Milwaukee Nash Co.

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MILWAUKEE NASH COMPANY and ALFRED H. FENNER MILWAUKEE NASH COMPANY and UNITED AUTOMOBILE SALESMEN, LOCAL 174, affiliated with UNITED OPTICAL & INSTRUMENT WORKERS, CIO.' Cases Nos. 13-CA-1085 and 13-CA-1108. June 22, 1953 DECISION AND ORDER On March 23, 1953, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled consolidated pro- ceeding, a copy of which is attached hereto, finding that Respondent Milwaukee Nash Company has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act as alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The charging parties, including the Union, joined with the General Counsel in the exceptions and supporting brief filed by him. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]- The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the brief, and the entire record in the case, and hereby adopts the Trial Examiner 's findings, conclusions, and recommendations except insofar as they are inconsistent with our findings, conclusions, and order as herein set forth. 1. The General Counsel has excepted to the TrialExaminer's finding that the Respondent did not violate Section 8 (a) (3) by discharging employees Alfred H. Fenner, Richard Stahl, and Raphael Christopher. Particularly, the General Counsel excepts to the Trial Examiner's resolution of credibility issues. The record, especially those portions cited by the General Counsel in his exceptions, reveals some apparent inconsistencies in the testimony of Irving B. Rosenberg, a witness credited by the Trial Examiner. The Board, however, will not overrule a Trial Examiner's findings as to credibility unless the evidence on the record considered as a whole clearly preponderates against those findings.' While the Board itself may have reached a different conclusion, the testimony of Rosenberg and that of other witnesses credited by the Trial Examiner, when considered in the context of the entire record, is not im- plausible.' We affirm the Trial Examiner' s findings as to IThe name of the Union is changed to conform to that contained in the charge in Case No 13-CA-1108 and in the record 2Cathey Lumber Company, 101 NLRB 1406; Standard Dry Wall Products, 91 NLRB 544 3Cf. Salant & Salant. Incorporated, 92 NLRB 343 105 NLRB No 106 MILWAUKEE NASH COMPANY 685 credibility and his dismissal of the allegation in the complaint that the Respondent violated Section 8 ( a) (3) of the Act. 2. We find , contrary to the Trial Examiner, that the Respond- ent by the following interrogatories and statements interfered with, restrained , and coerced its employees in violation of Section 8 (a) (1) of the Act : ( a) Rosenberg' s interrogation of small groups of new -car salesmen on February 18, 1952, while showing them a letter from the Union in which it claimed majority status and requested recognition , by the comment and question , " Look what we got in the mail , what do you think of that ?"; ( b) Rosenberg ' s interrogation of the salesmen at a sales meeting about February 1, 1952, by the question, "are all you men still interested in the Automobile Salesmens Union? "; ( c) Rosenberg ' s interrogation of employee Christopher on the sales floor sometime during the first 2 weeks of February 1952 as to whether Christopher had joined the Union; (d) Rosenberg ' s further interrogation of Christopher on this subject during the last part of the second week in February 1952 accompanied by the statement , " I understand you joined the Union ," and upon Christopher ' s denial, by the additional statement , " Who are you trying to kid . . . I under- stand you did sign a card . . . therefore you are a union member and, well , you are just a unionmember and that is it." We do not agree with the Trial Examiner ' s views as to the general effect of a denial of certiorari in the Winer case. Syracuse Color Press , Inc., contains the most recent expres- sion of the Board' s views on interrogation as a violation of the Act.4 3. The General Counsel has also excepted to the Trial Examiner ' s comments with regard to a proposed settlement agreement , signed by the Respondent , but never executed by the parties . We find merit in this exception and do not adopt these comments of the Trial Examiner relating to the authority of field examiners and the policy of the Board with regard to settlement agreements. THE REMEDY We have found that the Respondent enga ed in certain unfair labor practices in violation of Section 8 (a) (1) of the Act. The record reveals that the Respondent in connection with the above- proposed settlement agreement has already posted the usual Board notice to its employees advising them that it would not interfere with, restrain, or coerce its employees in the exercise of their right to self-organization . The notice was posted on June 30, 1952, and remained posted at least until November 26, 1952, the last day of the hearing . This period is in excess of the usual 60-day period normally required by the Board for the posting of notices . In view of this fact we find that it is not necessary to effectuate the policies of the Act to order the Respondent to post a further notice. 4 103 NLRB 377 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Milwaukee Nash Company, Milwaukee, Wisconsin, its officers, agents, successors , and assigns , shall: Cease and desist from: Interrogating its employees, or in any like or related manner interfering with , restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist United Automobile Salesmen, Local 174, affiliated with United Optical & Instrument Workers, CIO, or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent has discriminated against Alfred H. Fenner, Richard Stahl, and Raphael Christopher. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed August 4, 1952,1 by Alfred H. Fenner as an individual and docketed in the Thirteenth Regional Office (Chicago, Illinois) of the National Labor Relations Board (herein called the Board) as Case No. 13-CA-1085, and a charge filed April 29, 1952, by United Automobile Salesmen, Local 174, affiliated with United Optical & Instrument Workers, CIO (herein called the Union), and docketed by said Regional Office as Case No. 13- CA-1108, the Regional Director for the Thirteenth Region, after having issued an order con- solidating the cases and as agent for the Board, issued a consolidated complaint dated October 17, 1952, against Milwaukee Nash Company (herein called the Respondent) alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, the order consolidating the cases, and notice of hearing were duly served upon all the parties subject to service. In substance the complaint alleges and the answer denies that the Respondent: (1) Illegally interrogated its employees concerning their union membership and activities; (2) discrimina- torily discharged three named employees; and (3) by said acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 and more particu- larly violated Section 8 (a) (3) and (1) of the Act. Pursuant to notice a hearing was held before Louis Plost, the undersigned Trial Examiner, at Milwaukee, Wisconsin, on November 24, 25, and 26, 1952. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and/or proposed findings and conclusions. A brief has been received from the Respondent. 'Original charge filed April 9, 1952. MILWAUKEE NASH COMPANY 687 Upon the entire record in the case and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges that: 1. Respondent is now , and at all times herein mentioned has been , a corporation duly organized and existing by virtue of the laws of the State of Wisconsin , with its sole office and salesroom located at Milwaukee , Wisconsin , where it is engaged in the purchase and sale of new Nash automobiles , trucks, parts , and used automobiles of all makes. 2. Respondent, in the course , conduct, and operation of its business, sells and distributes Nash automobiles under a franchise from the Nash Motors Division of Nash-Kelvinator Corporation . During the year 1951, it purchased cars and trucks valued at approximately $1,500,000 from said Nash Motors Division of Nash -KelvinatorCorporation , an interstate enterprise doing business nationally throughout the United States. The Respondent's answer admits its corporate structure and further: Admits that it is engaged in the business of selling Nash automobiles which it purchases from Nash -Kelvinator Corporation in Kenosha , Wisconsin , under an Agreement which is terminable at will by Nash-Kelvinator Corporation . It also admits that it purchased Nash cars in the year 1951 in the value of approximately a million and a half dollars from Nash-Kelvinator Corporation. The Board has consistently held automobile dealers to come within the ambit of the Act. The position of the Board has been sustained by the courts.2 With respect to the operations of a dealer who obtains the automobiles he sells in the State where they are manufactured and sells them within that State the Board has held that if such a dealer operates under a "franchise " from the manufacturer , such operations are an integral part of the operations of the manufacturing company which is of course engaged in commerce within the meaning of the Act. Irrespective of a dealer 's handling of goods having an out-of-State origin , the ground , above referred to, is sufficient to sustain the conclusion that the dealer 's operations affect commerce because they are an integral part of a multistate enterprise. The vital position of the automobile dealer in the automobile industry was recognized by the Court of Appeals for the First Circuit in N. L. R. B. v. Henry Levaur , Inc., 115 F. 2d 105, certiorari denied 312 U. S. 682, when it noted that dealers "are integral parts in the distribution of automobiles in interstate commerce . . .' (115 F . 2d at 108). However a case in which the Board asserted this position has been recently overruled by the United States Court of Appeals for the Sixth Circuit. s In its decision the Sixth Circuit points out that it is in conflict with decisions in similar matters by the United States Court of Appeals for the First Circuit in N. L. R. B. v. Ken Rose Motors , 193 F 2d 769, and N. L. R. B. v. Somerville Buick, 194 F 2d 56. However until the conflict is resolved contra to the Board's line of decision the undersigned, with due respect to the Sixth Circuit, will recommend a finding that conforms to that heretofore adopted by the Board. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent in its answer challenged the status of the Union as a labor organization within the meaning of the Act. ZN. L. R. B. v. Somerville Buick, Inc , 194 F. 2d 56 (C. A. 1); N. L. R. B, v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A 1); N. L R. B. v. Henry Levaur, Inc , 115 F 2d 105 (C. A. 1), certiorari denied 312 U. S 682; N. L . R. B. v. Wentworth Bus Lines et al., 191 F. 2d 849 (C. A. 1); N. L R. B. v . J C. Lewis Motor Co , Inc., 180 F. 2d 254 (C. A 5); Williams Motor Co. v. N L R B., 128 F 2d 960 (C. A. 8); N. L. R. B. v Townsend, 185 F . 2d 378, 382 (C. A. 9), certiorari denied 341 U S. 909; N . L. R B. v. Davis Motors, Inc , 192 F 2d 782 (C A. 10); N. L. R. B. v. Conover Motor Co., 192 F. 2d 779 (C. A. 10) 3N L R B v. Daniels , Inc., 202 F. 2d 579 (C A. 6). 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chester Michalak4 testified that: He was one of the original organizers of the Union, the Union was organized to bargain collectively regarding wages, hours, and conditions of employment for employees of various automobile dealers in Milwaukee; all Milwaukee automobile salesmen were eligible to membership, from January to March 1952, the Union was affiliated with the Amalgamated Clothing Workers, C.I.O.; and this International Union relinquished the Union to the International CIO, which "in turn turned them over to the Optical Workers."5 The record is clear that the Union since its present affiliation has bargained for members, signed an agreement affecting its members, and filed the charge in 13-CA-1108. III. THE UNFAIR LABOR PRACTICES A, The alleged discriminatory discharges 1. Alfred H. Fenner Alfred H. Fenner was employed by the Respondent in mid-January 1952 as a new-car salesman. Fenner had 15 years' experience as an automobile salesman. Fenner testified that he was hired by Irving B. Rosenberg, the Respondent's president, who at the time "said that he knew I was interested in union activity; ... that it didn't matter to him what union affiliation I had, it was the job I could perform for him." Shortly after he was hired Fenner became president of the Union. According to Fenner on "a half dozen" occasions between his election and February 23, he was greeted by Rosen- berg with the remark "Hi Pres, how's the union making out," however Fenner testified these remarks were made "just in passing." He further testified that "about a week or ten days" after he was hired Rosenberg told him, "Fenner your sales aren't up to my expectations and I think you are devoting a little too much time to your union activities," however Fenner also testified this remark was made during a conversation "primarily regarding my work, not union activity." According to Fenner, corroborated by Raphael Christopher, during a regular salesmen's meeting in Rosenberg's office, about 2 weeks after he was hired: Rosenberg said are all you men still interested in the Automobile Salesmen's Union and I immediately got up and said this is no place to discuss union activities so the meeting was then dispersed and there wasn't anything more said at this meeting. Fenner further testified that he was not called to any more salesmen 's meetings; and that "I never realized that I wasn't asked to attend these meetings"; that he later asked Rosen- berg why he was not called to meetings and was told that "I wasn't involved in these par- ticular discussions or meetings." According to Fenner "two or three" such meetings took place. In February theUmon, in a letter signed by Fenner requested recognition by the Respondent. Fenner testified that "about a week" after this letter was sent to the Respondent he was discharged. Fenner testified: I was called into Mr. Rosenberg's office by his secretary. When I came into the office Mr. Rosenberg says I am sorry to inform you that your services are no longer required, here's your check and you are dismissed from our company. Then he showed me the records of the company as to their losses and I says I don't think that this is the primary reason of my discharge and I accepted my check and walked out of the office. The record discloses that this discharge took place February 23. Rosenberg testified that sometime before he employed Fenner he had been told that Fenner was discharged by his former employer because of union activity; that he knew Fenner had been elected president of the Union; that Fenner and he had "three or four" long discussions regarding the relationship of employers and unions, Fenner asking him the "dealer's view- point" with respect to evening and Saturday closing, and what matters should be in, or kept out of, a contract. 4Michalak testified that he was not presently connected with the Union. No present officer or official of the Union was called by the General Counsel to testify with respect to its status. 5 United Optical & Instrument Workers, CIO. MILWAUKEE NASH COMPANY 689 Rosenberg testified that he had spoken to Fenner regarding his poor showing as a salesman. With reference to Fenner 's discharge Rosenberg testified: Q. How did you happen to discharge Fenner on or about February 23, 1952 , what led up to that? A. Well, the fact that his sales , well, he had no sales, we were running various, I keep a record in my office, my bookkeeper keeps a record what each man produces for us and every time I saw those records , every other day or so. Fenner was doing absolutely nothing and in fact people were coming in our show room , he was waiting on them and not selling them. In our estimation he was wasting a lot of floor play. Q. Is that the reason you discharged him on February 23, 1952? A. That's the reason. Rosenberg further testified that he did not tell Fenner not to come to salesmen 's meetings; that no invitations are issued for such meetings ; that such meetings are announced to the men by the telephone operator and "everybody must attend." On February 27 or 28, Fenner , together with two union officials , called on Rosenberg at the Respondent's office where according to Fenner: I told him that we were here to be recognized as a bargaining representative of Local 174 in reference to wages and various other sundry of our Local and Mr. Rosenberg said, well, he felt that we didn't have the majority and one of our representatives said--- Q. Do you remember which one? A. Paul Rademacher said the only reason that we can prove to you is you count noses out on the picket line and that will prove that we have majority in your organization. Trial Examiner Plost: Didn't you offer to show union cards? The Witness: No. The Union immediately called a strike which was joined by four of the used-car salesmen. Thereafter by an agreement dated March 4, 1952 , the Union called off the strike, the parties agreed to arrange for a "consent" representation election to be conducted by the Board; agreed that Fenner would be eligible to cast a "challenged " ballot in such election, to be counted only if the Board determined that Fenner had been unlawfully discharged, that meanwhile Fenner should be reinstated but "his future status as an employee shall be controlled by such determination to be made by the National Labor Relations Board." Fenner was thereafter reinstated as a used-car salesman. Rosenberg testified without contradiction that at the time the agreement ending the strike was made he told the union officials that the Respondent had work available only in the used-car department. Fenner admitted he agreed to the used -car assignment. Rosenberg testified that when Fenner and the union officials called on him "they barged into my office past the receptionist." otherwise his account of the calling of the strike and its settlement does not contradict Fenner's version. Fenner further testified that within "a week's period" after the strike, at a salesmen's meeting in Rosenberg's office, "he asked the boys if they were still interested in the union and I immediately objected to have a union meeting held in his office "; that Rosenberg then said, "Fenner spent a little too much time in union activities " and also: The question was brought up as to discharges, if any, and Mr. Rosenberg made this statement. He says the first man that will be discharged from my organization will be Al Fenner and I'll see to it that he'll walk the sidewalks because he got me over the barrel. As found herein Fenner had previously testified that prior to the strike, Rosenberg asked ,.are all you men still interested in the union and I immediately got up and said this is no place to discuss union activities " and that thereupon the meeting was closed. Fenner had also previously testified that "just in passing," during a discussion of Fenner 's sales record, Rosenberg said "you are devoting a little too much time to your union activities." Raphael Christopher corroborated Fenner 's account of the alleged meeting before the strike as follows: There was a discussion about the union and I said to him this is no time or place to discuss unions , at a sales meeting and he dropped the subject right then and there. One of the men, Mr. Waestendick , he wanted to put in a few words and it was stopped. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Christopher testified, "I think that he [Fenner] said the same thing." With respect to the second meeting after the strike Christopher made no mention of Rosenberg's statement regarding the employee's interest in the Union, or Rosenberg's statement regarding Fenner's spending too much time in union activity, but testified that Rosenberg pointed his finger at Fenner and said "if its the last thing I do you got to go" and then said "something about--he's got him over a barrel or something," Richard Stahl testified that at a meeting, the date of which he could not fix, but at which Fenner was not present, Rosenberg said that he had done Fenner a favor by hiring him and now he puts me over a barrel " With respect to a salesmen's meeting which he fixed on March 7, 1952, Franklin A. Headson testified: At that meeting Mr. Rosenberg asked if all the boys were still interested in the union and with that Mr. Christopher and Mr. Fenner objected that that was no place to discuss union matters and Mr. Rosenberg then said, well, all right, we'll forget about it, but you Fenner I'm after you and I'll get you. Right now you have got me over the barrel, but you'll be the first to go. The above-related testimony convinces the undersigned that if at any meeting Rosenberg questioned the salesmen as to their then interest in the Union, followed by the immediate protests of Fenner and Christopher, the incident occurred not before the` strike but after the strike. In the light of all the evidence considered as a whole such a question before the strike would have been meaningless. The undersigned is further persuaded, by the entire record, that any reference by Rosen- berg to Fenner's union activity was "made in passing" in a private conversation and not in an open meeting as testified to in one version thereof by Fenner. The undersigned is therefore convinced that these remarks, if made by Rosenberg, add no support whatever to the General Counsel's contention that Fenner was discharged in February because of his activity on behalf of the Union. Rosenberg testified that he at no time, at any salesmen's meeting, pointed his finger at Fenner and said he would be fired at the first opportunity; that Fenner had him "over a barrel"; that he ever threatened in the presence of others to discharge Fenner; or that he made "anything like" such statements. Because of the inconsistencies in the testimony of Fenner, Christopher, Stahl, and Headson, from all the evidence considered as a whole and his observation of the men while on the witness stand the undersigned credits Rosenberg and is persuaded that Rosenberg at no time either before or after the strike, at any salesmen's meeting, threatened in effect to discharge Fenner at the earliest opportunity because Fenner had put him "over a barrel," or that he at any salesmen's meeting, or in the presence of others, told Fenner that he spent a little too much time on union affairs, or words to that effect. The undersigned so finds. Christopher testified that at the first salesmen's meeting after the strike Rosenberg "laughed" and said to the salesmen, "well you don't want me to tell you what goes on, so I can't"; that at subsequent meetings, the time of which he did not fix, Christopher testified: Well, he [Rosenberg] would start off his sales meetings something like this. He would say well, I am not supposed to talk about union but what do you want with a union. If you want a contract I'll give you a contract, he says, if you want it signed by an attorney, your attorney, my attorney, what difference does it make. We'll sign one up and forget this union business and let's go out and sell some cars. Richard Stahl testified to the first salesman's meeting after the strike as follows: Q. What was said by Mr. Rosenberg, if anything, about the union or union activities at that meeting? A. Well, he talked about, he always made it a point to say-- Q. Just testify about this meeting. A. Shouldn't talk about the union, he understood he said that he shouldn't be talking about the union. He said what do you need a union for, you can tell me what you want and if it's reasonable we can work something and then we would explain to him that we wanted job security or other times they brought up the fact they wanted better cars to drive and he said that we should forget about the union and that he would, that we should make out our own contract and if he thought it was reasonable be would sign it. MILWAUKEE NASH COMPANY 691 In accordance with the strike-settlement agreement the Respondent and the Union Signed a "consent election" agreement March 6, 1952. The date for the holding of the election does not appear in the agreement. On March 20, the Regional Director for the Thirteenth Region informed the Respondent by letter that the Union had withdrawn the petition for the election, "with my approval." On March 21, the Respondent wrote the Union: We are advised by the National Labor Relations Board that you have withdrawn the petition for election. In view of the fact that the agreement of March 4, 1952 between Local 174 and the Milwaukee Nash Company was to be in effect only until an election could be held, we assume that your withdrawal of the petition for election constitutes a cancellation of the agreement of March 4th. Consequently, unless we hear from you to the contrary, we will consider that agreement at an end. The Union did not reply. Rosenberg testified he showed the Regional Director 's letter to the salesmen. At the same time: And during, in that discussion I told the men that if they had some grievances that they'd like to bring up or if there are some working conditions with which they are dissatisfied I think they ought to state them , write them down, well have a little short meeting on the subject and I'll put down some of the ideas I have for salesmen benefits, let's kick them around see what you want and what I'd like done, maybe we can work out some kind of an employment agreement for salesmen that I can use in the future in my business. As hereinabove found Rosenberg denied he told the salesmen that he intended to discharge Fenner, or that he talked to them with respect to their union activities. Neither Fenner , Christopher , Stahl, nor Headson impressed the undersigned as wholly truthful witnesses. Their testimony does not agree as to the dates of the events to which they testified, in fact no time was definitely fixed, except by Fenner who placed all the alleged illegal remarks in the one meeting he attended after the strike after having also placed the same remarks in another meeting, held before the strike. From his observation of Fenner, Christopher, Stahl, and Headson while testifying, as well as the record considered in its entirety, the undersigned does not credit their testimony with respect to the salesmen 's meetings and Rosenberg's conduct at such meetings. Rosenberg impressed the undersigned as a reliable witness , one who made no attempt to evade answering questions damaging to his cause, the undersigned therefore credits his testimony and finds that Rosenberg's account of the statements he made to the Respondent's employees to be the accurate version thereof. The undersigned therefore finds that the evidence does not support the contention that Rosenberg made statements to the Respondent's employees which were in themselves violative of the Act. The undersigned further finds that Fenner was not prohibited by the Respondent from attending any of the salesmen's meetings either as a new-car salesman, when he was so employed, or any used-car salesmen's meeting when he worked as a used -car salesman. Fenner testified that shortly after the strike the Respondent's used-car sales manager assigned him a quota of 5 cars to be sold within 1 week on pain of discharge if he failed. Fenner admitted he did not meet the quota and was told to try to better his sales, but was not discharged. Charles Goldstein, the Respondent's used-car sales manager, testified that after the strike Fenner 's sales record was poor; that Fenner was away from the sales lot a great deal of the time; that he was informed by other dealers that Fenner visited their lots during hours Fenner was required to be at the Respondent's place of business; that he reprimanded Fenner for his absenteeism and that Fenner admitted he had been absent from his work to visit another dealer's place of business. Goldstein testified without contradiction that Fenner's sales record was. January 1952 $ 50 February 165 March 137 April 40 Fenner testified that at his prior place of employment his average earning were $580 a month. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fenner did not deny Goldstein's testimony; testified that he had never been reprimanded by Rosenberg and then testified that "Rosenberg approached me and said I understand that you are working on union activities in the evening." Fenner admitted that he spent "two hours" each week "going around to other agencies" and about "four hours each week" at the Union's hall, but maintained that this was all time after working hours; however _it. is , apparent that at least the time Fenner spent at other agencies must have been duritig regular business hours. Goldstein testified that Feistier was discharged because of his poor sales record and absenteeism. Rosenberg testified that he discharged Fenner for the reason that: He still didn't sell anywheres near what he should have sold, very few cars. He wasn't around half the time. I couldn't find him when I wanted him. The Respondent contends that the Union having withdrawn its petition for the representa- tion election, the agreement between the Respondent and the Union under which Fenner was holding his job pending an election and a determination of his status was at an end and therefore the Respondent was under no obligation to keep Fenner in its employ as he did not measure up to its standards of performance. On the entire record the undersigned finds that the General Counsel has not sustained the burden of proof with such reliable, probative, and substantial evidence as to clearly establish that the Respondent discharged Alfred H. Fenner on February 23 or on April 4, 1952, because he engaged in concerted activity within the meaning of the Act or because he joined or assisted the Union as alleged in the complaint. The undersigned finds that the Respondent discharged Albert H. Fenner on February 23, 1952, and again on April 4, 1952, for the reasons advanced by it at the hearing namely because Fenner's sales record was poor and his record of absenteeism was bad. The undersigned will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent illegally discharged Alfred H. Fenner.6 2. Richard Stahl Richard Stahl was employed by the Respondent as a used -car salesman on February 7, 1952. Stahl testified that he was a member of the Union when he was hired; that on the day he was hired or on the following day Al Martin, who was the manager of the used-car depart- ment at the time, told him that Rosenberg had asked if Stahl belonged to the Utiion and that he had told Rosenberg that Stahl was a member. Stahl further testified that while he was employed by the Respondent he attended union meetings , "talked to some of the new-car salesmen about joining the union," jostled the strike herein mentioned, and "helped some of the other salesmen that were an strike picket at times." Stahl further testified that "at one particular" salesmen's meeting after the strike Rosen- berg remarked that the Union did not represent a majority and said "there's one man in this room that won't vote for the union," whereupon, according to Stahl he challenged Rosenberg's statement with the remark "I'm from Missouri, I want to be shown"; that after the meeting Rosenberg remarked to him that following his statement that one man would vote against the Union, he noticed Stahl's face was "turning pink." Stahl testified that on May 3, 1952, the used-car lot manager told him to "see Mr. Rosen- berg"; that he went to Rosenberg's office who told him that he "would have to let me go" because Stahl's sales were poor; that he told Rosenberg he knew that his sales record was 6Rosenberg testified that on the evening of April 4 (the day Fenner was discharged) Fenner and one Donald Drobac, the union official who signed the charge in 13-CA-1108, accosted him and that Drobac then beat him severely. The General Counsel objected to this testimony on the grounds that the incident occurred after the discharge and further that Fenner was not involved. The undersigned overruled the objection. Fenner admitted he and Drobac drove up to the Respondent's place of business; that Drobac and he left their car and went up to Rosenberg who was leaving the premises; that Fenner held Drobac's coat; and that Rosenberg was severely beaten by Drobac. The under- signed makes no findings on this testimony. MILWAUKEE NASH COMPANY 693 poor but attributed it to the kind of cars the Respondent had to sell; that Rosenberg then suggested that Stahl seek employment with dealers who sold better conditioned used cars, named two such dealers to whom he would recommend Stahl and gave him a card on which he wrote "Dick Stahl is an honest and sincere salesman, he was discharged for lack of business." The card was not produced. On cross-examination Stahl admitted Rosenberg offered him the opportunity to sell new cars, but that he did not accept Rosenberg's offer. On rebuttal Stahl testified that after his discharge the Respondent did not again "contact" him or offer him "a job to sell new cars." On cross-examination to his rebuttal testimony Stahl testified: Q. (By Mr. Harding) But he offered you an opportunity to sell new cars before that, hadn't he? A. He did offer it when he had cars to sell, but I mean there was no definite night or day involved. Rosenberg testified that on May 3, as Stahl passed his office he called him in and asked "how things were going"; that there then began a discussion regarding Stahl's sales record, which was poor; that Stahl attributed his poor record to the fact that he was trained to sell better cars than those offered by the Respondent and that he was not accustomed to the kind of customers visiting the Respondent's lot; that Stahl then stated he wished to try selling used cars as an independent agent; that Rosenberg offered to furnish him cars to sell and also suggested to Stahl that he "switch over into the new-car department maybe you'll get a different class of customers"; that Stahl then drew all the money due him and that Stahl never availed himself of the offer made him regarding either used cars or entering the new-car department. On the entire record, including his observation pf Stahl and Rosenberg on the witness stand, the undersigned credits Rosenberg 's account of the discussion between the two men as the more accurate version thereof. The undersigned is further convinced that the attempt to create an impression of hostility toward Stahl on the part of the Respondent because of Stahl's union membership is wholly without foundation. It is quite clear that the Respondent hired Stahl with full knowledge of his union member- ship; to infer that Stahl's "I'm from Missouri" remark as made to Rosenberg was a chal- lenge hurled at an employer engaging in unfair labor practice , and a remark which some 2 months later had some undisclosed illegal bearing on Stahl's discharge is in the opinion of the undersigned straining to magnify the trivial. In the opinion of the undersigned the structure so meticulously erected by the General Counsel, to be called "Unfair Labor Practices with respect to Richard Stahl," is built of minutiae and upon examination appears to be no more substantial than a house of cards. The undersigned, upon the entire record in the case, including his observation of the witnesses, finds that on May 3, 1952, Richard Stahl voluntarily quit his employment with the Respondent, further finds that the Respondent did not discharge Stahl because of his union membership or his activities in its behalf, or because of any concerted activities he may have engaged in with other employees of the Respondent. The undersigned will recommend that the complaint be dismissed insofar as it alleges that the Respondent illegally discharged Richard Stah . 3. Raphael Christopher Raphael Christopher was employed by the Respondent as a new-car salesman on January 2, 1952. He had no experience whatever as an automobile salesman when hired. Sometime in February, Christopher joined the Union. Shortly after he joined the Union, according to Christopher, he was asked by Rosenberg whether he had joined and replied that he had not done so. Some days thereafter Rosenberg again asked if he had joined and, ac- cording to Christopher , upon being given a negative reply.Rosenberg remarked "who are you trying to kid. I understand you signed a card." Christopher testified that on February 23, which was the day of Fenner's original dis- charge, Rosenberg told Christopher that he "had to let him go" because of business con- ditions but offered him a transfer to the used -car department, telling him that Fenner was also being so transferred. Fenner however was discharged. Christopher accepted the trans- fer and worked on the used-car lot before the strike, which he joined. He was present at the conference when the strike settlement was made, and returned as a used -car salesman after the strike-settlement agreement was signed , as found herein, on March 4. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Christopher was discharged June 7, 1952. According to Christopher, at about 11 a.m. on June 7 he and Charles Goldstein, who was at that time the manager of the used-car department, were "working on a sale" during which time Goldstein was called to the telephone. Christopher testified that all he heard of the conversation was Goldstein saying "Yeah, Yeah," and "I'm helping Chris with a deal." After this conversation Goldstein returned to him. They "lost" the sale and Goldstein left, returning in about 5 minutes with Christopher's check which he gave him, telling him that he was discharged. Christopher accused Goldstein of discharging him because Goldstein had seen him with Paul Rademacher, a union representative, the preceding night. Christopher testified that Paul Rademacher called on him the preceding evening and while Rademacher and he were together. Goldstein pointed to Rademacher. Goldstein being then engaged in conversation with "another person" not otherwise identified. Goldstein testified that he saw Christopher and some man he did not recognize engaged in conversation the night before he discharged Christopher. He further testified that Christopher was always "low man" on each week's sales record, and was discharged because of his poor sales record. Goldstein admitted that at one time he set a sales quota of 5 cars each for Christopher and Fenner, for 1 week, which Christopher met. Testifying from sales records kept by the Respondent, Goldstein maintained that Christo- pher was always the "low man," however the record did not sustain him. Goldstein testified, and the Respondent's record as produced shows, that during 1 certain month 1 of the sales- men earned $1,995.65 while Christopher earned $355.10, but Goldstein admitted that the $1,995.65 amount was really earned by 2 men who "pooled their sales." After considerable testimony by Goldstein regarding Christopher's earnings which were admittedly low,7 the attorney for the Respondent made the following statement to the under- signed: Mr. Harding: He,[Goldstein] testified to the chart which showed the number of cars sold by salesmen. He might have very well been low man on number of cars sold. Trial Examiner Plost: If a man sold a car and made five hundred dollars, another sold four cars and made two hundred dollars, he'd still be low man? Mr. Harding: That's right. Rosenberg, who was called after the above-indicated interchange, testified that the value of a used-car salesman's services was not determined by the amount of his sales, or his earnings, and was not entirely measured by the number of cars he sold. Rosenberg testified: Trial Examiner Plost: The number of cars that a man actually sells is not a true reflection of his value to you? The Witness: It's part of the reflection, it's not the whole thing, no. Trial Examiner Plost: And the amount of money that he gets for a car or the amount of commission he makes for himself does not determine the amount of money he is making for you? The Witness: That's right. Although Goldstein's testimony with respect to Christopher's earnings was not completely substantiated by the Respondent's records, and Goldstein's attempt to misinterpret these records in order to make Christopher's record appear worse than it really was, renders suspect the Respondent's testimony with respect to Christopher, yet the fact is clear that Christopher was not a valuable producer from any point of view. This alone would be a valid excuse for his discharge. Although the Respondent's motive is suspect because of the fact that it ''does protest too much," on the other hand the evidence adduced by the General Counsel to support the contention that Christopher was illegally discharged is not sufficiently persuasive to overcome it, therefore, although the matter is not entirely free from doubt, the undersigned finds that the General Counsel has not sustained his burden of proof in support of the complaint by a preponderance of credible evidence insofar as it alleges that the Respondent discharged Raphael Christopher because he engaged in concerted activities and joined and assisted the Union. The undersigned will recommend that the complaint be dismissed insofar as it alleges that the Respondent discharged Raphael Christopher in violation of the Act. TChristopher's earnings averaged $215 per month. Salesmen not involved herein averaged $602, $597, $514, $408, and $331 per month Fenner averaged $157 per month and Stahl $236 per month. MILWAUKEE NASH COMPANY B. Alleged interference , restraint , and coercion Interrogation 695 As herein found on February 18, 1952, the Respondent received a letter from the Union wherein the Union claimed to represent a majority of the Respondent 's salesmen and re- quested recognition as their bargaining agent. Irving B. Rosenberg, the Respondent's president, testified that he took the letter to the sales floor "as soon as I got it" and showed it to groups of salesmen congregated at various desks; telling them "Look what we got in the mail, what do you think of that"; that he left the letter with the salesmen; that later it was brought to his office by one of the men who informed him the men did not wish to be represented by the Union ; that he also showed the letter to Fenner.8 Rosenberg further testified that the salesmen told him to write a letter to the Union and "tell them they did not want representation ." Rosenberg, on the same day, wrote the Union: Gentlemen: According to a poll taken among our new and used car salesmen today , there is not a majority of them who have designated their desire to have your organization represent them in negotiating any changes in wages , hours, etc. If at some future time , the majority shall so designate, we shall be pleased to discuss the matter further with your representatives,, The General Counsel contends that Rosenberg's action in showing this letter to the affected employees constituted illegal interrogation by means of a poll, chargeable to the Respondent as an unfair labor practice. Raphael Christopher testified that on several occasions during February 1952, Rosenberg asked him if he had joined the Union , which Christopher denied ; that on other occasions Rosenberg remarked to him, "I understand you joined the Union "; that during a conversation in Rosenberg's office Christopher was again asked if he had joined the Union. Rosenberg testified that he asked Christopher "once or twice" whether or not Christopher had joined the Union. In his letter to the Union, Rosenberg refers to "a poll taken among our new and used car salesmen today." Rosenberg testified that the phrase referred to his showing the Union's letter to the salesmen, and admitted that he showed the letter only to the new -car salesmen, ignoring the men who sold used cars. Obviously the letter was shown to the employees for the purpose of ascertaining the Union's strength among them, without disclosing their Individual memberships . In this sense the Respondent's act, through its president, was in reality a poll and as such con- stituted interrogation. The question here is whether such interrogation constituted illegal interference, restraint, and coercion. The Board has consistently held that an employer 's interrogation of employees regarding their union membership, sympathies , or activity is a per se violation of Section 8 (a) (1) of the Act. 10 However , the courts have not been wholly in accord with the Board's view regarding such interrogation as being per se violative of the Act. In a growing line of deci- sions certain of the United States circuit courts have adopted the view that an attempt by an employer to ascertain the wishes of his employees with respect to unionization, absent any employer coercion, threat of reprisal, or promise of benefit, is not a per se violation of Section 8 (a) (1) of the Act.,ki As early as February 21 , 1949, the court in the Kingston case,u held that an employer's taking a secret poll of employees as to their union desires (where there was present no The letter was signed by Fenner. 9The letter which was received as an exhibit is erroneously dated 1951, instead of 1952. 10 For the rationale in support of this principle see Standard-Coosa- Thatcher Company, 85 NLRB 1358. "See N. L. R. B. v. Kingston, 172 F. 2d 771 (C, A. 6); N. L. R B. v. Ozark Dam Con- structors , 190 F 2d 222 (C. A. 8); N. L. R. B. v. Tennessee Coach Co., 191 F 2d 546 (C. A. 6): N. L. R. B. v. Montgomery Ward , 192 F. 2d 160 (C. A. 2); N. L. R. B. v. Atlas Life Insurance Co., 195 F. 2d 136 (C. A. 10); N. L. R. B, v. Arthur Winer, Inc., 194 F. 2d 370 (C. A, 7), certiorari denied October 13, 1952. nSee footnote 11, supra 291555 0 - 54 - 45 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interference in the organization of the employees and no threat of economic reprisal and if the poll could not of itself be construed as an implied threat of loss of employment in the event the employees did not abandon the Union) was not an act of interference, restraint, and coercion, by illegal interrogation, is The same court in the Tennessee Coach case 14 held that a respondent's mere inquiries as to union membership etc., were not 8 (a) (1) violations. Likewise in the Ozark Dam Constructors case, the Eighth Circuit, and in the Montgomery Ward case, the Second Circuit, is adhered to the same opinion. In a very recent case decided February 2, 1953, the United States Court of Appeals for the First Circuit16 held that: Evidence that supervisors, employed by company operating a department store, Interro- gated employees concerning their union membership, attendance at union meetings, and benefits to be gained from a union is not substantial evidence sufficient to support the finding of the Board that company violated Section 8 (a) (1) of the Act, in absence of a finding of an antiunion, attitude or background on the part of company, and the existence of a finding that the company vice president was free from any taint of unfair labor practice. In N. L. R. B. v. Winer 17 the Seventh Circuit held that a Respondent who had called employees to his office and inquired of them regarding a union drive in the plant had not engaged in an unfair labor practice within the meaning of Section 8 (a) (1) absent an actual threat of economic loss or a promise of benefit, a background of unfair labor practice, or hostility toward the employees lawful attempts at self-organization. On October 13, 1952, the Supreme Court of the United States denied certiorari in the Winer case, therefore the law is expressed in the views of the court as announced therein. In the opinion of the undersigned as the Winer case now stands, it does not mean that if there is present together with interrogation other conduct violative of the Act upon which findings of unfair labor practices must be made, such interrogation, if falling into a dis- cernible pattern of illegal conduct, is not also a violation of Section 8 (a) (1) of the Act. In the opinion of the undersigned the Board has indicated that Its views regarding interro- gation of employees as being per se violative of the Act must now be modified. In a recent case, decided December 10, 1952' (after the Supreme Court's action in the Winer case), by the use of the following language in making a finding in a matter wherein a third party interrogated employees' regarding their union membership (the interrogation taking place in the Respondent's office) the Board said: ... The woman 's questioning of employees concerning their union membership, viewed in the background of the Respondent 's surveillance of union meetings and its other violations of the Act, was an independent interference with the employees ' right to self-organization, and the Respondent thereby violated Section 8 (a) (1) of the Act. (Cf N. L. R. B. v Winer ) [Emphasis supplied] Conclusion as to Interrogation The undersigned has found that the Respondent did not unlawfully discharge any of its employees as alleged in the complaint. It is clear that the so-called "poll" as well as the Respondent's interrogation of Christo- pher were not accompanied by "threats of reprisal or promises of benefit." The General Counsel did not so contend. There is nothing in the record which in any manner establishes or even indicates a general plan of antiunion hostility on the part of the Respondent wherein the interrogation above found fits into a pattern of unfair labor practices. In the opinion of the undersigned the above interrogation standing unsupported by any other unfair labor practices of the Respondent and being wholly free of the prohibited "threats and promises" is not per se violative of the Act. It is so found. The undersigned will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent engaged in conduct violative of the Act by interrogating its employees concerning their membership in, interest in, and activities on behalf of, the Union. 13 See also: N. L. R. B v. Algona Plywood & Veneer Co , 121 F. 2d 602 (C. A. 7); N. L. R. B. v. Penokee Veneer Co , 168 F. 2d 868 (C. A. 7). i4See footnote 11, supra. is See footnote 11, supra 16 N. L R. B. v. England Bros . Inc., 201 F. 2d 395 (C. A. 1) 1lSee footnote 11 , supra. "S. D. Cohoon and FT. Cohoon , Partners, d/b/a D. Cohoon & Son, 101 NLRB 966. MILWAUKEE NASH COMPANY 697 Concluding Findings Having found that the Respondent has not engaged in any of the unfair labor practices alleged in the complaint, either by interrogating its employees or discharging them in violation of the Act, the undersigned will therefore recommend that the complaint be dis- missed.19 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Milwaukee Nash Company, Milwaukee, Wisconsin, is, and at all times material herein has been, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Automobile Salesmen, Local 174, affiliated with United Optical & Instrument Workers, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have not been sustained. [Recommendations omitted from publication.] 19Victor M. Harding, attorney for the Respondent, testified that after a conference with a field examiner, attached to the Thirteenth Region, regarding 13-CA- 1108 he received the following letter signed by the field examiner: June 23, 1952 Re: Milwaukee Nash Case No. 13-CA-1108 Dear Mr. Harding: Pursuant to our discussion on June 13, I am enclosing for your consideration a Settlement Agreement in the above- entitled case. As you will note the settlement provides for the posting of the attached Notice to All Employees May I hear from you within a few days as to whether you agree to settle the above case along the lines of this Settle- ment Agreement. Thank you for your cooperation during the investigation of this case. Rosenberg testified that the notice referred to was posted on or about June 30, and was still posted at the time of the hearing. The notice is an ordinary 8 (a) (1) notice. Harding testified that the field examiner "told me that if the Company would post , the notice there would be no further charge with respect to the complaint that the Milwaukee Nash polled its employees ... or interrogated employees." Harding testified "I had agreed to it and he had agreed to it. " Harding further testified that thereafter "I received a statement that the Settlement Agree- ment had not been approved by somebody " On July 7, 1952. Harding received the following letter from the field examiner: Thank you for your letter of July 1st with the enclosed signed Settlement Agreement. Please hold up the posting of the Notice until such time as the Union signs the Settlement and the Regional Director approves of same. Union approval of the Settlement Agreement, I will immediately notify you and send you copies to be posted. Apparently the settlement agreement was not approved by the Regional Director and tech- nically of course there had never been a settlement of 13-CA-1108 at any time, however, as it has long been an established Board policy to adhere to settlement agreements entered into by its agents for the reason that effective administration requires respect and confidence which would be greatly impaired by repudiation of an agent's act. Only in cases where similar unfair labor practices occur after the signing of an agreement will the Board repudiate an agreement or go behind it for litigation. Numerous Board cases dating from 1939 to 1953 adhere to the above doctrine Considering the charge in 13-CA-1108 and the charge in 13-CA-1085, the undersigned is at a loss to understand why the Regional Office saw fit to act contrary to the spirit of the Board's policy. However administration not being within the province of the undersigned he makes no findings on Harding's testimony but merely reports it in accordance with his duty to advise the Board fully of all the litigated matters in the proceeding.