Taylor-O'Brien Corp.

Taylor-O'Brien Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 375, AFL, and International Association of Machin- ists, Auto Mechanics Local 1053, AFL. Case No. 3-CA-681. April 1, 1955 DECISION AND ORDER On March 2, 1954, Trial Examiner Robert E. Mullin issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices al- leged in the complaint and recommended dismissal of the complaint with respect to such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the ex- ceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications, additions, and exceptions. As set forth in detail in the Intermediate Report, during the last week in March 1953, the Teamsters and the Machinists, hereinafter re- ferred to jointly as the Union, began an organizational campaign among the Respondent's employees. On March 27, 1953, the Union requested recognition as bargaining representative of the Respondent's employees in a unit which we, like the Trial Examiner, find to consti- tute an appropriate unit within the meaning of Section 9 (b) of the Act. On that date, the Union held signed authorization cards from a majority of the 28 employees in the unit. On April 3, the Respondent refused the Union's bargaining request until the Union demonstrated its majority status through a Board election. On April 13, the Re- spondent and the Union agreed to a consent election to be held on April 24. No election was held, however, because on April 22 the Union filed the charges which began this proceeding. In the same letter in which it made its bargaining request, the Union informed the Respondent that Supervisor Nicolas "has been telling the employees that he has been notified by the front office that any employee 112 NLRB No. 2. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that joins the Union will be immediately discharged." In its April 3 reply, the Respondent denied the accusation with respect to Nicolas, and said, "All our employees serving in a supervisory capacity, have been advised by management, that no one will be discharged because of their desire for Union representation." No such statement, however, was ever made directly to the employees themselves. Sometime during the first week in April, Supervisor Lloyd, in viola- tion of Section 8 (a) (1) of the Act, coercively threatened Hilliker, the principal advocate of the Union, by relating to him General Mana- ger Fenton's statement that although Hilliker could not be discharged for union activity, the Respondent could "make it tough" for him (Hilliker) and maybe cause him to quit. The circumstances leading to the threat were described in Lloyd's credited testimony. According to Lloyd, on March 28, Lloyd told Fenton that "inasmuch as Hilliker was the man who had brought the union activities into the picture, the sooner we got rid of him, why the better off." To which Fenton replied in substance, "Well, if we didn't give him [Hilliker] too much work he would probably just leave by himself." Also, in the first part of April, Supervisor Nicolas engaged in inter- rogation which, in the circumstances of this case, the Board, unlike the Trial Examiner, finds tended to interfere with, restrain, and coerce employees in violation of Section 8 (a) (1) of the Act. Thus, a few days after employee Jankowiak signed a union card, Nicolas ap- proached him in the shop, stated that the place was too small for a union, and inquired whether Jankowiak had signed a card. Similarly, about a week after employee Brown had signed a card, Nicolas asked Brown what he thought about the Union and how he thought he could benefit by the Union. In the latter part of April, Supervisor Nicolas prepared an anti- union petition, signed it himself, permitted the petition to remain available on company time and property for employees to sign, and suggested to at least one employee that the employee sign the petition. The petition, bearing a date of April 27, 1953, read, "WTe the under- signed employees of Taylor O'Brien Corp. request no further union representation." It was signed, in addition to Nicolas, by 23 employ- ees, and was forwarded to the Board's Regional Office. As was found by the Trial Examiner the Respondent again violated Section 8 (a) (1) of the Act as a result of Nicolas' acts in connection with the petition. The issue in this case is whether the Respondent's refusal to recog- nize the Union was predicated upon a good-faith doubt as to the Union's majority status. Relying solely on the fact that the Respondent did not await the direction of an election by the Board, but instead con- sented to the holding of such an election, and thereby appeared to have expedited the disposition of the matter, the Trial Examiner TAYLOR-O'BRIEN CORPORATION 3 concluded that the Respondent had not manifested a lack of good faith. Considering the other factors present in the case, we do not agree with the Trial Examiner. Although, as the Trial Examiner found, Lloyd's threat "to make it tough" for Hilliker was not in fact carried out, the circumstances surrounding the threat strongly suggest, we believe, that the Respond- ent's refusal to recognize the Union was not made in good faith. In the first place, the threat was made, almost precisely at the time that the Respondent was refusing the Union's bargaining request. And secondly, the events leading to the utterance of the threat, as shown by the Lloyd-Fenton conversation described above, indicate that the Respondent, confronted with the knowledge that its employees were organizing, apparently sanctioned a subtle policy of unlawful coercion to rid itself of the principal union advocate. Moreover, the Respond- ent unlawfully questioned its employees concerning their union views and activity. Filially, by authorizing and sponsoring the antiunion petition, the Respondent took what appears to us to be decisive action calculated not only to remove all employee support from the Union, but also to prevent the holding of the election to which it had previ- ously consented. Accordingly, although we agree with the Trial Examiner that the respondent's action in consenting to an election is an indicia of good faith on its part, the other acts the Respondent committed in viola- tion of the Act more than rebut, in our opinion, such manifestation of good faith. In the light of all the relevant facts, we therefore con- clude that the Respondent did not act in good faith when it questioned the Union's majority status and refused to recognize the Union as the bargaining representative of its employees.' It follows, and we find, that because the Union represented a majority of the Respond- ent's employees at the time in question, the Respondent, in violation of Section 8 (a) (5) of the Act, unlawfully refused to bargain with the Union. THE REMEDY As the Trial Examiner recommended, we shall order the Respond- ent to cease and desist from committing the acts which we have found violated Section 8 (a) (1) of the Act. As we have found that the Union represented a majority of the Respondent's employees in an appropriate unit and that the Respondent refused to bargain with it, we shall also order that the Respondent, upon request, bargain col- lectively with the Union as the exclusive representative of the em- ployees in the appropriate unit. 'A. L. Gilbert Company, 110 NLRB 2067 ; Joy Silk Mills, Inc v. N. L. R. B , 185 F. 2d 732, 741 (C. A, D. C ), cert denied 341 U. S. 914. 36902856-vol 112-2 4 DECISIONS OF THE 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, Taylor-O'Brien Corpora- tion, of Buffalo, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Participating in the circularization of its employees to induce their withdrawal from the Union; or from threatening them with discharge for engaging in organizational activities. (b) Interrogating its employees concerning their membership in, or activities on behalf of, the Union or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act. (c) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 375, AFL, and International Association of Machin- ists, Auto Mechanics Local 1053, AFL, as the exclusive joint repre- sentative of all its employees in the appropriate unit set forth in the Intermediate Report with respect to rates of pay, wages, hours of employment, or other conditions of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 375, AFL, or International Association of Machinists, Auto Mechanics Local 1053, AFL, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 375, AFL, and International Association of Machinists, Auto Mechanics Local 1053, AFL, as the exclusive joint representative of all employees in the appropriate unit, and embody any understand- ing reached in a signed agreement. TAYLOR-O'BRIEN CORPORATION 5 (b) Post at its shop in Buffalo, New York, copies of the notice attached hereto and marked "Appendix A.112 Copies of said notice to be furnished by the Regional Director for the Third Region shall, after being signed by Respondent's representative, be posted by Re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act, and insofar as it also alleges that the Respondent violated Section 8 (a) (1) of the Act by conduct other than that herein found to be violative of the Act. CHAIRMAN FARMER, dissenting in part : I dissent from the majority decision in this case to the extent that it makes findings of unfair labor practices contrary to the recom- mendations of the Trial Examiner. It apears to me that the Trial Examiner has given careful and mature consideration to the record and the issues in the case, and I would adopt his Intermediate Report in its entirety. 2In the event that this Order is enforced by,decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively upon request with International Association of Machinists, Auto Mechanics Local 1053, AFL, and with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 375, AFL, as the exclu- sive joint representative of all employees in the bargaining unit described herein, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and, if an understanding is reached, we will embody such understanding in a signed agree- ment. The bargaining unit is : All employees of our service, parts, and used car depart- ments, excluding office clericals, plant clericals, salesmen, 6 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD guards, professional employees, and supervisors as defined in the Act. WE WILL NOT circulate antiunion petitions among our em- ployees, or threaten them with discharge for engaging in organi- zational activities. WE WILL NOT interrogate our employees concerning their meln- bership in, or activities on behalf of, the Union or any other labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form, join, or assist International Association of Ma-- chlnists, Auto Mechanics Local 1053, AFL, or International' Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 375, AFL, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as. authorized in Section 8 (a) (3) of the Act. TAYLOR-O'BRIEN CORPORATION, Employer. bated---------------- By-------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OP THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Buffalo, New York, from November 16 to 17, 1953, pursuant to due notice to all parties. The complaint, issued on July 14, 1953, by the General Counsel of the National Labor Relations Board 1 and based on charges duly filed and served, alleged that the Re- spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5) of the Act by refusing to bargain with the Union, discriminatorily de- creasing the rate of pay of a named employee, interrogating its employees as to their concerted activities , and threatening them with discharge or other economic reprisals if they joined or assisted the Union. In its answer, duly filed, the Respondent con- ceded certain facts with respect to its business operations, but denied the commis- sion of the alleged unfair labor practices. The General Counsel and the staff attorney appearing for him at the hearing are re- ferred to herein as the General Counsel and the National Labor Relations Board as the- Board The above-named Company is referred to as the Respondent and the Charging. Parties, likewise named above, are referred to collectively as the Union. TAYLOR-O'BRIEN CORPORATION 7 All parties were represented at the hearing by counsel and were afforded full op- portunity to be heard , to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally , and to file briefs and proposed findings and conclusions. A motion to dismiss , made by the Respondent at the close of the General Counsel's .case, was denied . A similar motion made by the same party at the close of the hear- ing was taken under advisement . It is disposed of as will appear hereinafter in this report. The General Counsel presented oral argument at the conclusion of the hearing and on January 18 submitted a brief. On January 25 a brief was received from the Respondent. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation , having its office and place of business at Buffalo, New York, is engaged in the sale and distribution of new cars , trucks, auto- motive parts , accessories , and related products, pursuant to the terms of a franchise from the Ford Motor Company . In the course and conduct of its business in 1952, a representative year, the Respondent purchased and had delivered to its Buffalo shop new cars , trucks, and automotive supplies valued in excess of $2,500,000, of which approximately 100 percent was transported to the said shop in interstate commerce from States of the United States other than New York. On the foregoing facts, the Respondent concedes , and I find, that the Company is engaged in com- merce within the meaning of the Act . Howell Chevrolet Co v. N. L. R. B., 346 U. S. 482. H. THE LABOR ORGANIZATIONS INVOLVED The Teamsters and the Machinists are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events During the last week in March 1953 the Teamsters and the Machinists initiated a joint organizational campaign at the Respondent 's shop. Within a short period, William C. Hilliker, an employee in the service department, secured signed author- ization cards from 15 of his coworkers . On March 27 , the Union wrote the Re- spondent to request recognition and an opportunity to confer as to the terms of a collective-bargaining agreement. In this letter it also stated that Hilliker had been designated as the union steward and , in addition , complained that Frank Nicolas, whom it referred to as a foreman , had been telling the employees that those who joined the Union would be discharged . In a response to this letter , Farrell O'Brien. president of the Respondent, declined to recognize the Union until it won a Board- conducted election, denied that Nicolas had threatened any employees with dis- charge , and declared that all the Company 's supervisors had been advised that no employee would be dismissed for his organizational sympathies Thereafter, on April 13, the Company and the Union signed an agreement for a consent election to be held on April 24 . On April 22 , however, the Union filed charges with the Board alleging that the Respondent had refused to bargain and that it had inter- fered with, restrained , and coerced the employees in the exercise of their rights to self-organization . Since that date the Regional Director has deferred an election in order to await disposition of the unfair labor practice charges. B. The allegations with respect to Section 8 (a) (5) of the Act The parties stipulated , and I find, that all employees of the Respondent in its service, parts , and used car departments , exclusive of office clericals, plant clericals, salesmen, guards , professional employees , and supervisors, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (b) ,of the Act. The parties further stipulated that on March 27 the Union requested recognition as the exclusive bargaining agent for the employees in the above unit and that on April 3, the Respondent declined this request. On the ground that at the time of this declination a majority of the employees had designated the Union as their representative , the General Counsel alleged that the Respondent had refused to recognize and bargain with the Union and had , thereby, violated Section 8 (a) (5) of the Act. Since this is the principal issue in the case it will be considered first. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 3 there were 28' employees in the unit described above. On March 27, when the Union requested recognition, some 15 employees' had signed authoriza- tion cards. On March 30, two more' joined. The General Counsel contends that, a majority of the employees having designated the Union as their bargaining agent at the time it requested recognition, the Respondent was obligated to accord such recognition forthwith and failing in that, be held to have violated Section 8 (a) (5) of the Act. The cases on which the General Counsel relies,5 however, are authority for this proposition only where it is established that the employer had no good-faith doubt that the Union represented a majority of his employees. Here, it is very significant that although the Company declined to recognize the Union on April 3, it very promptly signed a consent agreement which provided for an election within 3 weeks thereafter. If the Respondent had been as lacking in good faith as the General Counsel contends it would have been more in character for the Company to have insisted on a Board-ordered election so that a determination of employee preferences would have been delayed for months The fact that the Respondent did not adopt this course but instead freely cooperated with the Union to expedite an election, causes me to conclude and find that the Respondent did not violate Section 8 (a) (5), as alleged, by refusing to recognize the Union when the latter first claimed to represent a majority of the employees. The Walmac Company (Radio Station KMAC & FM Station KISS), 106 NLRB 1355.6 C. The allegations with respect to Section 8 (a) (3) of the Act Hilliker was hired on February 23 as a collision man. His subsequent prominence in the effort to unionize the employees was brought to the Respondent's attention very shortly after that campaign started when the Union notified the Company on March 27 that Hilliker had been designated as steward for the shop. The General Counsel alleged, and the Respondent denied, that after Hilliker be- came known as the principal advocate of a union the Company discriminatorily re- duced his pay by denying him the opportunity to work overtime and by decreasing the number of jobs assigned to him. In support of the first allegation Hilliker testified that one evening during the first week in April, while working overtime on a particu- lar repair job, he was accosted by Fenton and told to pack his tools, that the Com- pany's policy was to work only from 8:30 to 5. Hilliker stated that subsequent to this date he received permission to work overtime only about 2 hours in April, but that in May and June he had about 10 hours of overtime each month. According to the employee, he had averaged 6 hours of overtime per week in March and, prior to this encounter with Fenton, had known of no rule against working after 5 p. m. On the other hand, Fenton testified that when he assumed the duties of general manager' he established a policy whereby no employee was to work overtime without his specific authorization and that on the occasion in question he was merely enforcing a prac- tice which he had endeavored to apply consistently to everyone. On cross-examina- tion, Hilliker conceded that his regular hours were from 8:30 a. m. to 5 p. in. and that from the first it had been necessary that he obtain permission from the service manager to work overtime. Significantly, Hilliker gave no testimony as to whether Lloyd, his immediate supervisor, had given such permission on the evening that Fen- 2 This total includes E Stockman who went on military leave April 4 (an employee in the Armed Forces being eligible to vote if he appears in person at the polls, Press, Inc. 91 NLRB 1360) ; and T. Denton who was on sick leave April 2 but who returned to work on April 6 (since an employee on sick leave retains his eligibility to vote, Silver Knit Hosiery Mills, 99 NLRB 422). The above-mentioned figure does not, however, include Frank Nicolas, found hereinbelow to be a supervisor, nor II Pletras who resigned on April 4. (As to the latter see, New Era Shirt Co , 79 NLRB 213 ) 3P. O'Neill, William C. Hilliker, Earl Rogers, Sr, Earl Rogers, Jr., Arthur Ehlers, E Dixon, Thomas C Brown, Roosevelt Bittles, Jack Long, Russ Marotta, Michael Stockman, Warner Spencer, Edward J Schuster, Ludwig Brickelman, and William Barthold. ' John Jankowiak and Charles Rober. 5 Reeder Motor Co , 96 NLRB 831, and related decisions. 6In support of his allegation that the Respondent had unlawfully refused to bargain with the Union the General Counsel also argued that the whole record herein reflects a dogged determination by the Company to undermine and defeat the Union at every turn. This contention, however, relied upon several allegations in the complaint as to subsequent violations of Section 8 (a) (1) and (3) of the Act which I find, later in this report, infra, to be without support in the record. 7 Fenton became general manager on February 9, 1953. TAYLOR-O'BRIEN CORPORATION 9 ton ordered him to leave the shop. There was no persuasive testimony in corrob- oration of Hilliker's statement that he had not heard of any policy against overtime until Fenton applied it to him.' Consequently, in view of this fact and the credible testimony Fenton gave in this connection I am unconvinced that there was any dis- criminatory application of the company rule on overtime with respect to Hilliker. The complaint alleged that on or about March 28 the Respondent decreased Hil- liker's rate of pay and provided him with less employment than he normally would have received. In support of this allegation the General Counsel relies, in part, on the testimony of Lloyd. According to the latter, in a conversation with Fenton about March 28, he told the general manager that "inasmuch as Hilliker was the man who had brought the union activities into the picture, the sooner we got rid of him, why be better off." Lloyd further testified that Fenton then said, in substance, "Well, if we didn't give him too much work he would probably gradually just leave by him- self."' According to Hilliker, early in April, Lloyd told him that Fenton had de- clared that although the Company could not fire him it could "make it tough for me and maybe I would quit." He further testified that at about this same time, on one occasion, Lloyd asked him to name the employees who had signed cards and, on an- other, Lloyd pointed out to him a large number of applications for employment which he described to Hilliker as the applications of those who would replace the union members in the shop. Lloyd did not deny that he had told Hilliker of Fenton's sug- gestion but he did deny that he had ever asked Hilliker to supply the names of all union members or that he had ever told him that the Company had the applications of those who would replace all employees who had signed cards. At the time of the hearing Lloyd was no longer in the employ of the Respondent. He was called as a witness by both the General Counsel and the Respondent, and throughout the course of this interrogation impressed me as a frank and honest man. Hilliker's testimony in connection with this phase of the case, on the other hand, was not as persuasive. This conclusion applied with particular reference to such testimony as his state- ment that when Lloyd asked who had signed cards he proceeded to point out and name the different employees in the shop who had joined the Union. To me this seems most unlikely. Hilliker did not appear to be an easily intimidated type of per- son and I do not believe that he would blandly submit to such an alleged interrogation and disclose the names of all his fellow workers whom he had so recently induced to join in the union campaign. That he should testify to having done so is a reflection on his general credibility. According to Hilliker, from early in April until about the second week in May, his earnings decreased because he was not assigned as much work as normally and, in addition, had difficulty getting the parts necessary in his repair work. Lloyd testified that, despite the conversation with Fenton related above, he never put the general manager's suggestion into effect, that he never treated Hilliker differently from any other employee and that there was never any change in the customary manner for supplying him with parts. On cross-examination, Hilliker conceded that Lloyd "did the best he could . " in obtaining repair items for him The General Counsel also charged that the Respondent had discriminated against Hilliker by sending col- lision jobs out to other shops rather than letting the employee work on them. Fen- ton testified that prior to the time he became general manager the Company had sent out all its collision work to other garages, but that after Hilliker was hired a special section was established for this type of work. Thereafter the Respondent endeavored to cut down and eventually eliminate the subletting of collision jobs because it was more profitable for the Company to do such work in its own shop." Although Hilliker testified that his earnings were less in April than they had been at any other time he was unable to recall the extent of the difference. The payroll 9 Although Thomas C Brown testified that he worked a good deal of overtime throughout the spring of 1953, Brown was in a much different position from Hilliliker, since he was the night mechanic at the shop and worked by himself. 6 Fenton denied that he made this comment to Lloyd. The testimony of the latter about this conversation, however, impressed me'as the more accurate and reliable. 10 Iilliker testified that Nicolas told him, in a conversation at which John Jankowiak, another employee, was present, that during the month of April the 'Company had sent $560 of repair work to one outside shop alone. However, when the General Counsel sought to corroborate this testimony through Jankowiak, the latter testified that at the meeting in question it was Hilliker who asserted that the Company had sent out $500 worth of work during the past month and that Nicolas had said nothing in response to this state- ment. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records were introduced by the Company and disclosed that for the month of April, Hilliker earned about $100 less than he had the preceding month but that in May and June he earned more. His weekly earnings for the period prior to April 2, the 6 weeks extending from early April to May 13,11 and from the latter date until July 10,12 were as follows: Feb 26 to Apr. 1 Apr 2 to May 13 May 14 to July 10 $78 03 $59 25 $75 38 156 39 78 50 125 35 94 23 105 50 108 40 88 00 57 00 106 00 88 90 117 95 101 50 ------------ 104 11 109 25 ------------ 103 75 154 50 Total --------------------------------- 505 55 522 31 884 13 Weekly average----------------------------- 101 11 87 05 110 51 ®I 1 I I Although the foregoing table shows that Hilliker's average weekly earnings were somewhat less throughout the 6 weeks in question, in only 2 of those weeks were his earnings below what they had been during February and March and dunng 3 others his pay ranged from $104 to $117, considerably above his weekly average before the advent of the Union. It was undisputed that Hilliker departed the Respondent's employ on July 14 of his own volition. He himself testified that he made his highest earnings in the last weeks he was with the Company. In view of these facts, and Lloyd's testimony, which I have credited, 1 conclude and find that the General Counsel failed to prove by a preponderance of the evidence that the Respondent discriminatorily decreased Hilliker's rate of pay and provided him with less employment because of the latter's organizational activities. D. The allegations as to interference, restraint, and coercion The General Counsel alleged that the Respondent threatened its employees with discharge if they joined the Union, granted wage increases to induce them to refrain from joining, interrogated them concerning their membership, and instigated or acquiesced in the circulation of an antiunion petition on company time and property. The allegation as to threats was supported in connection with at least one inci- dent. Earlier in this report I have discussed Hilliker's uncontradicted testimony that on an occasion during the first week in April, Lloyd told him that the general manager had declared that although Hilliker could not be discharged for his union activity the Company could "make it tough for [him] and maybe [he] would quit." This remark, implying that continued organizational efforts would result in punitive treatment, was plainly coercive and a violation of Section 8 (a) (1) of the Act, even though, as found above, in Hilliker's case the threat was never implemented. The allegation that the Respondent promised wage increases and economic bene- fits to defeat the Union is not as well founded. There was testimony that, early in April, Fenton, the general manager, had conversations with some of the employ- ees in which the Union was mentioned and that shortly thereafter some of these employees received raises. Fenton testified that during the period in question sev- eral employees came into his office of their own volition to discuss various aspects of their working conditions, that he asked no questions about their union sym- pathies, and that when one of them volunteered that he regretted having signed a union card, he (Fenton) told him that he could not discuss the matter with the men other than to point out that in the forthcoming election they could vote freely. Fenton further testified that he gave individual raises to three of the employees at this time, Earl Rogers, Sr., Earl Rogers, Jr , and Edward Schuster, but that he did so only because they had been offered better jobs with other garages and since they "As noted eaiher, Hilliker testified that the period of discrimination started early in April and lasted until about the second week in May. 12 This was his last full-time workweek at the Respondent 's shop. TAYLOR-O 'BRIEN CORPORATION 11 were skilled mechanics he felt compelled to grant their request for a raise in order to keep them . Three of the employees who were a party to these conversations, Arthui Ehlers, Glen' Wirth, and Rogers, Sr , testified at the hearing and corrobo- rated Fenton . Rogers, Sr., credibly testified that both he and his son had been offered better paying jobs with another automobile dealer (whom he named), that he told Fenton he would have to know within a couple of days whether the Com- pany could meet the offer, that Fenton expressed doubt as to his ability to do any- thing for him at the time because a union was then seeking recognition but asked for a short while to consider the matter , and that later in the week Fenton told both Rogers and his son that he would give them an increase of 25 cents an hour to avoid losing them, even though this step might involve him in trouble with the Union. The General Counsel offered nothing that would destroy the plausibility of the testimony of either Fenton and Rogers, Sr., in connection with the aforementioned wage raises. Yet the subject matter was not one as to which all knowledge was within the control of the Respondent . At the hearing , Rogers, Sr., gave the name and address of the automobile dealer from whom he and his son allegedly had received an offer of better employment . The General Counsel, however, did not produce this dealer to refute the assertion that the two Rogers actually had other employment waiting for them. Moreover, the testimony of both Fenton and Rogers on this issue impressed the Trial Examiner as being worthy of credence . As found above, at this time the Respondent had a good-faith doubt of the Union 's majority. It was not, therefore under an obligation to bargain with the Union about wage rates, or other matters, until the latter established a majority status. It is likewise clear that Fenton had sound business reasons for granting these increases in order to retain skilled mechanics who would be difficult to replace. There being no inde- pendent evidence that the service manager granted these raises to discourage union activity, it is my conclusion that this conduct was not a violation of any section of the Act . N. L. R. B. v. W T. Grant Company, 208 F 2d 710 (C. A. 4). Several of the mechanics were paid on a job basis whereby they received 50 per- cent of the labor charges to the customer , rather than an hourly wage On April 13, the Company raised the customer labor rate from $3.50 to $4 per hour, thus effecting an increase in the pay of those mechanics on a job rate . The General Counsel argued that this constituted unilateral action designed to discourage the union movement . The Respondent contended that the change had no relation to the organizational campaign and that it was taken only to bring the Company's rate into line with that of other Ford dealers in the Buffalo area. Fenton testified that. early in April , Respondent received a letter from the Ford Motor Company in which it requested that each dealer report his current or anticipated customer labor rates in view of certain contemplated changes in connection with warranty and policy adjustments authorized by the factory, that he then checked with other Ford dealers in the city and learned that most of them had already raised their rate to $4, as a result of which the owners of the business decided to raise the Respond- ent's rate to that figure also. At the time , five mechanics were working on a job rate basis. Insofar as the record indicates , they were the only ones affected by this increase in a bargaining unit consisting of 28 employees The evidence offered by the Respondent to refute the alleged discriminatory character of this action left something to be desired in that it relied solely on Fenton 's testimony without corroboration , documentary or otherwise . On the other hand, apart from an extensive cross-examination of the general manager, during which his credibility was unshaken , the General Counsel offered no evidence to rebut Fenton's testimony on this issue The burden of proving the allegations in a complaint remains at all times on the General Counsel. Further , the Act requires that to be sustained such allegations must be proved by a preponderance of the evidence . On the issue here involved the testimony of Fenton remains uncontradicted . Moreover , in the opinion of the Trial Examiner it was credible Consequently , on this record it must be found that the job rate increase resulted from an effort on the Respondent 's part to keep its service rates at the same comparative level as those of its competitors in the area Whether this was a sound decision or otherwise is irrelevant and immaterial here. It is sig- nificant only , in that, so far as the facts disclosed in this record are concerned, the increase arose from an exercise of business judgment that was unrelated to the union organizational campaign. Here, as noted earlier , the Respondent, not having been under an obligation to bargain with the Union at the time , was not required to discuss such matters as the job rate increase with a bargaining agent. There being no other evidence of discriminatory intent on the Respondent 's part, it is my conclusion that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent increased the customer labor rate to discourage 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity on the part of the five mechanics here involved. N. L. R. B. v. W. T. Grant Company, supra.13 Several of the other alleged violations of Section 8 (a) (1) of the Act were attributed to Frank Nicolas. The status of the latter was in dispute, the General Counsel alleging that Nicolas was a foreman in charge of used car reconditioning, whereas the Respondent argued that he was no more than a rank-and-file employee. At the time of the hearing, Nicolas had approximately 11 years of service with the Company. From 1947 to 1952 he had been service manager and in May 1951 he went into the used car reconditioning section as shop foreman. According to Nicolas, in November 1952 he lost his supervisory status, was taken off a salary, and thereafter paid by the hour. Nicolas testified that since then he has been a rank-and-file mechanic, although charged with certain minor clerical record keeping duties in connection with which he maintains a desk in the shop. Other employees in the same section gave a different version. John Jankowiak, a polisher and general maintenance man whom Nicolas had originally hired as a part-time employee," stated that Nicolas assigned him work, gave him permission to be off, put him on overtime, and in February 1953 asked him to become a full- time employee at $1.50 an hour 36 Clair McMullen described Nicolas as the shop foreman "for us lower men" from whom McMullen received his work assignments, permission to take time off, and through whom he once sought a raise. Another employee, Earl Rogers, Sr., testified that Nicolas was not a supervisor, but this same witness also stated that as far as he could determine Nicolas performed the same duties from June 1952 (when admittedly Nicolas was a foreman) to the present." Nicolas' testimony about his alleged demotion was not convincing for several reasons. Although he testified that he was placed on an hourly basis in November 1952, he conceded that his hourly rate thereafter provided him the same income as he had previously received on a salary basis and that he remained free to take time off without loss of pay. No announcement was ever made of this purported change in his status, he continued to wear a white coat while on duty as did the other foremen," he never punched a time clock, and after his alleged demotion the number of employees in the department increased from 5 to 8. Several of these employees testified that for a Christmas bonus in 1952 each one had received $20 and a ham. When Nicolas was pressed to answer the question as to the amount of his bonus he at first declined to respond, then, after a long pause and with great reluctance, he stated that he had received $1,000. Most of the evidence offered by the Respondent to establish the status of this individual consisted of the testimony given by Nicolas himself.' In my opinion, his uncorroborated statement that he lost all supervisory authority in November 1952, was lacking in credence. Later in this report, Nicolas' credibility is discussed further and found wanting. For similar reasons, I have found it unpersuasive here. Respondent, in its brief, relies heavily on the fact that the record contains little evidence that Nicolas had authority to hire or fire and, further, that Nicolas had been included without objection along with the rest of the employees in the unit on an eligibility list prepared for the consent election. Neither of these facts is deter- minative. The eligibility list was prepared by the Company as an enumeration of employees on the payroll in the unit sought by the Union. Had an election been held the Union might at that time have challenged Nicolas' eligibility to vote with the rank-and-file Since no election has been held, the list has never been used. Consequently, I do not feel that the inclusion of his name on a preliminary listing of 13The General Counsel also characterized as unilateral and discriminatory a wage in- crease which the Respondent granted to one Clair McMullen during the summer of 1953. At that time, however, the Respondent was under no greater obligation to bargain with the Union than during the period discussed in the paragraphs above and, as a result, was free to grant such a wage raise. 14 When Nicolas was shop foreman 15 Nicolas could not recall whether Jankowiak ever asked for time off ; he testified that in any event he would have had to check with the used car manager before he could have granted it 19 McMullen likewise testified that he could discern no change in Nicolas' duties. 17 This by itself, however, was not determinative because white coats were also worn by the service salesmen who contacted the customers. Is Only Fenton, among the management representatives at the hearing, gave any addi- tional testimony on this issue. Fenton's testimony, however, was very brief and inconclu, sive for, after stating that Nicolas was an employee and not a foreman , be conceded that he actually had little knowledge of the man' s duties or his salary, wage, or bonus ar- rangements. TAYLOR-O'BRIEN CORPORATION 13 eligible voters has any relevance in determining his true status . It is likewise im- material whether Nicolas lacked the power to hire and fire if at the same time he did possess any of the other indicia of supervisory authority set forth in Section 2 (11) of the Act. It is now settled that the "possession of any one of the authorities listed in § 2 (11 ) places the employee invested with this authority in the supervisory class." [Emphasis supplied.] Ohio Power Co. v. N. L. R. B., 176 F. 2d 385, 387 (C. A. 6), cert. denied 338 U. S. 899. The Company conceded that Nicolas was a shop foreman until November 1952. It is my conclusion , on the facts set forth above, that Nicolas retained his status as a supervisory employee after that date and at all times material herein. From the credible testimony in the record it is apparent that he continued to make work assignments , reward with time off, and re- sponsibly to direct the employees in the used car reconditioning section and that the exercise of such authority required the use of his independent judgment. In view of these facts , it is my conclusion that during the period in question Nicolas had a supervisory status. The General Counsel alleged that Nicolas was instrumental in circulating a peti- tion which was mailed to the Regional Office of the Board late in April. This document was headed : "We the undersigned employees of Taylor -O'Brien Corp. re- quest no further union representation" and was signed by 24 of the employees. The envelope in which it was mailed had written on the flap "Return to Shop Employees of Taylor-O'Brien Corp. 2837 Bailey Ave., Bflo. 15, N. Y." Nicolas conceded that he had signed the letter along with many other employees but he flatly denied hav- ing written the caption at the top of the sheet or having had any part in its initiation. There was much testimony about the manner in which the petition was signed. Jankowiak credibly testified that , on coming to work one morning late in April, Nicolas told him that there was a petition in the basement and that he should speak to Earl Rogers, Sr., about it. The latter told Jankowiak that the employees were petitioning to get a vote on the union question as well as to get a raise and 40 hours a week. 19 Rogers testified that he had found the petition on his toolbox when com- ing to work that morning, that he had no knowledge as to who originated it, that he never saw the document after about noon on the day he signed it,20 and that he did not know who mailed it to the Regional Office. Rogers ' purported ignorance of the origin of the petition was quite implausible . But Nicolas' testimony in this connection was even more so. The latter, by his demeanor and bearing, did not impress the Trial Examiner as a frank or truthful witness at the time he denied having prepared the petition. This conclusion was subsequently affirmed by the testimony of Percy Darby, a witness produced by the General Counsel as a handwriting expert and whose qualifications as such were conceded by the Respondent . After an ex- amination of the three lines at the top of the petition and a specimen of Nicolas' writing, Mr. Darby stated that in his opinion , both had been written by the same hand. It is apparent , from the above , that Nicolas, in fact, had prepared the petition. Further, not only did he permit it to remain available on company time and prop- erty for all of the employees to sign, there is in the record the uncontradicted testi- mony of Jankowiak that it was Nicolas who suggested that he contact Rogers about signing the petition. Such conduct on the part of a management representative, in- evitably having the effect of undermining the Union, was coercive and a violation of Section 8 (a) (1) of the Act. N. L R. B. v. Louisville Container Corp, 209 F. 2d 654 (C. A. 6); Red Rock Company, 84 NLRB 521, 524, enfd. as to this point 187 F. 2d 76 (C. A 5), cert. denied 341 U S 950; H & H Manufacturing Company, Inc , 87 NLRB 1373, 1375 The General Counsel alleged that Nicolas had engaged in other unlawful conduct by various statements made to the employees during this period . Thus, Hilliker and Jankowiak testified that Nicolas told them that if the men voted for the Union, the hourly rate might be increased but since the employees would only be able to work 40 hours a week "we wouldn't gain much there." In a recent case. N L R B. v. Associated Dry Goods Corporation, 209 F. 2d 593 (C. A 2), the court held similar remarks by a store manager not violative and characterized such language as "a statement of the speaker's experience, opinion and prophecy as distinguished from a statement of fact." I believe this conclusion equally applicable to the remarks here attributed to Nicolas. In other testimony, Thomas C Brown testified that Nicolas asked him, "What do you think about the Union" and Jankowiak testified that on 19 Jankowlak could not recall whether there was any writing on the sheet he signed. Other witnesses however, such as Dixon , Wirth, and Ehlers credibly testified that the writ- ing in question was at the top of the page at the time they signed. 20 Rogers was the first signatory. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one occasion Nicolas asked if he had signed a card in the Union . It is not violative of the Act for a foreman to engage in a casual discussion of organizational activity with an employee . Normally, however, the Board would hold any interrogation as to an employee 's union affiliation to be violative per se. Standard-Coosa-Thatcher Company, 85 NLRB 1358. Here, however, the questioning appears to have occurred during a single conversation and implied no threat of reprisal , force, or promise of benefit. Consequently , it is my conclusion that in neither of these incidents did the Respondent , through Nicolas, violate the Act. N. L. R. B. v Associated Dry Goods Corporation, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent's agents participated in the preparation and circulation of an antiunion petition among its employees and threatened the dismissal of an employee for engaging in concerted activity, I shall recommend that the Respondent be ordered to cease and desist therefrom and from like or related con- duct. Further, because of this demonstration of the willingness of the Respondent's agents to resort to unlawful methods to counteract an attempt by the employees to achieve self-organization through a labor organization of their own choosing, the commission of other unfair labor practices may be anticipated. It will therefore be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is, and at all times relevant herein, was, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Teamsters and the Machinists are labor organizations within the meaning of Section 2 (5) of the Act. 3. All employees of the Respondent in its service, parts, and used car departments, exclusive of office clericals, plant clericals, salesmen, guards, professional employees, and supervisors, constitute an appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9 .(b) of the Act. 4. By the participation of Foreman Nicolas in the preparation of an antiunion petition and the acquiescence of Nicolas in the use by employees of company time and property for the circularization of this petition and by the threat of discharge conveyed in the remarks of Service Manager Lloyd to Hilliker, as found above, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. Further, these aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in any violations of the Act, as alleged in the complaint, other than those set forth in the preceding paragraph. [Recommendations omitted from publication.] American Engineering Company and Industrial Union of Ma- rine and Shipbuilding Workers of America , Local No. 35, CIO, Petitioner. Case No. 4-RC-526. April 1, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph A. Weston, 112 NLRB No. 1.