Suburban Ford, Inc.

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Suburban Ford, Inc. and Automotive Transport Chauffeurs, Demonstrators & Helpers, Local 604 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Automotive, Petroleum and Allied Industries Employees Union, Local 618, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Bob Hawkins. Cases 14-CA- 12580, 14-CA-12581, and 14-CA-12671 March 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 21, 1979, Administrative Law Judge Stanley N. Ohlbaum issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and Charg- ing Party Local 604 filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Suburban Ford, Inc., Imperial, Missouri, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization 248 NLRB No. 51 To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT accuse any employee of dis- loyalty for being a union member or exercising any other right under the Act. WE WILL NOT threaten to discharge any em- ployee because he or she belongs to a union or does anything else an employee has the right to do under the Act. WE WILL NOT ask any employee to tell us what he or she is dissatisfied about, in order to get him or her away from union membership or any other right under the Act. WE WILL NOT promise any economic benefit to an employee for not joining or staying in a union or for not doing anything else he or she has a right to do under the Act. WE WILL NOT tell any employee it would be useless to try to bargain with us through a union. WE Wll.. NOT give any employee any assur- ance of a long or steady job if he or she does not join or drops out of a union. WE WILL NOT withdraw or change any car sales bonus contest, or take away or change any salesman's demonstrator car, or change any salesman's job, to get him or her to drop out of or not join a union or to cause him or her not to exercise any other right he or she has under the Act. WE WILL. NOT discharge or lay off an em- ployee because he or she has joined a union or done anything else he or she has a right to do under the Act; nor try to scare any employee away from a union or from doing anything else he or she has a right to do under the Act. WE WILL NOT hire unneeded extra employ- ees-salesmen or clericals or others-in order to destroy a union's majority strength to bar- gain collectively with us on our employees' behalf, nor so as to defeat or impede our em- ployees' right to be represented by a union or unions. WE WILL NOT do any of these things, or otherwise violate the National Labor Relations Act, directly or indirectly, in order to destroy or dissipate the collective-bargaining status of your lawfully designated union representative, or for the purpose of inducing you to cease SUBURBAN FORD, INC. 365 from acting through such representative in order to bargain with us collectively, as you have the right to do. WE WILL make each salesman in our employ on April 30, 1979, whole, plus interest, for all pay, commissions, job benefits of any kind and extra expenses incurred, because of each of the following actions we took on or after April 30, 1979: 1. Our withdrawal of the "LTD" sales bonus contest before its scheduled ending date; 2. Our changing of our salesmen's demon- strator cars; 3. Our shifting of our salesmen from new to used car sales or vice versa; 4. Our taking on of unneeded salesmen, in order to break up the majority status of Teamsters Local 604 as our salesmen's au- thorized collective-bargaining representative. WE WILL additionally make whole Bob Hawkins for all pay, commissions, and benefits he lost, and all extra expenses he incurred, with interest, because we fired him on June 6, until he returned on June 9, 1979. And we will remove from all of our files and records any indication that he was fired for cause or in any way because of his fault, and we will not make any such statement to any prospective employ- er or reference seeker. WE WILL on request recognize and bargain collectively in good faith with Automotive Transport Chauffeurs, Demonstrators & Help- ers, Local 604 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of our salesmen in the fol- lowing appropriate collective-bargaining unit, and we will embody in a signed agreement any understanding reached: All salesmen employed by Suburban Ford, Inc., excluding all office clericals, guards, professionals and supervisors as defined in the Act. WE WILL, on request, recognize and bargain collectively with Automotive, Petroleum and Allied Industries Employees Union, Local 618 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining represen- tative of our clerical employees in the follow- ing appropriate collective-bargaining unit, and we will embody in a signed agreement any un- derstanding reached: All office clerical employees at the Imperial, Missouri facility of Suburban Ford, Inc., ex- cluding all salesmen, professional employees, guards and supervisors as defined in the Act. SUBURBAN FORD, INC. DECISION I. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHIBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (Act), was heard before me in St. Louis, Missouri, on July 11-13 and August 6, 1979, with all parties partici- pating throughout by counsel and given full opportunity to present evidence, arguments, proposed findings and conclusions, and briefs. Post-trial briefs were received on September 12. The record and briefs2 have been careful- ly considered. The principal issues are whether, after receiving and declining requests for recognition and collective bargain- ing from a Union on behalf of its automobile salesmen and from another Union on behalf of its clerical employ- ees, Respondent engaged in a variety of alleged unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act in order to destroy the Unions' claimed ma- jority representational status and to abort a fair election under the Act; and the appropriate remedy for any such violations. Upon the entire record and my observation of the tes- timonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONC[USIONS II. JRISDICTION At all material times, Respondent has been and is a Missouri corporation with principal office and place of business in Imperial, Missouri (the only location involved here), engaged in retail sale and distribution of auto- mobiles and related automotive products. During the representative 12-month period ending May 31, 1979, im- mediately antedating issuance of the complaint, in the course and conduct of its said business, Respondent re- ceived gross revenues exceeding $500,000, and also pur- chased and caused to be transported to its said location directly in interstate commerce from places outside Mis- souri automobiles and related products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and in oper- Ca.es 14-CA 12580 (charge filed on Max 8. 1979) h Teamters local Nt)4), 14-CA-12581 (charge filed on Ma 9') hb\ Feamrnsrs I ocal 618), and 14-CA-12671 (charge filed on June 8 h Hobh lasxkinl where merged in(o a consolidated complaint issued on June 21 h the Regional Director for Region 14. superseding an erlier conllohdated complaint tCases 14 CA 12580 and 14-CA 12581) isied hb him on Juie 8 Unless oilhcrxi e stiacd, dales are 1970 2 Sixteen xi ll et s t il Ificd lll d Ih rc are oicr 8(X) pages of Irli rlpl. cxhlhilTs. ld hriets Respondelnt' unopposed niolion to corIecl the tran- script i hrcb\ granteld .X late brief , a , is, receic d fro rn I ocal 6104 on September 17 SUBURBAN FORD, INC. 365 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times Charging Party Unions have each been and are labor or- ganizations as defined in Section 2(5) of the Act. III. ALLEGED VIOLATIONS OF THE ACT A. Background Respondent is a retail dealer in new and used auto- mobiles and trucks in suburban St. Louis. This case cen- ters around the attempt of its salesmen and its clerical employees to organize themselves for collective bargain- ing-the salesmen through Teamsters Local 604 and the clerks through Teamsters Local 618-and Respondent's actions in response thereto. Alleged occurrences will be taken up in chronological order so as to portray events as they happened. For convenience, an appended chart (Appendix A) chronologically summarizes allegations, cross-referenced to complaint paragraphs, Act sections, Decision sections (herein), and witnesses on each side, and also set forth findings thereon and their chief bases. [Appendix A omitted from publication.] B. Alleged Unfair Labor Practices 1. April In mid-April, Respondent's car salesman Norbert Eugene Merz contacted Teamsters Local 604 with a view toward its representing Respondent's salesmen in collective bargaining. At a union organizing meeting on April 19, 63 of the 9 or 104 salesmen, a clear majority, signed and the same or next day gave to that union membership application cards (G.C. Exhs. 3a-f), where- by each did "voluntarily choose and designate it as my representative for purposes of collective bargaining." Re- spondent's clerical employees, who worked in close proximity and conjunction with its salesmen, heard about this and expressed interest in becoming organized for collective bargaining, too. Accordingly, after meeting on April 25 with Teamsters Local 618 Representative Por- terfield, five of Respondent's six 5 clerical employees like- wise signed and gave to that Union membership applica- tion cards (G.C. Exhs. 2a-e) designating that Union, in the same words as quoted above for the salesmen, to rep- resent them for collective bargaining. Porterfield then suggested they sleep on it anyway and if they had not changed their minds by the following morning, to nod affirmatively to him when he then came in to visit Re- spondent to request recognition and collective bargain- ing. When Porterfield accordingly visited Respondent the next morning (April 26), the clerical employees6 nodded to him affirmatively as prearranged. 3 I.e, Baffa. Gowran. Hawkins. Hootselle. Metz. and Van Ronzelen 4 The foregoing (slpra., fn 3), plus Terry Hildebrand (Respondent President Roland Hildebrand's son). Robert Michael Fitzgerald (Respon- dent New Car Manager James Fitzgerald's son), Larry Stovesalnd (Re- spondent Assistant New Car Manager), and Ed Mercer (a "part-timer" who seemingly as paid some commission in connection with a car sale in April but not, so far as appears. thereafter See Resp. Exh 4) 5 I.e., all but Mary Gant. who was orking late that day: viz. Dane, Davis, Kassen. Lyles, and Smith a Including Smith, who, testifying as Respondent's witness, concedes she also nodded affirmaivel) to him that morning to indicate her conlin- Representatives of both Teamsters Locals (604 and 618) visited Respondent's premises together on April 26 and, upon the basis of the employees' signed union au- thorization cards, 7 requested recognition from Respon- dent's head official and principal, Roland Hildebrand. Hildebrand answered that he would "have to think about it." 8 Later in the day, Hildebrand indicated that he was declining to recognize the Unions, was being advised by counsel, and wished to go to an election. Accordingly, on the next day (April 27), Local 618 Representative Porterfield likewise filed with the Regional Office the representational credential cards his Union held from Re- spondent's clerical employees, together with a petition for a statutory election and certification. At noon on Saturday, April 28, Respondent's new car salesman Bob Hawkins was called into Roland Hilde- brand's office by General Sales Manager James Fitzger- ald (third in line of authority in the Company, over him being only owner Roland Hildebrand and the corporate official and office manager, Lorraine Schramke), who sat down in Hildebrand's chair and berated Hawkins: Hawk, you of all people, I didn't think you'd do this to me. . . . [a]gree to join a union. . .. I expect loyalty from [my] employees . . . I took a chance on you, and I could have blown [you] out of [here] any time I wanted to when [you were] having bad months. To this Hawkins responded that any decision he made would be for the benefit of his family as well as his em- ployer and should not be taken personally by Fitzgerald. Hawkins, who had previously served with Fitzgerald on the police force, asked Fitzgerald what was different from the time Fitzgerald and he had organized a police- men's association. Fitzgerald merely replied, "It is differ- ent" and something about looking at yourself in the mirror, and called for salesman Van Ronzelen, whom he likewise berated from Hildebrand's chair: Van, you stabbed me in the back.... You know very well that Mr. Hildebrand and I did not want a union in this store.... Have [you] looked up the definition of the word loyalty lately? Fitzgerald added that he (Fitzgerald) could still "shave my face in the morning"-i.e., face himself in the mirror ued assent to union representation Smith. who has had a year of college. read the card before signing it and clearly understood its meaning. signifi- cation, and intended use. and at no time made any attempt to withdraw or cancel her card. although apparently she would hase been happier to keep it quiet because of her husband's opposition to unions generall) I Local 618 Representative Porerfield exhibited the signed cards of the clerical employees Local 604 Representative Greer did not display the salesmen's cards because he had already filed them with the Regional Office on April 23. as the Regional Office's date stamp shows. together with a petition for certification based upon an election under the Act The clerical employees' cards were similarly filed with the Regional Office on April 27 s It is undisputed that the two Unions requested recognition on April 26 Although Hildebrand did not estify. Respondent's corporate official and office manager. Lorraine Schramke., as ell as its sales manager. James Fitzgerald. acknowledged the meeting and recognitional demands took place Local 604 had previousl). on April 23 also requested recog- nition to bargain on behalf of the salesnmen, but had like" ise been told by Hildebrand that he "sould think about it and let [you] know" SUBURBAN FORD, INC. 367 (the same as he had indicated to Hawkins). Van Ronze- len answered that he had done nothing to be ashamed of and that as one of the six organizers of the St. Louis police force Fitzgerald would have done the same thing. To Van Ronzelen, as to Hawkins, Fitzgerald, who ac- cording to his own testimony had been a St. Louis police officer for 10 years (1959-69) during which he organized and was the founding president of the St. Louis Police Association and thereafter was a member of Local 604 for 4 years (1969-73) including his time at another car dealership as assistant manager, replied that "There's a big difference." Van Ronzelen told Fitzgerald the sales- men had left Fitzgerald out of it "for your own protec- tion." Fitzgerald chided Van Ronzelen because he did not "come to me first." The meeting ended with a hand- shake between the two.9 The foregoing is the sworn account of Hawkins and Van Ronzelen. Fitzgerald's version is not essentially dif- ferent. According to Fitzgerald he told Hawkins and Van Ronzelen "almost word for word" the same thing: I [am] thoroughly disappointed in the way that you have gone around me with whatever problems you think you have . ... If you have problems I [feel] that you should at least have come to me before going whatever route you are taking .... We at Suburban Ford and myself [do] not want the union . . . because Suburban Ford [can] not afford a union at the time. Upon the basis of the foregoing testimony, and credit- ing Hawkins and Van Ronzelen, I find the allegations of paragraphs 5A, B, and C of the complaint established. The regular weekly meeting of Respondent's manage- ment with its salesmen at the beginning of the workday on Monday morning, April 30, was opened by Sales Manager James Fitzgerald's brusque and unprecedented announcement to the salesmen, as he uncharacteristically paced back and forth redfaced behind the finance office door, which was closed on this occasion, that (as re- counted by salesman Thomas Hootselle): I want all of the keys to your demos [i.e., salesmen's demonstrator vehicles] before you leave the meet- ing. Just place them on the desk . . . [You will] be furnished with different demos before the day [is] up. Such a recall of salesmen's demonstrators was unprec- edented. Continuing, Fitzgerald also announced that Re- spondent's current bonus contest for salesmen, involving as prizes paid trips to Las Vegas and another resort for sales of "LTD" model Fords, was canceled "for lack of interest," notwithstanding the fact that in the expired 2 of the 4 weeks set for the contest salesmen had already made such "LTD" sales vying for the prizes.' °0 Curtly 9 Fitzgerald resigned from Respondent's employ on May 18 'o Although a new "LTD" sales "bonus" contest was shortly there- after placed into effect, it was a cash bonus seemingly not approlimaing the alue of the summarily and unprecedentedly canceled contest. nor was any credit of any kind given to the salesmen for "[.TD)" sales l- ready made by them under the summarils canceled contest, thus on both counts resulting inr a loss, of economic hbenefits ( them I do lnol credit addressing the salesmen for the first time by their last in- stead of their first names, as he-also without prece- dent-singled them out for blame for a downturn in ve- hicle sales during April, asserting Respondent was "in the red $43,000 . . . that month" (April) following a good March. Finally, that same morning (Monday, April 30), six new persons showed up on the scene and were introduced as additional salesmen-likewise without pre- cedent in the history of the Company. The salesmen's demonstrators-which, for practical purposes prior to this time, they could select themselves, as a lucrative, prized, and prestigious job benefit and emolument-were thereupon taken from them and re- placed with high gas-consuming trucks or other less de- sirable vehicles.'2 Sales Manager James Fitzgerald con- cedes he reassigned these "prestigious" demonstrator ve- hicles to the newly hired additional salesmen brought in on April 30. Also on the heels of the April 30 meeting there oc- curred a likewise unprecedented reshuffle of the sales- men's jobs, transferring them from new to used car sales or vice versa' 3-as credibly described, two substantially distinguishable jobs requiring distinct experience and job skills, and thus prejudicial to their earning opportunities, based on commissions. In view of the accumulated expe- rience and expertise of the salesmen in the jobs they held,. 4 their wholesale reshuffling and replacement or augmentation by untrained novices with little or no qualifications 5 could have had no rational purpose other James Fitzgerald's explanations for the premature cancellation of the original LTD bonus contest as stemming from any lack or diminution of interest therein by the salesmen (his own son Robert estified to the con- trary) or from any reason other than coercion and restraint upon the salesmen because of their union organizing activities "See "Respondent's economic' defense," sec 11II.B,. ifra . Thus, salesman Hootselle's 1979 air-conditioned LTD andau. re- tailing for $8,700 and never sold. was replaced with a 1979 unair-condi- tioned 5.(X)O Fairmont Futura and later with an unair-conditloned Gren- ada Van Ronzelens 58500 air-condilioned luxury Thunderbird (never sold) was replaced with all unair-conditioned $5.000 Pinto Merz' S6.750 air-conditioned Grenada Guia was replaced with an unair-conditioned 6 mpg 3/4-ton pickup truck which. because of the 44.6-mile round-trip dis- tance to his home. he has not used in iew of the high added cost of the gasoline it would require Has kins' $7200 air-conditioned 14 mpg I.TD- 2 was also replaced with an unair-conditioned (subsequently air-condi- ionled) 8 mpg 3/4-ton pickup truck (Seemingly at no prior time had a salesman. other than at his own request, been assigned a pickup truck as his "demonstrator" ehicle ) However. the vehicle of Hildebrand's son Terry (a salesman) was not replaced: and Fitzgerald's son's demonstrator was replaced with an equivalent ehicle ith a bed. which he requested The L.TD vehicle taken from Fitzgerald's assistant. Nes Car Manager Stovesand. was apparenll, restored iio him ssithin a few das .a Thus, used car salesman Hoolselle. after 4 years of employment in- cluding recently almost half of a year as temporary used car manager. was summarily ransferred to new cars. as Were also salesmen Baffa and Gow ran, whereas new car salesmen Hawkins (in Respondent', emnplo as new car salesmen since November 1978) and Merz (in Respondent's employ for 6 years as a ntew car salesman) were sw itched to used cars Such a wholesale sitch-around was unprecedented Salesmen Hootselle and Hawkins lestified credibly that their incomes suffered because of the obh switches It is noted that the job of Sales Manager James Fit7gerald's son, car salesman Robhert. remained Ilnchanged " Indeed. one sluch transferee, ess car salesman Hasvkits. had recent- I) been detailed hby Respondent to a formal course of inltruIctlil I neite car sales techniques i1 ResplndeCnt', behesl and c\perisc Rsponlldenl's sales rtlager. J;lmt.s I igerald. .a Ihc hearing hnilf characterized the esxliliig sale, frce a, "the best- i' See fit 17. it/r SUBURBAN FORD, NC. 367 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights under the Act and in their job security and to reduce their income, so as to induce them to cease exer- cising those rights, and I so find. While the suggestion is advanced that Respondent's di- minished business in April itself necessitated the substan- tial augmentation of its sales staff on April 30 in order to increase sales, it is to be noted that no such augmentation had occurred in or after poor business months in the past; Respondent's Sales Manager James Fitzgerald him- self at the hearing characterized the quality of the mem- bers of its existing sales staff as no less than "the best"; the job qualifications of some of the sudden and unprec- edented additions' 6 to its sales staff are far less than im- pressive;' 7 and there is no showing that their advent re- sulted in sales which could not readily have been han- dled by the existing sales staff. Viewed in this light, their addition to the sales staff, under the circumstances shown, could have been for no purpose other than to dissipate and destroy the majority representational status of Local 604 as its salesmen's designated collective-bar- gaining representative and to abort the outcome of a fair election under the Act, 1 8 and to have no result other than to diminish the commission earnings of its existing salesmen as well as to coercively retaliate against and in- timidate them in their jobs because of their attempts to exercise their right under the Act to bargain collectively, and I so find. At the same time as Respondent thus substantially aug- mented its sales force after the salesmen attempted to bargain collectively through Local 604, Respondent like- wise substantially augmented its clerical force on the heels of the clerical employees' simultaneous attempt to bargain collectively through Local 618-in the latter in- stance adding also no less than four alleged new cleri- cals, x9 all "part time," also (as in the case of the sales- '" All. according to Respondent's sales manager, James Fitzgerald, un- adxerlised and recruited through "emergency basis" personal contacts ,of management ]i Thus. Corrigan was a former bank guard, and Gorda and Whanger similarly ssere ithout car sales experience while Daniel Fitzgerald swith some experience-was another son of Sales Manager James Fitzger- ald None of the six added salesmen had worked for Respondent before. and of the six only one Pfuehl hired in mid-May) was still working there at the time of the instant hearing, the other five having left or been discharged for "low production" with to replacements in July ', In this connection, it is noted that. according to credited testimolyr of salesman Hootselle. on July 10--during the very pendency of the in- stant hearing he oerheard current New Car MNanager Terry Hilde- brand (owner Roland Hildebrand's son and James Fitzgerald's successor) inform and question a new candidate for employment that "we [are] having Iaub r problems we are in the midst (of a unioin problem Some of the employees are joining or trying to organize to join a nion What's your feelings ion this?" Early the same afternoon Hootselle also heard Responident's principal Rland Hildebrand himself tell another job candidate substantially the same thing Without explanation neither of the Hildebrands testified. thus leaving this testimonyr of Htooselle unilcointra- dicted 'The foregoinig is fairly construable within the conlltext of Respol- dent's admitted as testified to by Respoldenm's ow i, witnesses James and Robert Fitzgerald, as well as the Genelral Counsel's w ilnesses -opposiion to unionization arid collective bargaining by its employees Il e Gratia (Respondenl Office Manager Schramke's niece through marriage}. Sims (Respondenl's sers ice manager's i fe). Brandi (Schranimke's niece). aid Gillil (recoimmended by Brandt) ()Of these i onl Graiza and Sinms wcre still in Rspondenlt's mploy at the titie f he in- stant hearitng Respindeint's salcsilaln Mel, testified credibl that aroulnd tli ,ll a Saturday il mid-NIa, i the pcsnce f Assistant Sales Mlanlager Sto c - force augmentation) without precedent and in the face of alleged business shortfalls. There is also impressive testi- mony 20 that following their collective-bargaining re- quest, the former friendly and relaxed atmosphere in the clerical offices on the part of management underwent a swift and unprecedented transformation to hostility, harshness, and rigidity. Under the circumstances shown, it is impossible to view Respondent's sudden, substantial, unprecedented, and unsatisfactorily explained augmentation of its clerical force, on the heels of the request by Local 618 to bar- gain collectively on their behalf, in any other light than Respondent's precisely parallel action in augmenting its salesforce on the heels of the simultaneous request by Local 604 to bargain collectively on their behalf- namely, to interfere with, restrain, and coerce the cleri- cals, as well as the salesmen, in the exercise of their Sec- tion 7 rights under the Act, to dissipate and destroy the majority status of their designated Union, and to abort and prevent that fair Board election mandated by the Act, and I so find. The foregoing substantial expansions of sales as well as clerical forces on the heels of those employees' rejected conjoined collective-bargaining requests and pending the fair statutory elections which Respondent demanded, may be regarded as particularly strange in view of Re- spondent's defense here of "economic" problems result- ing from declining sales and income. That defense will now be addressed. Respondent's "economic" defense Respondent seeks to account for its actions of April 30, on the heels of its refusal of the two Unions' requests to bargain collectively, by claiming that those actions were necessitated by poor business in April. It seems fair to assess Respondent's actions and its mo- tives in the context of its plain opposition to collective sand, Respondent's newly added part-time Saturday telephone clerk Donna Gratza (Respondent's executive Lorraine Schramke's niece) re- marked that although this is "the easiest job (I've e er had Aunt Lorraine told [me] when this [organizational attempt] is over, [I] ill quit " Later Stovesand commented. "I can't believe she said such an idiot[ic] thing to you " Although Gralza disputes Merz' ersion. upon the basis of my comparative testimonial demeanor observations I definitely prefer aid credit Merz' testimony Without explanation. Stovesand as no produced to dispute Merz testimony According to Gratza. Merer up- braided her for doing something "morally rong" il coming in as an added alleged employee to be invlolved in something that did not concern her and to think about it if she had a conscience Although Gratza claims she did not know what Mere was talking about. she acknoskiledges she did not even ask him I do not credit her testimony that she wtas unas ~are of what Merz sas alluding to, particularly i ie , of her later conces- sioni that "I knew it was a problem wilh the un ioll 2c l e by Dane "It as like a bomb was dropped the tension became unreal " Comlpany Executive and Office Manager Schramke pointedly remarked that thenceforth "itl will be strictl) bhlusinss" and by I.yles. as well as by Respondent's ovnal itiless Davis. xx ho testified that the morning after the Union exhibited their cards and requested collec- live bargaining Office Mana;ger Schralmke told her she sas no longer her friend anid that she w"as very much hurt because the girls had signed the union cards Upon demeanor observations, I discredit that portion of Davls' testinimo-ll-highly equixocalte. unsatisfactory. tand pinly pre- varicatie. i contirast to her ther testimnlly as obshered-Ihat some un- mdenlified and allegedlN unlremembered person allegedls remarked or "must hilac"' remarked to her that she 'xould he fired if she did not sign ai unliton crd SUBURBAN FORD, INC. 369 bargaining by its employees through unions. The account of Respondent's salesmen's meeting on April 28 in owner Hildebrand's office when Sales Manager James Fitzger- ald-third in command at the Company, by his own characterization-from Hildebrand's chair, that "locus of final authority," 2 ' upbraided them for their "disloyalty" in seeking to assert their legal rights to attempt to bar- gain collectively, will be recalled. At the hearing, Sales Manager James Fitzgerald conceded he chided these men because they went to a union and did not "come to me .. we at Suburban Ford and myself [do] not want the union.... because Suburban Ford [can] not afford a union at the time." Fitzgerald's son Robert, also testify- ing as Respondent's witness, recounted that he-as one of Respondent's salesmen-"very often" reminded the other salesmen that his "father's wishes . . . [are] against the union coming into Suburban," even though his father had organized a union in the police department. In assessing Respondent's "economic" defense it also seems fair to keep in mind that at the instant hearing Re- spondent's sales manager, James Fitzgerald, testifying as its witness, himself rated its sales force as "the best." Concerning the level of Respondent's business in the first quarter of 1979, even Respondent appeared to have no dissatisfactions, and there is no credible showing that it expressed any, prior to the assertion by its employees through their two Unions of their desire to bargain col- lectively. Even according to Sales Manager James Fitz- gerald, March was a "good" 22 month. According to his son Robert, March was a "good" month, but April was not because "there weren't as many people in there in April as there was in March"-generally agreed to here by all witnesses, but hardly necessarily ascribable to der- elictions or shortcomings of the sales staff. On the con- trary, the shortfall in anticipated or hoped-for April traf- fic is explained by various witnesses as ascribable to a combination of factors; viz, fewer customers needing or wanting to purchase cars or trucks for one reason or an- other, including the general economy, inflation, the gen- erally depressed condition of the automobile sales indus- try, gasoline shortages and escalating prices, and a local road-flooding situation at and around Respondent's loca- tion precluding or interfering with ready access to its premises. Other factors included increased competitive- ness in the industry. But the core fact is that these were basically factors outside of the control of the salesmen. As conceded by both Fitzgeralds, where fewer custom- ers come in there are simply less sales. And, even aside from the foregoing factors in April 1979, it has not been shown that that April was substantially different from previous Aprils-when Respondent took none of the ac- tions it took here on April 30, 4 days after the visit by the Unions to seek collective bargaining. .411 of the ac- tions taken by Respondent on April 30 were unique and unprecedented in the Company's history. The only thing that was different was its employees' assertion, through their Unions, immediately preceding April 30, of their desire to bargain collectively. 2 Ge,r/l Sho (orporatio,, . 7 Nt RB 124. 127 (1948) : He later added, "hut not grcl " Finally, Respondent has submitted some April business "figures" (Resp. Exh. 2) which require comment. At the outset it should be noted that, as conceded by their origi- nator and sponsor, Respondent's executive and office manager, Lorraine Schramke, they pivot around her pro- jections. predictions, and expectations of the number of cars she hoped would be sold that month (April), so that any lesser number actually sold would thus, by that hor- oscopic "bookkeeping" mystique, be considered a "loss" although it was clearly and concededly not a real or actual loss since the assets (i.e., the cars) were still either on hand or available to be ordered. This explanation, of course, at once skews the "figures" (Resp. Exh. 2) pre- sented. It is further to be noted that the figures submitted (Resp. Exh. 2) are dated April 26 and do not reflect April 26-30, for which no figures were produced, leav- ing no month-end figures adduced even for April; that, as explained by Schramke, except for the last (extreme right) column, because of the style of computerization utilized, all minuses mean pluses; that the columnhead coding "MTD" means month to date, "FRC" means forecast (i.e., an artificial prediction), and "VAR" means variance between "MTD" and "FRC" or, in turn, a to- tally artificial figure delineating only the difference be- tween actual operations and predicted or hoped-for oper- ational levels aspired to be reached--and not any "loss." Furthermore, as is well known, a "poor" April may obviously be offset or more than compensated for by a "good" (as here conceded) March and/or other months; the contrary has not here been shown. Moreover, of course, lacking interface or other figures (for other months and years, annual reports and profit- and-loss statements, certified accountants' reports, etc.) for comparison purposes, and lacking any data to allow construction or derivation of a comparative ratio of per- sonnel manpower levels or man-hours to business or income levels-data which are presumably at hand and readily available to Respondent, but which for its own unexplained reasons it has chosen not to introduce 2 3 -no rational comparisons, deductions, or inferences are feasi- ble to support Respondent's alleged "economic" defense here in any event. Usually an "economic" (business decline) defense in explanation of an adverse employee personnel action is cast in terms of justification for employee discharge, layoff, or reduction in force. Here, strangely, it is the converse-Respondent asserts an "economic" (business decline) defense in justification of its substantial increase of its staff, coincidentally the only segments of its staff (salesmen and clerical employees) asserting the right to 21 That failure to introduce axailable docuneintary e idence jlu tific an inference thai it ,.ould not support or assist the colilmoln, of Ihe parll ·stho originated them. f S Drer & R G R R . 191 l S 4. 91 92 (1903): NL RB. \ IWallitA. 198 F2d 477, 483 3d Cir 1952) Schrarmke coinceded during cross-cxaminlation that-in contradlcl ion to he sup- posed "los,e'" for Apr-il based 1t1 shortfalls ill her alleged especlatlonl (Rep Exh 2). a-tual profit-and-loss filiancia;l laternen , of the Conpailn ,hovued pn/itt for the nesx car deparlmnti of 51()0.644 anld lr tite usoe car deparinlentit of 514,319 for April (ith an allegecd oserall los, of on1 Sh447 (illcludlig corporale salrle,, depleciali.llI ec ) i shl.irp COIItr.i- ditincllt n to the $4 154 lo,." bit reall\ onil sIhorilfall alleged pro- lelced epetliltorn. shos, oni Re',p Ft 2. f S hicl 1.O1ttlleC dl it a\ clent 2 11 (Re.p Esh 21 ;sa a,crihed to the part departnitilt ilth \k h lch l thE s.lea t n ha, c nIollulg I, doi SUBURBAN FORD, INC. 36q 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with it collectively. Such a turnabout, to justify substantial staff increases in terms of an alleged business decline, following swiftly on the heels of requests to bar- gain collectively, taxes credulity. In fact, it has not been credibly made out here by Respondent. A far more likely, and indeed the inescapable, explanation for Re- spondent's April 30 (and preceding and ensuing) actions here was that it was attempting, through a sort of em- ployer "featherbedding," to "pack" the bargaining units so as to dilute, emasculate, and destroy the Union's ma- jorities in the two appropriate bargaining units, 2 4 and obfuscate and abort the fair election processes which are a cornerstone of the Act and its policies and protections; and upon the described evidence and the record as a whole I so find. Among other things, this action consti- tuted-as indicated above-an adverse economic change in the terms and conditions of the employment of the salesmen, whose earnings consisted of commissions on automobile sales, suddenly to be shared with the "new salesmen" added by Respondent to the salesforce for the sole purpose of checkmating and nullifying its legitimate salesmen's statutory rights to bargain collectively. It need not be emphasized that such an uncalled for sharing of their source of income with a substantially enlarged group of such sharers would be calculated to severely dampen their ardor for continuing their ties to their Union, and thus to intolerably affreight their exercise of their congressionally declared rights under the Act. It is also apparent that an employer who, when presented with a request by his employees' duly designated union representatives to bargain collectively, while raising no questions, insists upon an election and thereupon prompt- ly uses the unavoidable administrative time interval before the election to embark upon a program of unfair labor practices and to "pack" the bargaining units with new "employees" as "extra voters" whom he endeavors to assure are unsympathetic to unions, thereby interferes with, restrains, and coerces his legitimate regular em- ployees in the exercise of their rights under the Act, since those employees will necessarily be made to feel that their federally guaranteed right to bargain collec- tively is a snare and a delusion, readily defeasible by their employer through the simple expedient of callously "packing" their bargaining unit for the election vote. Furthermore, such action by the employer is a crass in- terference with and an attempted abortion of the fair election processes which the Act is purposed to insure and which the Board is mandated to supervise. It is no answer to this to say what an employer may do through a speech campaign against a union, since his right to do so is protected constitutionally as well as expressly by Section 8(c) of the Act, whereas there is no such protec- tion to the employer's actions here. Nor is it necessary to complete the abortion by dismissing the instant proceed- ing (in this aspect) and relegating the statutorily protect- 4 1 e, (1) all of Respondent's salesmen, excluding all office clerical,. guards, professionals, and supervisors as defined in the Act salemnell's unit), and (2) all office clerical eniplo>ees a Respondenlt's Imperial, Mlis- sourn. facility. excluding all salesmen, professional employees guards and supervisors as defined in the Act (clerical ulit) Each ",as and is ;i con %entional and clearly appropriale bargaiiling unit and I so find No e,i- dence or suggestion has been adduced to the contrary ed employees and their unions to an election with its pre- dictably accompanying roundelay of challenges, objec- tions, "R" (representation) case hearings, reports, replica- tive renewed charges, "C" (unfair labor practices) case hearings, and bargaining orders-with interstitial reviews and appeals-when, under the circumstances here, the entire issue may be determined at this time-as, indeed, Gissel contemplates and sanctions. Consonant with the foregoing, it is found that the alle- gations of paragraphs 6A, B, and C, 7, 8, 9, 10A, B, and C, 11, 12, 13, 14, 15, 16A and B, 17, and 18 of the com- plaint have been established by substantial credible evi- dence upon the record as a whole. 2. May The described developments of April 30 were succeed- ed by additional coercive and restraintful episodes there- after. On Wednesday evening, May 2 or 9, Respondent's salesmen Van Ronzelen and Hawkins were together in a tavern, when General Sales and New Car Manager James Fitzgerald and then Used Car Sales Manager Jerry Gilliam (Fitzgerald's subordinate) came in. After Hawkins left and while Fitzgerald was in the bathroom, Gilliam approached Van Ronzelen and said to him, "If you'll forget all this union nonsense, I'll make it very well worth your while.... What do you want?" The following morning, at Respondent's place of business, Van Ronzelen asked Gilliam what he had in mind and again Gilliam there asked him, "What do you want?" Al- though Gilliam told him "We'll talk about it later," he never did, nor did Van Ronzelen bring it up. Van Ron- zelen's testimony to the foregoing effect is uncontradict- ed, since without explanation Gilliam was not produced to testify, and it is credited. It is accordingly found that paragraphs 5D, E, and F of the complaint-promises of economic benefits and solicitation of complaints and grievances, for abandonment of union support-are es- tablished. Within the context of the preceding weeks' events as already described, on May 4 Sales Manager Gilliam lev- eled at Merz-the actual and so-regarded by Robert Fitzgerald (Respondent's witness) spearhead of the sales- men's unionization activity-the admonition, "I wish we'd cut out the bull-t and get on to selling cars." To this, General Sales Manager Fitzgerald added, looking at Hawkins and Van Ronzelen nearby, "They're done and they know it." Gilliam was not produced to dispute the foregoing and Fitzgerald claimed he was unable to recall the incident, while denying that he ever told Merz that Hawkins and Van Ronzelen were "through"-which is not precisely what Merz testified to. Thus, in effect Merz' described testimony remains essentially unchal- lenged. Paragraphs 5G and H of the complaint allege that in early May Sales Manager Gilliam promised an employee benefits for abandoning his union support and threatened discharge of union supporters. As to this, salesman Haw- kins testified credibly that around this time he was called into the office by Sales Manager Gilliam, who behind closed doors told him, "Sit down. I want to talk to you as a friend.... What would it take for [you] to change SUBURBAN FORD, INC. 371 [your] mind about the union?" To Hawkins' answer indi- cating that his mind would not be changed since he was interested in economic security, Gilliam replied that he believed "the other salesmen [are] using [you] and making a fool out of [you], and that when this was all over I was going to be the only one left who would have a job." At this, Hawkins told Gilliam "if there was any more said I would like somebody present" and got up and left. Since, without explanation, Gilliam was not called to testify, Hawkins' account stands uncontradicted and I credit it. Accordingly, I find the allegations of paragraphs 5G and H established. Further, according to the complaint (pars. 51 and J), on or about May 18 Sales Manager Gilliam by soliciting complaints and grievances promised an employee bene- fits for abandoning his union support and at the same time indicated it would be futile for employees to select a union as their bargaining representative. Concerning this, Hawkins swore that on the date in question Gilliam again asked him, "what would [it] take for [you] to change [your] mind about the union . ... I can make it worth your while." Hawkins told Gilliam that "apparent- ly you don't know me too well . . . When I make up my mind to do something, I usually carry it through, and I couldn't be bought [in] 18-1/2 years on the police de- partment, and I can't be bought now." To this, Gilliam responded that "it won't do any good to bring a union in there" and asked Hawkins to "think about our conversa- tion." As already indicated a number of times, without explanation Gilliam was not called to testify. Thus, Haw- kins' account again remains uncontradicted and, crediting it, I find paragraphs 51 and J established. The complaint (pars. 5K and L) also alleges that in late May, at two different restaurant locations, Sales Manager Gilliam gave employees 5-year job-security as- surances if they abandoned their union support. Regard- ing this, salesman Hawkins testified that on the indicated occasion he was greeted in nearby Schobers Restaurant (complaint, par. 5K) by Gilliam, to whom he remarked that he (Hawkins) "hope we can still remain friends . . . after this is all over." Gilliam then asked Hawkins, "What do you want?" Hawkins answered, "Well, I went into this here for the benefits of the contract, the paid medical, for the pension, and the dental." Gilliam re- plied, "I can give you that" and proceeded to write out on a paper napkin that "Bob Hawkins will work for Sub- urban Ford for 5 years provided he sells 10 cars a month average. /s/ J. Gilliam." Hawkins asked Gilliam if he was "sure [you] want[ed] me to keep the napkin," and Gilliam replied, "Yes." At the same time, Gilliam told Hawkins to "think about it over the weekend" and wrote his (Gilliams') telephone number on another napkin for Hawkins. Hawkins retained both napkins, which are in Gilliam's handwriting, in his possession, and both were introduced in evidence (G.C. Exhs. 5b and a) at the hearing. A few days after the described episode, Gilliam called Hawkins into his office and asked him what he had done with the napkin Hawkins said he had "flushed it down the toilet." Gilliam then remarked, "You know, we were both drinking," and Hawkins answered, "Yes, sir." 2 5 In view of Respondent's unexplained failure to produce Gilliam to contradict Hawkins in any way, in- cluding as to any claimed insobriety on the occasion in question (stoutly and credibly denied by Hawkins), and based upon my demeanor observations of Hawkins as he testified, I credit Hawkins' account of the episode 26 and accordingly find paragraph 5K of the complaint estab- lished. In conjunction with this episode, it is appropriate to consider what appears to be a related incident, alleged in paragraph 6D of the complaint. A few days after the described Schobers Restaurant episode involving the napkins, after Hawkins had apparently satisfactorily reas- sured Gilliam that he had "flushed it down the toilet," Gilliam, waving some keys at Hawkins, replaced the "demonstrator" 3/4-ton pickup truck assigned to Haw- kins on April 30 by General Sales Manager James Fitz- gerald with an air-conditioned $5,400 Ranchero, with the remark, "Are you satisfied now?" 2 7 As with all other in- cidents involving Gilliam, this one, also, is wholly un- contradicted, since Gilliam was not produced to testify. Under the total circumstances here, I cannot regard the described action by Gilliam, particularly in the context of the Schobers Restaurant episode, other than the exten- sion of a carrot to Hawkins after Respondent had taken the stick to him-the one no less than the other a tech- nique of restraint and coercion purposed to weaken his resolve and wean him from his pursuit of his right to as- sociate himself for collective bargaining under the Act. It is accordingly found that this paragraph (6D) of the complaint is likewise established as, taken in conjunction with the record as a whole and related complaint para- graphs (19 and 20), violations of the Act. With regard to the remaining alleged incident of late May (complaint par. 5L), this is said to have involved another 5-year job-security assurance by Sales Manager Gilliam, to employees generally, made in a different res- taurant (Frank's Tavern). Respondent's salesman Merz testified to such an assurance by Gilliam-this one taking the form of an oral "guarantee that [you] would have some kind of contract for five years" if Respondent's Service Manager Sims, who was present could "talk" to Respondent's principal, Roland Hildebrand, and have "this thing . . . settled without all this going on . . . and we could probably work it out." Neither Gilliam nor Sims was produced to controvert in any way this testi- 12 At the hearing, Hawskins sore. 'ithoul conlradlclion since Gilliam did not testify) that they had had no more than four beers and wsere %sell in conItril of their faculties Crediting Ha'skins' testimon I can only conclude that Gilliam's remark about "drinking," a fe', da>s later, xas intended as a nonfactual alibi to cover up what Gilliam had later per- ceised or been told as his indiscretion in conmilting such all asurance to Hawkins to ".ritng and then leaving It In Ha\ kins' hand, 26 I do not redit the testlimont of Respondent', itless Chastaill co - cerning this episode to the extent that he mil be a.temptilg to place a different cast on the talk b claiming he as %sell as Gilliam told Hlas kins it as "unfair" for Hasvkins to be talkiig about the sublect HFoescxer. acciordling to Chlasta.i. he (Chastain) left the resta.uranl short. lea igl las kis there alone xsith Gilliam, so that ChastLu ould not hase been a parimcpalnt ti a CrlSllulg cZ orlnersallon btlcen (illirll aid Hia, kii,s That the ensuig colversatlion slas as tstficd h Hkikl is inot oillx s.'holl 5 midispuitd h Gilliam but is horne ouLt hb Ciil h an m C ulnlmdsputd kn ritltigs oi the na;pkil (Ci C Exhs 5bh arid a) rt e\ dence ': It Is ohered Ihat also in late t, . shtrll\ aficr General Sales Malilager Jries -lt/geril Ad left Resprondetitts eriplo ri Mn' I1. Has kilrs a1s, hl'tied h.,k hl hs d Is ib as ns car ,s.in.ll SUBURBAN FORD. NC. 371 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Merz, which I credit. Accordingly, I find para- graph 5L also established. 3. June Finally, on June 6 Respondent's salesman Hawkins was discharged, under circumstances to be described, only to be reinstated 2 days later after he filed an unfair labor practice charge with the Board's Regional Direc- tor. It is claimed that this discharge constituted in effect yet another harassing tactic for the purpose of chilling the employees' organizational ardor and subverting their unionizational adherence and activities (complaint pars. 6E, F, G, and H). The facts are as follows. On the day in question (June 6), Pamela Moran, a customer of Assistant Sales Man- ager Stovesand, needed a car since her own was delayed in repair. Stovesand told Hawkins to lend her salesman Merz' demonstrator since Merz was not there and it was not in use. Hawkins accordingly did so. Lending a dem- onstrator to a customer under such circumstances was a usual practice. Hawkins later informed Merz of this after he came in, and Merz indicated it made no difference to him since he was not driving that newly assigned demon- strator (a small truck) anyway. Later, Merz asked Sales Manager Gilliam for a car to drive home. When Respon- dent's owner, Roland Hildebrand, saw him in this car, he asked Merz why he was using it. When Merz explained why, Hildebrand spoke to Gilliam, who in turn asked Merz who had loaned his demonstrator out. Merz re- minded Gilliam that Hawkins had loaned it out at the di- rection of Assistant Sales Manager Stovesand. Notwith- standing this, Gilliam paged Hawkins loudly and repeat- edly on the loudspeaker. Although Merz told Gilliam that Hawkins was on the telephone, Gilliam responded, "I don't give a f-k where he's at." When Hawkins came in, in response to Gilliam's question he informed him that he had merely done what Assistant Manager Stovesand told him to do. Gilliam nevertheless faulted Hawkins anyway and that "If you say one more f-king word, you're fired." When Hawkins explained that "1 was just trying to explain what happened," Gilliam exploded at him, "You're fired. Give me the keys to your f-king demo." Merz, who had been an onlooker, remarked to owner Roland Hildebrand, "This is the biggest bunch of bulls-t I've ever heard." Since unexplainedly neither Gilliam nor Hildebrand testified, the foregoing account of Hawkins and Merz is uncontradicted and credited. Two days later, on June 8 Hawkins filed a charge against Respondent with the Board's Regional Director and later that day served a copy of it on Gilliam. Shortly thereafter he received a call to Hildebrand's office, where he was told that Re- spondent wanted him back since he was a good sales- man. Hawkins said that he already had an appointment set up for a job interview elsewhere, but could return the following day (June 9), which he did. 28 a, Although Respondcnl claims tawkins lost io b.ackpa., thll, I riol an issue , hich i as encornpassed hb or litigaled ill the il litallt ip)ltedilg Vilhihou allnemping to prejudge that issue Rcspionldcilt assrtriioi here Ihat Ha, kins' drawing accoult agails coinmissions lln as n ia lli t'c cii de not appear to meet the I coullerassertili1 of the ohi u- l Iiutll lt h it being Ihere for several days, Nhile he ,a s in discharge taltis. I lai,is I have difficulty in believing that, except for his known union organizational activity and his persistence in refusing to abandon his union affiliation-viewed by Respondent as his "disloyalty"-a salesman such as Hawkins, with an exceptional performance record and even sponsored by Respondent for attendance at ad- vanced training, an experienced salesman difficult to find or replace, and in a context of Respondent's unprec- edented augmentation of its sales staff with green "fillers" not having union affiliation, would be summarily discharged in a situation in which he was unquestionably without fault of any kind; and I believe the only reason he was reinstated was his filing with the Regional Direc- tor of unfair labor practice charges against Respondent. Within the context of the record as a whole, I am per- suaded and find that Respondent's discharge of Hawkins constituted yet further harassment of Hawkins and other employees, purposed, as alleged in the complaint, to bring the organizing employees to heel, so as to cool their union ardor, to cause them to abandon their union affiliation, and to dissuade them from pressing their con- tinued attempt to exercise their rights under the Act. It is accordingly found that paragraphs 6E, F, G, and H are established by substantial credible evidence on the record as a whole. C. Summary and Discussion In brief summary, there is presented here a situation where an Employer, faced by collective-bargaining re- quests from two unions representing different groups and bargaining units of his employees, refuses those requests and insists on elections under the Act. Instead of await- ing those elections so that the question of representation may thereby be fairly and honestly determined as con- templated by the Act, in a context of announced hostile intolerance to lawful collective bargaining as "disloyal" the Employer not only engages in miscellaneous acts of interference, restraint, and coercion in violation of the Act, designed to detach the employees from their union affiliation, dampen their desire for collective bargaining, and cause them to abandon that pursuit-legal and guar- anteed as it is to employees by the Act-but also, most significantly, to derail and foul the upcoming statutory elections under the Act by deliberately enlisting into each of the units, without bona fide business need, suffi- cient additional "fillers," lacking union affiliation, intend- ed to be put forward as "voters" in the upcoming elec- tions so as to counterbalance any votes to be cast by the unionized majority of the employees seeking collective bargaining and Board certification of their Unions on the basis of a fair election. To say nothing of its coercive and restraintful actions and employee harassments following their request for collective bargaining, it is impossible upon the record presented to regard Respondent's April 30 broadscale cancellation and withdrawal of benefits and its job shifts as other than "a blatant example of Re- spondent's raw economic power over the employees which it wielded for antiunion purposes." Chandler .iould I lhrdlI has il n sale ll s . li 1d eaIlled comll ollI , I I Cil Ihelher eh w-1outld litc is p lt o deterillllitiii lere, hil for . hckpa proceedliig. fi aiLs. lliosilIg the itluil preliniilar illxetigition SUBURBAN FORD, INC. 373 Motors. Inc., 236 NLRB 1565, 1566 (1978). Viewed in their totality, in every sense Respondent's actions here bespeak what Mr. Justice Harlan, speaking for a unani- mous Supreme Court in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964), characterized as the "fist inside the velvet glove." On top of these clear violations of basic prohibitions of the Act, Respondent further saw fit to engage in the egregious tactic of deliberately "load- ing" the bargaining units so as to insure the abortion of any fair election, thereby setting itself up in direct oppo- sition to the congressionally declared national policy as set forth in the Act. "We can conceive of no more perni- cious conduct than that which is calculated to undermine the Union and dissipate its majority while refusing to bargain." Teledyvne Dental Products Corp., 210 NLRB 434, 435-436 (1974). This indeed appears to be one of those "rare" cases where there is "direct evidence of a purpose to violate the statute." Hartsell Mli/ls Co v. N.L.R.B., 11 F.2d 291, 293 (4th Cir. 1940). Respondent's conduct here constitutes serious statutory violation calling for effective remedy. Cf. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969); Chandler, supra. Upon the foregoing findings and the entire record, I state the following: CONCtUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By engaging in the acts found to have constituted interference, restraint, and coercion in and under the cir- cumstances described and found in section III, supra, Re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7, and has thereby violated Section 8(a)(l) of the Act. 3. By recalling and reassigning its salesmen's demon- strator vehicles, by prematurely canceling its salesmen's "LTD" bonus contest, by shifting and transferring its salesmen to other jobs on and after April 30, 1979, and by discharging its employee Bob Hawkins on June 6, 1979, under the circumstances described and found in section III, supra, Respondent has discriminated in regard to the hire, tenure, and terms and conditions of employment of its employees to discourage membership in a labor organization, in violation of Section 8(a)(3) of the Act; and has, further, interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed them under Section 7, in violation of Section 8(a)(l) of the Act. 4. Respondent's augmentation of its salesforce and of its clerical force on and after April 30, 1979, under the circumstances described and found in section 11I, supra, as well as its shifting and transferring of its salesmen to other jobs on and after April 30, 1979, its discharge of its employee Bob Hawkins, and its other unfair labor prac- tices in violation of the Act have been with the purpose, intent, and effect of coercing and discouraging its em- ployees from continued lawful adherence to, membership in, support of, and activities on behalf of the Unions herein, as well as to prevent the Unions from becoming and acting as their certified collective-bargaining repre- sentatives, and so as to undermine said Unions' represen- tative status and dissipate and destroy their majority standing, and to render impossible or impracticable a free and uncoerced electoral choice on their part in the statu- tory election procedures under the Act. 5. Respondent's failures and refusals to recognize and bargain collectively with the Unions herein as the duly authorized bargaining representatives of its employees in the appropriate bargaining units, at all times on and since April 23, 1979 (Teamsters Local 604, on behalf of Re- spondent's salesmen), and April 26, 1979 (Teamsters Local 618 on behalf of Respondent's clerical employees), under the circumstances described and found in section III, supra, and with the purposes and effects set forth in Conclusion of Law 4, supra, have constituted and consti- tute continuing violations of Section 8(a)(5) and (1) of the Act. The appropriate collective-bargaining units are: All salesmen employed by Suburban Ford, Inc., excluding all office clericals, guards, professionals and supervisors as defined in the Act. All office clerical employees at the Imperial, Mis- souri, facility of Suburban Ford, Inc., excluding all salesmen, professional employees, guards and super- visors as defined in the Act. 6. The aforesaid unfair labor practices and each of them have affected, affect, and, unless permanently re- strained and enjoined, will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY We come to the matter of remedying Respondent's unfair labor practices. With regard to the unfair labor practices consisting of the 8(a)(l) violations found, the usual cease-and-desist provisions in such circumstances are required. With regard to the 8(a)(3) violations, not only is a cease-and- desist order required, but also a make-whole order re- quiring Respondent to make whole its salesmen for any economic losses or job-related damages or diminutions suffered by them because of the adverse personnel and job actions taken against them, as described and found herein, on and after April 30, 1979. These include back- pay in the case of Bob Hawkins, from June 6 through 8, 1979; loss of income, if any, to all salesmen whose jobs were shifted or changed on and after April 30, 1979, as herein found; losses, if any, to all salesmen, as the result of the withdrawal and change of their demonstrator ve- hicles on and after April 30, 1979, as herein found, and specifically including any added travel, fuel or other ex- pense attributable thereto; losses to all salesmen by reason of Respondent's premature withdrawal of its "LTD" bonus contest on April 30, 1979; and deprivation of income to its salesmen ascribable to Respondent's ad- dition of new salesmen to its salesforce on and after April 30, 1979, to dissipate the majority representative status of Teamsters Local 604, under the circumstances described and found in section III, supra. In addition, Bob Hawkins should be required to be made whole for any hospitalization, medical insurance, or similar benefit coverage, expense, or claim he or any person derivative- ly covered through him sustained by reason of any lapse, SUBURBAN FORD, INC. 373 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawal, or noncoverage during the period (June 6--8, 1979) he was in discharged status. Hawkins should also be restored to uninterrupted seniority on Respondent's books and records, the same as if he had not been in dis- charged status from June 6-8, 1979. All sums, benefits, and emoluments, with interest thereon, should be calcu- lated as explained in Isis Plumbing & Heating Co., 138 NLRB 716 (1962); F. W. Woolworth Company, 90 NLRB 289 (1950); and Florida Steel Corporation, 231 NLRB 651 (1977). Respondent should also be required to preserve and make available to the Board's agents its books and records for backpay computation and compliance deter- mination purposes, and to post the usual notice to em- ployees. In view of what I am compelled to regard as Respondent's deliberate assault on basic policies of the Act through the device of attempting to introduce addi- tional unaffiliated voters into the bargaining units so as to abort the free elections contemplated by the Act, I be- lieve and find it is equitable and proper that there be in- cluded in the recommended Order and notice a require- ment that Respondent not violate the Act in any way, since Respondent's described deliberate attempt to abort the election process appears to me to strike at "the very heart of the Act" (A. J. Krajewski Mfg. Co., 180 NLRB 1071 (1970)). Cf. .L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). There remains the question of whether, in the circum- stances, a bargaining requirement should be imposed under the principles enunciated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). I think it clearly should. In Gissel, a unanimous Supreme Court instructed that an electionless bargaining order may properly issue where an employer who has refused to recognize a union as here holding majority bargaining authorizational cre- dentials, in the interval while awaiting the statutory elec- tion which he (the employer) has demanded, engages in "pratices which . . . have the tendency to undermine majority strength and impede the election processes" (395 U.S. at 614), with the prospect of erasure of the ef- fects of such actions and assurance of fair election slight, so that "employee sentiment once expressed through cards would, on balance, be better protected by a bar- gaining order" (id. at 614-615). I find that, in the circum- stances here, particularly Respondent's "packing" of the two bargaining units in order to dispel the possibility of Board certification of the Unions after statutory elec- tions, "the possibility of erasing the effects of past prac- tices and of ensuring a fair election . . . by the use of traditional remedies . . . is slight and that employee sen- timent once expressed through cards would, on balance, be better protected by a bargaining order." Gissel at 614- 615.1n my view, it is plain that the actions of Respondent here, who equates joining a union-an employee right under the law of the land-with "disloyalty," and delib- erately resorts to the device of loading the bargaining units with unaffiliated and unneeded supernumeraries, whom it continues on job interviews conducted during this very hearing to assure itself are free from the taint of union sympathy, not only amply merit but require impo- sition of a Gissel bargaining order as within the very lan- guage of that Supreme Court decision. Since each of the Unions here, as explained and found supra, clearly com- manded majorities in each of the bargaining units when they made their bargaining request, a bargaining order should be issued under the authority of the Gissel deci- sion. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this consolidated proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 29 The Respondent, Suburban Ford, Inc., Imperial, Mis- souri, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Accusing any employee of disloyalty for joining a union or for exercising any other right or engaging in any lawful activity under the National Labor Relations Act. (b) Directly or indirectly threatening any employee with discharge because of union affiliation or exercise of any other right or for engaging in any lawful activity under said Act. (c) Soliciting complaints or grievances from any em- ployee so as, in violation of the Act, to undermine her or his union affiliation or exercise of any other right or lawful activity under the Act. (d) Promising or holding out to any employee eco- nomic benefits to induce the abandonment of her or his union support or any other right or lawful activity under the Act. (e) Threatening or informing any employee that it would be futile for employees to select a union as their bargaining representative. (f) Promising or holding out to any employee a con- tract, agreement, assured term of employment, or other job security or advantageous term or condition of em- ployment if the employee abandons her or his union af- filiation or any other right or lawful activity under the Act. (g) Canceling, withdrawing, or altering, by decrease or increase, any job-related economic benefit or other term or condition of employment, including premature with- drawal of any existing bonus or contest or competition, changing assigned demonstrator vehicles, or shifting or altering job assignments, to discourage any employee from union affiliation or the exercise of any other right or lawful activity under the Act. (h) Discharging, suspending, laying off, furloughing, or failing to reinstate or rehire, any employee because she or he has joined a union or exercised any other right or engaged in any lawful activity under the Act, or pro- poses to do so, or fails or refuses to discontinue to do so; or for the purpose of inducing, persuading, or causing her or him or any other employee to relinquish her or his union membership or to abandon or discontinue the '5' In he exent no exceptions are filed as provided b Sec 102 46 of the Rule, and Regulation, of the National Labor Relations Board, the indiidgs. colIclusuions, and recommended Order vhich follork herein shall. a provided in Sec 10248 of those Rule, and Regulation. he adoptled by the Board and become it, findings, conclusions. and Order. and all ohiectionl thereto hall he deemed waised for all purposes SUBURBAN FORD, INC. 375 exercise of any other right or to refrain from any activity lawful under the Act. (i) Augmenting its force of employees in any proposed collective-bargaining unit, subsequent to any bona fide demand for union recognition and collective bargaining, and while awaiting a statutory election under the Act, for the deliberate purpose of deranging and dissipating said unit, undermining the union's majority strength and impeding the election processes under the Act,3 0 and thereby preventing or aborting the exercise by employ- ees of their right under the Act to bargain collectively. j) Directly or indirectly engaging in any of the fore- going actions or activities or any like or related act in order to dissipate the collective-bargaining representa- tional status of its employees' lawfully designated collec- tive-bargaining representative, or for the purpose of causing its employees to discontinue or refrain from ex- ercising their right to bargain collectively with Respon- dent, or otherwise so as to interfere with, restrain, or coerce its employees in the exercise of the rights guaran- teed under the Act. (k) Failing or refusing to bargain collectively in good faith with Automotive Transport Chauffeurs, Demonstra- tors & Helpers, Local 604, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargain- ing representative of its employees in an appropriate unit consisting of all of its salesmen, excluding all office cleri- cals, guards, professionals, and supervisors as defined in the Act. (1) Failing or refusing to bargain collectively in good faith with Automotive, Petroleum and Allied Industries Employees Union, Local 618, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargain- ing representative of its employees in an appropriate unit consisting of all office clerical employees at its Imperial, Missouri, facility, excluding all salesmen, professional employees, guards and supervisors as defined in the Act. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization; to form, join, or assist any labor organi- zation; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activi- ties, except to the extent that such right may be affected by an agreement lawfully requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Make each salesman in its employ on April 30, 1979, whole for all pay, commissions, seniority, privi- leges, benefits, and emoluments lost, and for all extra costs and expenses sustained, by reason of Respondent's actions on and after April 30, 1979, in (1) withdrawing its "LTD" bonus contest prior to the previously desig- nated expiration date thereof, (2) withdrawing from its salesmen their demonstrator vehicles and substitution of A 1 R, B s (,.l P,AmK C, l, . 395 S t 614 119h4 ) other vehicles therefor, (3) reassigning its salesmen to other jobs, and (4) augmenting its salesforce with addi- tional salesmen in order to dissipate and destroy the ma- jority representational status of its salesmen's union; to- gether with interest thereon, calculated in the manner set forth in the remedy portion of the Decision of which this Order forms a part. (b) Additionally make whole its salesman Bob Haw- kins for all pay, commissions, seniority, privileges, bene- fits, and emoluments lost, and for all charges, costs, and expenses sustained (including all hospitalization, medical, and similar costs and expenses, if any, by reason of job- related insurance coverages lost, lapsed, or withdrawn) by reason of his discharge by Respondent from June 6 though June 8, 1979, together with interest, in the manner set forth in the remedy portion of the Decision of which this Order forms a part. (c) Expunge from all of Respondent's books and re- cords any entry of mention indicating or to the effect that the termination of Bob Hawkins on June 6, 1979, was because of any contravention or infraction of any of Respondent's rules, requirements, or policies, or because of any fault or work-related deficiency or shortcoming on his part; and refrain from making any such report or statement voluntarily or in response to any inquiry from any employer, prospective employer, employment agency, unemployment insurance office, or reference- seeker or inquiry. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage rate and other records, work schedules, production reports and data, social security payment records, timecards, personnel records and re- ports, and all other records and entries necessary to de- termine the amounts of backpay and other sums and benefits due under and the extent of compliance with the terms of this Order. (e) Upon request, recognize and bargain collectively in good faith with Automotive Transport Chauffeurs. Dem- onstrators & Helpers, Local 604, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as of April 23, 1979,3' as the exclusive collective-bargaining representative of Respon- dent's employees in the aforesaid salesmen's appropriate collective-bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and embody in a signed contract any understanding reached. (f) Upon request, recognize and bargain collectively in good faith with Automotive, Petroleum and Allied In- dustries Employees Union. Local 618, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as of April 26, 1979,32 as the exclusive collective-bargaining representative of Respon- dent's employees in the aforesaid appropriate clerical em- :I Cf radmi, Pi ,r , . 219 N[ RH 208. 3( 3)l ( 1q'5): \ . RH B Eagle .tlf /eal 1tau/lig. . 558 F 2d 160). 163. tI8 (3d Cir IQ"'') 4 L... Sportlyrr A ,,J X .\ 1. R B. 541 2d 73q. 744 (I( lh Cir I 4'h) The b.lrglililig rcuc rd r cfd rila l. a wcll .a thc ,,rcpl)tolln the unfair lahol r pratice, hcrc. ,ert .li in A piill Caf a, l 237 NI R '48. fl 7 (- ldi " 1t1 SUBURBAN FORD. INC. 375 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees' collective-bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed contract any understanding reached. (g) Post at its premises at South Highway 61-67, Im- perial, Missouri, copies of the attached notice marked "Appendix B." 33 Copies of said notice, on forms pro- 33 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." vided by the Regional Director for Region 14, after being signed by Respondent's authorized representative, shall be posted in said premises by Respondent immedi- ately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (h) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.