Union, contending that parts
department employees should be included, which conten-
tion was sustained by the Regional Director.
116 This was the unit found appropriate by the Regional Director
17 Respondent contends that thel tactics allegedly used by employee
solicitors in the cases of Nelson and Hermes created an "atmosphere of
misrepresentation and intimidation", that invalidated the other cards
However , absent any evidence that any other cards signers were affected by,
or even aware of, such alleged tactics, that contention is rejected
STUMPF MOTOR COMPANY 443
Respondent now urges that there was never (1) any valid
request for recognition nor (2) any effective refusal of
recognition.
As to (1), Respondent contends, first, that no demand for
recognition was ever communicated to Respondent.
However, it has been found that on June 14 the union
agents explained the purpose of their visit and Stumpf
admitted that they showed him a copy of the demand
letter, denying orly that he read it. Even if that were so, an
employer cannot avoid communication of a request for
bargaining merely by refusing to read a letter, which he has
reason to believe contains such a request. Surely, Stumpf
could not have thought, although his testimony so suggests,
that the union agents were merely paying him a social visit
and that the letter they were showing him was somehow
related to such a visit. Accordingly, it is found that, even if,
contrary to the finding above, there had been no oral
communication by the union agents of the purpose of their
visit, and assuming that Stumpf did not actually peruse the
letter, he would still be chargeable with knowledge of its
contents.is It follows that a demand for recognition of the
Union was effectively communicated to Respondent on
June 14.
Respondent argues, further, that in any case any demand
made by the Union on June 14 was invalid because of a
substantial variance between the unit sought and that
found appropriate by the Regional Director. Respondent,
here, relies on the exclusion of parts department employees
from the unit sought by the Union, as described in its June
5 letter and its petition. The record shows that in June
Respondent had 8 or 9 such employees 19 out of a total of
31 in the appropriate unit. It has been held that the
difference between a requested three-man unit and the
two-man unit found appropriate was "insubstantial," since
the union had a majority in both units.20 Here, too, the
Union had a majority in both units and it is clear that
Stumpf either made no effort at the June 14 meeting to
ascertain what unit was sought, or, if he did, failed to raise
any issue at that time with regard to the exclusion of parts
department employees. Accordingly, it is concluded that
on June 14 the Union made a valid request for bargaining.
Respondent con tends, finally, that there was never any
refusal to bargain, alleging that at the June 14 meeting the
Union volunteered to pursue the matter of recognition
further with Respondent's counsel and that the Union
failed to do so. However, there was no evidence that the
Union volunteered to take up the matter with counsel.
Although the record shows that at the June 14 meeting the
first reference to Respondent's counsel, Myse, was made
by one of the union agents, he merely asked whether Myse
represented Respondent, and it was Stumpf who then
suggested that the Union deal with Myse.21 While there is
no evidence that the Union thereafter requested recogni-
tion from Myse, in haec verba, the maintenance of the
petition was, in itself, a continuing request for recognition,
and Respondent made it clear at the June 20 hearing on
the petition that Respondent was not disposed to recognize
the Union voluntarily. Moreover, under Board precedent,
the Union had no obligation to follow the matter up with
Respondent's counsel. The Union having made a proper
request for bargaining, it was incumbent on Respondent to
take the next step and either grant or deny that request. It
could not require the Union to reiterate its request to a
legal or other representative of management.22 Finally, it
may be noted that Respondent concedes in its answer that
it has not recognized the Union.
It is concluded therefore that on June 14 the Union had
signed authorization cards from a majority of the employ-
ees and made a proper request for bargaining on that date,
which was rejected by Respondent.23 The question remains
whether by such rejection Respondent violated Section
8(a)(5) under the rule of Gissel.24
In view of the threats by Friebel of loss of existing
benefits, in the event Respondent had to deal with the
Union, which threats were addressed to a majority of the
employees in the unit, Stumpf's threat to terminate
Respondent's operations in case of a strike, and Respon-
dent's exploitation of the issue of the merit raises and the
increase in the rate for warranty work so as to drive a
wedge between the employees and the Union, and its
granting of the warranty raise the day after the election,
there is little likelihood that traditional remedies will
suffice to insure the holding of a fair election. Under the
circumstances, it is found that the signed authorization
cards are the most reliable available evidence of the
employees' sentiments , and that, by refusing on and after
June 14 to recognize the Union on the basis of such cards,
Respondent violated Section 8(a)(5) and (1) of the Act.25
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
18 Gerhard Landgraf and Peter Landgraf, d/b/a Bay Standard Products
Mfg Co, 167 NLRB 340,345.-347
is It was agreed a' the hearing that there were eight or nine such
employees during the eligibility period for the election in late July. Absent
any evidence to the contrary, it is presumed that the same was true in June
20 N L R B v. Richman Brothers Co & Richmond Brothers Madison, Inc,
387 F 2d 809 (C A. 7, 1967), enfg. 157 NLRB 1666, and cases there cited. (In
Sabine Vending Co. In;, Division of United Servomation Corporation, 147
NLRB 1010, cited in that case, the Board found insubstantial a variance
between a 10-man anc an 8-man unit ) Accord. Galloway Manufacturing
Corporation, 136 NLRB 405,409
21 The foregoing findings are based on the testimony of Curtin, as
corroborated by Krasniewski As noted above, Stumpf professed not to
recall any mention of his attorney on June 14
22 S E Nichols Comipani, 156 \LRB 1201. 1212
2.1 Even if it were found that there was not a proper request or refusal, it
would be appropriate, in view of the nature and pervasive character of the
8(a)(1) violations found herein, to issue a bargaining order as a remedy for
such violations See J C Penney Co, Inc, 160 NLRB 279, 287, enfd. 384
F 2d 479 (C A 10. 1967), Western Aluminum of Oregon, incorporated 144
NLRB 1191, Grevstone Knitwear Corp. 136 NLRB 573, and cases cited in
In 4 thereof
. i N L R. B. v Gissel Packing Co, Inc, 295 U S. 575(1969)
Mr Wtcke, Lid Co, 182 NLRB 38, Merritt Motor Company, 181
NLRB 1099. Kaiser Agricultural Chemicals, a Division of Kaiser Aluminum &
Chemical Corporation, 187 NLRB 661, enfd 473 F.2d 374 (C A 5, 1973).
Lawrence Rigging, Inc, 202 NLRB 1094, Meehan Truck Sales, Inc, 201
\LRB 780
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that Respondent engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (5 ) of the Act , it will be recommended that it be
directed to cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the unit set forth above
and, if an understanding is reached , embody it in a signed
agreement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act:
All auto, truck and used car mechanics , greasers, body
shop employees , parts department employees and shop
maintenance men at Respondent 's Appleton , Wiscon-
sin, establishment , excluding office clerical employees,
service billing employees , service writers , wash rack
employees and supervisors as defined in the Act.
4. At all times since June 2, the Union has been the
exclusive representative of the employees in the aforesaid
unit for the purpose of collective bargaining with respect to
rates of pay , wages, hours of employment , and other terms
and conditions of employment.
5. By refusing on and after June 14 to bargain with the
Union as the exclusive representative of the employees in
the said appropriate unit , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) and ( 1) of the Act.
6. By threatening to terminate its operations. if the
employees engaged in a strike , Respondent violated
Section 8 (a)(1) of the Act.
7. By threatening employees with loss of existing
benefits if they chose the Union as their bargaining agent,
by apprising its employees that wage increases were being
held in abeyance because of the pendency of the Union's
petition for an election, without any assurance that such
increases would be offered regardless of the outcome of the
election, by granting wage increases the day after the
Union 's defeat in the election and maintaining them in
effect even after the Union had filed objections to the
election , and by coercively interrogating an employee
about his union sentiments , Respondent further violated
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]