P-M Garages, Inc.

P-M PARKING SYSTEM 987 4. Meat Cutters Union, Local 594 (AFL-CIO), was on February 17, 1960, and at all times thereafter has been and now is the exclusive representative of the em- ployees in the above-described appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By terminating its drivers, driver-helpers, and the auto mechanic helper on July 1, 1960, Respondent has discriminated with respect to the hire and tenure of employees , thereby discouraging membership in a labor organization , and has engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 6. By contracting out its delivery operations and by the foregoing conduct, Re- spondent has refused to bargain with Meat Cutters Union, Local 594 (AFL-CIO), as the representative of its employees in the above -described appropriate unit and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid discrimination and refusal to bargain , Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaran- teed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 8. By its unfair labor practices as herein found, Respondent prolonged the strike of its employees and converted it as of July 4 , 1960, to an unfair labor practice strike. 9 By its refusal to reinstate unfair labor practice strikers on or before August 24, 1960, Respondent has discriminated with respect to their hire and tenure of employ- ment, has interfered with, restrained , and coerced employees in the exercise of the right to engage in concerted activities protected by Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 10. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] P-M Garages, Inc. ; Charmar Management Company, a corpora- tion ; Jack Burton Management Company, a corporation ; Speed- way Realty Company, a corporation ; Scruggs-Vandervoort- Barney Garage Company, Inc.; Park-N-Shop, Inc.; Jefferson Parking Company, Inc.; Charlotte Mandel and Marluel Pohrer, a joint venture doing business as Chestnut Speedway; Burton Mandel, individually and as trustee for Stuart Mandel, M. H. Mandel and Charlotte Mandel, as trustees for Alan Mandel, and Harry J. Pohrer as trustee for Jack Pohrer, Gary Pohrer, Patti Pohrer and Joy McNulty, a joint venture doing business as Ten Ten Olive Company ; all doing business as P-M Park- ing System and Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 14-CA-2741. November 15, 1962 DECISION AND ORDER On August 16, 1962, Trial Examiner Abraham H. Mailer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. 139 NLRB No. 84. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, the Charging Party and the General Counsel filed excep- tions to the Intermediate Report, together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions as set forth below. Ac- cordingly, the Board adopts the findings and conclusions of the Trial Examiner, only to the extent that they are consistent herewith. The Trial Examiner held that, although the Respondent's agents had interrogated employees with respect to union activities and made certain other statements attributed to them in the complaint, Respond- ent did not thereby violate Section 8 (a) (1). He based this holding on subsidiary determinations that Respondent's purpose was to as- certain the extent of employee interest in the Union before answering the Union's recognition demand and, with one possible exception, none of the interrogation activity could be viewed as tending to coerce, restrain, or interfere with the employees' exercise of their Sec- tion 7 rights, within the meaning of the Board's Blue Flash doctrine.' We disagree. In our view, neither the Trial Examiner's interpreta- tion of Respondent's purpose in interrogating the employees, nor his conclusion as to the effect of such interrogation, is justified by the record as a whole. Briefly, the testimony credited by the Trial Examiner established that the Respondent, through its owner, Mandel, and its manager, Albus, spoke to and interrogated certain employees about union ac- tivities after receiving the Union's bargaining request. While find- ing that the purpose of Respondent's interrogation was to determine how to answer the Union's bargaining request, the Trial Examiner failed to note that the Respondent's contacts with the employees were not all confined, in point of time, to the period before it replied to the Union denying the bargaining request. Further, as is conceded, Respondent's agents did not, in the statements and inquiries they made, undertake either to advise the employees that their objective was to determine how Respondent should answer the Union's bargain- ing request or to assure the employees that there would be no reprisals for union adherence. Instead, Respondent's inquiries were framed in terms evincing an interest not only in the union sympathies and sentiments of the individual questioned but also as to those employees who may have talked to this particular individual about the Union. i Blue Flash Empress, Inc., 109 NLRB 591. P-M PARKING SYSTEM 989 Moreover, in each instance, Respondent made abundantly clear to the employees its antipathy to the Union. In some instances, the anti- union expressions were couched in terms calculated to suggest a change in Respondent's attitude toward the employees because of union mem- bership or activity. Thus, in the course of interrogating Reed, Albus chose to remind him of a past criminal conviction.2 Similarly, when Albus saw Quarles exhibiting a union button, he told him, "I don't mind you wearing that button, but I want you here on time." 3 And, when Mandel reprimanded Harris for failing to admit his union membership to him on the prior occasions when Mandel had inter- rogated Harris about his union membership, and had advised him that "someone" had told him (Mandel) about Harris' having joined, Man- del told Harris that, while he did not care about the wearing of union buttons, he could not "trust" Harris any more.4 In sum, unlike Blue Flash, this case's record as a whole establishes that the Respondent's motivation in interrogating its employees was not to ascertain whether or not it should honor the Union's demand for recognition, but rather to make clear its hostility to the Union and to discourage activities on the Union's behalf. We conclude that Re- spondent's interrogation of employees was not lawful within the scope of the Blue Flash principle but interfered with, restrained, and coerced employees in violation of Sectior. 8(a) (1) of the Act' THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations described in the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. TIIE REMEDY As we have found that the Respondent has engaged in certain un- fair labor practices, we shall order that it shall cease and desist there- from, and take certain affirmative action designed to effectuate the policies of the Act. 2 Reed's continued employment with Respondent was a condition of his probation 9 Quarles had given the Respondent no cause for complaint with respect to tardiness since he had been admonished some weeks before on the subject. d Under all the circumstances , we are unable to accept the Trial Examiner' s description of Mandel's statement to Harris as being no more than the "normal reaction" of an em- plover to an employee who had "twice lied" on the subject of union membership 5 See Murray Envelope Corporation of Mississippi , 130 NLRB 1574, 1576; Orkin Ex- terminating Company of South Florida, 136 NLRB 399 ; Thomas J. Aycock, Jr, an in- dividual, d/b/a Vita Foods, 135 NLRB 1357 ; Frank Sullivan and Company, 133 NLRB 726_ 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, P-M Garages, Inc.; Charmar Management Company, a corporation; Jack Burton Management Company, a corporation; Speedway Realty Company, a corporation; Scruggs-Vandervoort-Barney Garage Company, Inc.; Park-N-Shop, Inc.; Jefferson Parking Company, Inc.; Charlotte Mandel and Marluel Pohrer, a joint venture doing business as Chest- nut Speedway; Burton Mandel, individually and as trustee for Stuart Mandel, M. H. Mandel and Charlotte Mandel, as trustees for Alan Mandel, and Harry J. Pohrer as trustee for Jack Pohrer, Gary Pohrer, Patti Pohrer and Joy McNulty, a joint venture doing busi- ness as Ten Ten Olive Company; all doing business as P-M Parking System, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Questioning employees concerning their or other employees' membership in or activities on behalf of Automotive, Petroleum and Allied Industries Employees Union, Local 618, Affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of their em- ployees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Post immediately in a prominent place at each lot or garage operated by the above-named Respondents, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed by the Respondent's representative, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its em- ployees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondents have taken to comply herewith. 0In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " P-M PARKING SYSTEM APPENDIX NOTICE TO ALL EMPLOYEES OF P-M PARKING SYSTEM 991 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, as amended, we hereby notify our employees that: WE WILL NOT question employees concerning their or other em- ployees' membership in or activities on behalf of Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization of our employees, in a manner constituting inter- ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. P-M PARKING SYSTEM, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 4459 Federal Building, 1520 Market Street, St. Louis 3, Mis- souri, Telephone Number Main 1-8100, Extension 2142, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge dated March 22, 1962, filed by Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union, the Regional Director for the Fourteenth Region of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on April 27, 1962, against P-M Garages, Inc.; Charmar Management Company, a corporation; Jack Burton Management Company, a corporation; Speedway Realty Company, a corporation; Scruggs-Vandervoort- Barney Garage Company, Inc.; Park-N-Shop, Inc.; Jefferson Parking Company, Inc.; Charlotte Mandel and Marluel Pohrer, a joint venture doing business as Chestnut Speedway; Burton Mandel, individually and as trustee for Stuart Mandel, M. H. Mandel and Charlotte Mandel as trustees for Alan Mandel, and Harry J. Pohrer as trustee for Jack Pohrer, Gary Pohrer, Patti Pohrer and Joy McNulty, a joint venture doing business as Ten Ten Olive Company; all doing business as P-M Parking Sys- tem,' herein called the Respondent, alleging violations of Section 8(a)(1) of the Na- 1 The names of the various business entities and of the persons alleged to have a proprietary interest in some of them as set forth in the complaint were corrected by motion which I granted at the close of the hearing. The listing above and in the title reflect such corrections. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In substance, the complaint alleged several instances of interrogation of Respondent's employees and a reprimand of one for previously denying union membership and activities. In its duly filed answer, Respondent denied the com- mission of any unfair labor practice. Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer at St. Louis, Missouri, on May 21 and 22, 1962. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by all parties. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a single enterprise consisting of several corporations and joint ventures, as follows: Name Type of entity Stock ownership of other proprietary interest P-M Garages,Inc --------------------- Charmar Management Company------ Jack Burton Management Company-- Speedway Realty Company-----__-- Scruggs-Vandervoort-Barney Garage Company, Inc Park-N-Shop, Inc--------------------- Jefferson Parking Company, Inc-. - --- Charlotte Mandel and Marluel Pohrer d/b/a Chestnut Speedway. Ten Ten Olive Company -----------__ Corporation----- -----do----------- ----- do----------- ----- do---------- -----do----------- -----do----------- ----- do ----------- Joint venture--- -----do----------- Edward F Pohrer, 50%. M H Mandel, 50% Burton Mandel , 1635%. Edward F Pohrer, 4935% Burton Mandel , Trustee for Stuart Mandel, 1635% M H. Mandel & Charlotte Mandel, Trustees for Alan Mandel, 17% Edward F. Pohrer, 50% M. H Mandel, 50% Marluel Pohrer, 50%. Charlotte Mandel, 50%. Edward F Pohrer, 25%. M H Mandel, 30%. Charlotte Mandel, 20%. Clara Mandel, 25%. Edward F . Pohrer , 323/2% M H Mandel, 323% 3 others at 73%, 2234% 5 others at 232%, 1232%. Charlotte Mandel, 50% Marluel Pohrer, 50% Charlotte Mandel, 50%. Marluel Pohrer, 50% Burton Mandel, 3s Burton Mandel, as Trustee for Stuart Mandel, N. M. H. & Charlotte Mandel, as Trustees for Alan Mandel, je Harry J . Pohrer, as Trustee for Jack, Gary, & Patti Pohrer and Joy McNulty, 32 The business of the Respondent is the operation of parking lots and parking garages in downtown St. Louis. All operate under the trade name "P-M Parking System." This name is derived from the names Mandel and Pohrer, who with 2 Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his demeanor as I observed it at the time the testimony was given. Cf. Retail Clerks International Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, foot- note 3 ; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I Indicate that I do not rely upon or reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, Is discredited by me. Cf. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2). P-M PARKING SYSTEM 993 members of their families own practically all the stock and other proprietary in- terests in said business entities. All of the parking facilities operated by the various business entities are under the general supervision of Kermit C. Albus who is directly responsible to M. H. Mandel and Edward F. Pohrer. If there is to be any major change, he receives his instructions from them. These three men jointly fix the rates to be charged at each of the facilities. In addition to his responsibility for the operations of the various entities , Manager Albus is also the person who is responsible for their labor relations. Each of the business entities maintains its business office at 203 North 10th Street, St. Louis, Missouri. A considerable amount, but not all, of the clerical work for each entity is performed at that address by a clerical staff which is on the payroll of Jack Burton Management Company. The cost of such clerical work is allocated among the concerns which are named as Respondents in the com- plaint. Manager Albus also is paid by Jack Burton Management Company, and his salary is allocated among the various entities. Advertising and promotion are carried on in the name of P-M Parking System, and the cost thereof is allocated among the entities and other concerns who operate under the same name, but who are not respondents herein.3 All of the employees at the facilities operated by the various entities are hired subject to the approval of Manager Albus. The rate of pay for employees work- ing at parking lots is the same. The rate of pay of employees working in garages is also uniform. All employees wear the same distinctive uniform bearing the "P-M" label. Employees are sometimes transferred from one facility to another. At times, the transfer is temporary, as when one facility is short of help. When this occurs, the employee usually punches out his timecard at the location where he has been working and punches in at the new place.4 In such a situation, if the facilities are owned by different business entities, he usually receives two paychecks at the end of the week, as each entity maintains its own payroll. If an employee desires extra work, he may be assigned by Manager Albus to work at the facility of another entity after he has completed his normal shift Based on the foregoing , I find that the Respondent is a "single employer" for jurisdictional purposes. I find present here the principal factors which the Board has considered relevant in determining the extent of integration: (1) interrelation of operations , (2) centralized control of labor relations , ( 3) common management, and (4) common ownership or financial controls Sakrete of Northern California, Inc, 137 NLRB 1220; NLRB, Twenty-first Annual Report, pp. 14-15. The business of Respondent, considered collectively as it must be, meets the jurisdictional standards of the Board . Respondent does a gross volume of business in excess of $500,000 per year which is sufficient for the Board to take jurisdiction under its jurisdictional standard for retail establishments . Carolina Supplies and Cement Co., 122 NLRB 88. Included in this sum are sales of gasoline and allied petroleum products made at several of the facilities. These products are trans- ported directly to the Respondent's business locations from the State of Illinois and exceed in value $50,000 per year.6 3 Associated Garage Company , of which M H Mandel is president and a substantial stockholder , and Airport Parking Co 4 The various facilities are within walking distance of each other The employee is paid for time consumed in travel 5 The fact that for reasons best known to the Mandels and Pohrers they prefer to do business in various business forms and divide the ownership of each concern in a different manner is not deemed to be of any consequence in this context See Colonial Catering Company, 137 NLRB 1607 ; Mohican Trucking Company, 131 NLRB 1174, 1175 ; Frank S Owens Co , et at, 118 NLRB 1619, 1620; and Southern Cafeteria Operating Co , Case No 10-RC-4436 (not published in NLRB volumes). It is noted also that there are two other companies who do business under the name "P-111 Parking System," who have some degree of affiliation with the Respondent, but who were not named as respondents in the complaint The fact that these companies were not made respondents herein does not affect my finding that those named con'titute a single business enterprise for jurisdictional purposes Since, as hereinafter found the concerns named as Respondent in the aggregate meet the Board's jurisdictional to at<, it makes no difference that there may he additional affiliates who are not named as respond- ents Cf Tanner-Brice Company, 82 NLRB 477; Venus Die Engineering Company, 110 NLRB 336, Empire Milling Company, 117 NLRB 1782 6 Cf Siemons Mailing Service, 122 NLRB 81. Respondent also engages in nonretail operations in which , under contract with two large retail department stores and a national 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent argues that the Board's jurisdiction here is very tenuous and question- able, and that the Board should decline to take jurisdiction unless it is prepared to overrule its decision in System Auto Parks, Case No. 13-RC-5902, CCH paragraph 55, 641 (not published in NLRB volumes). Respondent misreads this decision. The Board there did not hold that parking lots per se were outside of its jurisdiction. The decision, rendered before the current jurisdictional standards were established, was bottomed on the finding that there was neither inflow nor outflow in interstate commerce 7 In any event, the Board recently has held that a combination carwash- polishing service and a retail filling station met the Board's jurisdictional standard where the enterprise was paid, in the aggregate, in excess of $50,000 in 1959 for car washing and polishing by 11 automobile dealers each of which was engaged in interstate commerce, and where the enterprise made direct out-of-State purchases amounting to more than $4,000 the same year. Automotive, Petroleum & Allied Industries Employees Union, Local 618, et al. (Charles Schmitt, et al., d/b/a Charlie's Car Wash and Service), 136 NLRB 934. Respondent's services, ex- clusive of its sale of gasoline received in interstate commerce, are not so essentially different from those involved in that case, insofar as their effect on commerce is concerned, as to call for a different rule. In view of the foregoing, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Automotive, Petroleum and Allied Industries Employees Union, Local 618, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act III. THE ISSUE Whether the Respondent's interrogation of certain of its employees and its reprimanding one of them for previously denying union membership constituted interference with, restraint, or coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. IV THE UNFAIR LABOR PRACTICES A. The Union's demand for recognition In February 1962, the Union began to organize Respondent 's employees. On February 15, 1962, the Union wrote identical letters to the Nmth-Chestnut Garage," one of the facilities operated by Respondent , at 107 North 9th Street, and to "P-M Parking System" at 203 North 10th Street, St Louis, Missouri. The letters, signed by Melroy Horn, president and business representative of the Union , stated that the Union had been designated collective -bargaining representative of the employees of the addressee and requested a meeting for the purpose of engaging in collective bargaining.8 The letters were received by Respondent on February 16, 1962, and were routed to Kermit C. Albus, general manager of all of Respondent 's facilities and the person in charge of Respondent 's labor relations . On February 28, 1962, Manager Albus on behalf of "Ninth-Chestnut Garage" and "P-M Garages, Inc." wrote identical letters to the Union, stating that the Union 's request was the first information that the Company had of any interest by the Union in the Company's employees ; that the Company did not know that the Union had been designated by the Company's employees as their collective-bargaining representative or that it represented a majority of them ; and that before entering into discussions or collec- bank, all in St Louis, It provides a certain amount of free parking or reduced-cost parking to the customers of these institutions During the calendar year 1961, Respondent re- ceived a total of $36,278 79 from these concerns for such services 7 Compare Kinney SY8te,e, Inc, Case No. 2-RC-11395 (not published In NLRB volumes), where jurisdiction was taken of affiliated parking lots and garages in six States, where the total operations had annual gross revenue exceeding $500,000, and annual out-of-State purchases from companies engaged in interstate commerce exceeded $50,000 fi Although the Union had been picketing the St. Charles garage, one of Respondent's facilities, for the past 3 years, the record does not disclose any earlier attempt by the Union to represent its employees. The picketing was confined to the carrying of umbrellas bearing the name of the Union. No other signs were carried. P-M PARKING SYSTEM 995 five bargaining, the Company should be furnished with evidence that the Union does, in fact, represent a majority of the Company's employees .9 On or about March 2, 1962, most of Respondent's employees at three of its fa- cilities appeared at work wearing union buttons. B. The interrogation of Freemont Dickerson After receiving the Union's letter, Manager Albus decided to make a spot check of Respondent's employees to determine whether there was any interest in the Union. On or about February 24, 1962, Manager Albus, during a routine visit to the Ninth and Chestnut garage, approached Freemont Dickerson, one of the employees at the garage. No one else was present at the conversation. Manager Albus asked Dicker- son whether he had joined the Union or whether anybody had spoken to him about the Union. Dickerson replied in the negative. Manager Albus then said that the Union was "no good for nothing but taking your money." 10 Nothing further was said On March 2, Dickerson and other employees began wearing the union button. Neither the manager of the garage nor anyone from the Respondent said anything to him about his wearing the button. Nor was there any change in the conditions and terms of his employment. On or about March 23, 1962, Dickerson went out on strike with the Union. C. Interrogation of Henry Reed On the same day, Manager Albus approached Henry Reed, another employee at the garage. He patted Reed on the back and asked him if he remembered the air- port deal.ii Reed answered that he did. Manager Albus then asked him how all the little Reeds were. Reed said they were fine. Then Manager Albus asked Reed if he had heard anyone around the garage talking union talk. Reed answered in the negative. No one else was present at this conversation. Manager Albus admitted interrogating Reed as to whether he was joining the Union and whether anybody had talked to him about the Union. He denied, however, making any reference to the airport deal or inquiring about the little Reeds. Respondent argues that Reed's testimony about the airport deal should not be credited because in his affidavit to the field examiner given on March 28, Reed made no reference to that statement. Reed's explanation was that he forgot about it when he made the affidavit, but got to thinking about it later when he was on the stand. Based upon my observation of the demeanor of the witnesses, which is supported by the considerations discussed below, I credit the testimony of Reed and do not credit Manager Albus' denial. Reed did not attach any significance (in the context of an unfair labor practice) to the statement concerning the airport deal.12 Thus, although he had reviewed his testimony with counsel for the General Counsel before testifying, he did not tell him that the airport deal had been mentioned, nor did he say anything about it to counsel for the Union. As a matter of fact, Reed was not interrogated about the airport deal by any of the counsel, and its significance, if any, in the context of an unfair labor practice was completely over- looked by all parties until after the Trial Examiner raised the question as to what was meant by the phrase "airport deal," after cross-examination had been concluded. Further evidence that Reed did not deem the remark about the airport deal to be of any significance in an unfair labor practice concept is his testimony that he did not know that his continued employment was a condition of his probation. These 6 Prior to writing this letter, Manager Albus had interrogated three of the employees, and M H. Mandel, another All denied union membership. The interrogation is discussed fully infra. ii Manager Albus admitted interrogating Dickerson, but denied making this statement I do not credit his denial. 11 The "airport deal" refers to the fact that Reed had come into possession of a .45 re- volver which was Government property and which had been stolen at the airport He was charged with receiving stolen property, pleaded guilty, was sentenced, and put on probation By agreement between Respondent and the probation officer, Reed was main- tained as an employee. His continued employment was a condition of the probation. When the interrogation referred to in the text occurred, Reed was still on probation 12 As more fully discussed infra, counsel for the General Counsel and counsel for the Union contend that the reference to the airport deal made the interrogation of Reed coercive in that it was a reminder to Reed of his need for a job and the difficulty of getting another job in view of his criminal record. 672010-63-vol. 139--64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances do not suggest that Reed's testimony to the effect that Manager Albus asked him about the airport deal was fabricated for the purpose of charging Re- spondent with an unfair labor practice . In sum, based upon my observation of the demeanor of Reed while he was testifying , corroborated by the foregoing cir- cumstances, I credit his testimony. On March 2, and thereafter, Reed wore a union button . He continued to be employed without any change in the conditions or terms of his employment until March 23, when he went out on strike with the Union. D. Interrogation of Glen Quarles The next day, Manager Albus interrogated Glen Quarles, also an employee at the Ninth and Chestnut garage.13 He asked Quarles whether anybody from the Union or any employee had approached him about the Union, and Quarles answered in the negative.14 After Quarles started to wear the union button, he had another conversation with Manager Albus, in which the latter said to Quarles, "I don't mind you wearing that button, but I want you here on time." Quarles' failure to report to work punctually had been a problem in the past. Several years ago, he had been discharged for tardiness. Some time in January, Manager Albus told Quarles that he would not put up with his tardiness . Three weeks later (and before the interrogation), Manager Albus again spoke to Quarles about his tardiness. Quarles continued to work without any change in the conditions or terms of his employment until March 23, when he went out on strike with the Union.15 E. Interrogation of Grady Harris Grady Harris was employed as the night man at the St. Charles garage. Between 1 and 7 o'clock in the morning, he was the only employee at the garage. It was an almost daily practice of H. M. Mandel to telephone Harris during the early hours of the morning. On these occasions, Mandel would inquire as to how many marks were on the cash register, how much gas was sold, and/or how many cars were in the garage. In the latter part of February 1962, Mandel, during one of such telephone con- versations, asked Harris if he knew anything about the Union. Harris told him that he knew nothing about it. Mandel asked him if he was sure , and Harris replied that he was. About 2 days later, Mandel, during another such telephone conversa- tion, told Harris that he had heard that Harris had joined the Union. Harris an- swered that he did not know who could have told him that. Mandel replied that somebody did. About 4:10 in the morning of March 3 , 1962, after most of Respondent's em- ployees at three of its facilities (including the St. Charles garage ) started to wear union buttons, Mandel telephoned Harris and asked him why he had not told him that he had joined the Union. Harris answered that he was not supposed to tell him. Mandel then said that he was the boss and was supposed to know about those things, to which Harris replied that he was not supposed to tell him. Mandel then said that he could not trust Harris any more. Mandel also said that he did not care about the employees ' wearing the union button , that they could wear union buttons "until their ass dragged the ground." 16 13 Nobody else was present at this conversation 14 Quarles also testified that Manager Albus followed the interrogation by asking him how long he had been working for the Respondent, and that he answered 11 years. Manager Albus is then alleged to have said, "That is a pretty long time" The foie- going, it is argued, made the interrogation coercive In that it Implied a threat of dis- charge Manager Albus denied asking this question and making the subsequent comment. Based on my observation of the demeanor of the witnesses while testifying, I credit Manager Albus' denial in this instance Cf. Florida Steel Corpo/ation (Tampa Forge and Iron Division), 131 NLRB 1179, 1180; Glass-Tite Industries, Inc, 133 NLRB 1287 It may be noted in passing that Manager Alhus had a more potent weapon if he desired to coerce Quarles, viz, the latter's record of frequent tardiness 15 Quarles also testified that he had something to do with signing up two employees, one at his home and the other In Quarles' car. The testimony is of no significance in the present context, as there is no evidence In the record that Quarles' union activities were known to Respondent 19 Mandel denied each of the foregoing conversations. Based on my observation of the demeanor of the witnesses while testifying, I credit the testimony of Ilairis as above set forth and do not credit Mandel's denial Harris did not appear to be astute enough to fabricate these Incidents P-M PARKING SYSTEM 997 In the foregoing conversation, Mandel did not inquire as to the status of the business.17 Later that morning about 5 o'clock, Mandel again telephoned the garage, but received no answer to his call. He redialed the number about 5 minutes later and still received no answer. He thereupon drove to the garage, went past the cashier's cage, parked his car in the garage, and walked back to the cashier's cage. There he found Harris asleep with his radio playing. He knocked on the glass of the cashier's cage and shouted, "Grady, wake up!" He recived no response; then walked through the garage to see if everything was all right. Returning to the cashier's cage, he found Harris still asleep. He rapped on the glass again; shouted, "Hey, Grady, wake up!" Harris roused himself, and Mandel entered the cage and shook him. He said, "Grady, wake up, you can't sleep on the job here." Harris awoke, denied that he had been asleep, and said that he had just dropped his head in his hands.18 Mandel left the garage and returned shortly thereafter in the com- pany of the assistant night manager of the Jefferson Plaza garage, whom he asked to drive by from time to time to see if Harris was on duty and not asleep. At that time Mandel told Harris that wearing a union button did not give him the privilege of sleeping on the job, and that he was going to report the matter to Manager Albus. Later that morning Mandel telephoned Manager Albus about the matter. Man- ager Albus asked Mandel for his recommendation, and Mandel replied that he had none, that he felt Harris should be reprimanded. Manager Albus telephoned Harris, reprimanded him, and said he would see what could be done for him. Other than the reprimand, Harris was not disciplined, nor were the conditions or terms of his employment changed. He remained on the job, received early morning calls from Mandel as before, execept when Mandel was out of the city, and went on strike with the Union on March 23.19 Concluding Findings In Blue Flash Express, Inc., 109 NLRB 591, the Board rejected the contention that an employer's interrogation of his employees was coercive per se and, held that "the test is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act" (id. at p. 593). The Board pointed out that "the answer to whether par- ticular interrogation interferes with, restrains, and coerces employees must be found in the record as a whole." (Id. at p. 594.) In the instant case, I conclude and find that, with one possible exception discussed infra, the interrogation did not interfere with, restrain, or coerce the employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent's interrogation of the four named employees was for a legitimate purpose. Blue Flash Express, Inc., supra. The Union had made a demand for recognition and bargaining. Before answering this demand, Respondent made a spot check of its employees to determine whether they had, in fact, selected the Union as their bargaining agent. Not only was the purpose of the interrogation legitimate, but it was conducted against a background entirely free of employer hostility to union organization?° Nor was there any systematic interrogation of 31 Harris so testified. Later, Harris contradicted himself In this regard. I do not credit his contradiction Mandel testified credibly that he telephoned the garage about 5 a m., and received no answer. There would have been no reason for Mandel's later telephone call (which led to his admitted visit to the garage), if he had already Inquired about the status of the business. 18 Harris testified that he was not asleep, but was merely resting his head on his hand while listening to the radio. I do not credit his testimony in this regard, nor do I find his version of the incident to be credible Harris testified that Mandel knocked on the cage, "turned right around and walked out" of the garage, that he, Harris, walked out of the cage and saw Mandel near the exit of St Charles Street, about 40 feet from the cage ; that he did not call to Mandel ; nor did he see which way Mandel turned at the exit. The foregoing is hardly the normal behavior of an alert employee when his employer visits his place of employment. 191 do not credit Harris' further testimony that in a subsequent telephone conversation, Mandel said to him that since he (Harris) was asleep on the job that might make a little difference about the way he felt about the Union. Moreover, this alleged statement was not charged In the complaint and was not in issue 10 Neither the General Counsel nor the Union contend that the Union's picketing of the St. Charles garage for the past 3 years is evidence of antiunion animus. Clearly, it is not The Union had not made any earlier demands for recognition, and the pickets did not carry signs charging the Respondent with any unfair labor practices. They merely carried umbrellas bearing the name of the Union. Obviously, what a union does in front of an 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees. Compare Charlotte Union Bus Station, Inc., et al., 135 NLRB 228. Only four employess were questioned (cf. Valley Feed and Supply Co., Inc., 135 NLRB 778), three of them at the Ninth and Chestnut garage to which facility the Union had specifically sent a demand for recognition. In the instant proceeding, the interrogation, except possibly in the case of Reed, was not accompanied by any threat of any kind. Thus, in the case of Dickerson, there was a simple interrogation as to whether he had joined the Union and whether anybody had spoken to him about joining. The subsequent statement of Manager Albus that the Union was "no good for nothing but taking your money" was an expression of opinion protected by Section 8(c) of the Act. Clearly, it was not coercive 21 "Mere words of interrogation or perfunctory remarks not threatening or intimidating in themselves made by an employer with no anti-union background and not associated as part of a pattern or course of conduct hostile to unionism or as part of espionage upon employees cannot, standing naked and alone, support a finding of a violation of Section 8(1)." (Max Sax, d/b/a Container Manufacturing Company V. N.L.R.B., 171 F. 2d 769, 772-773 (C.A. 7), quoted with approval N.L.R.B. v. Arthur Winer, Inc., 194 F. 2d 370, 372 (C.A. 7), cert. denied 344 U.S. 819.) The interrogation of Quarles, absent the alleged reference by Manager Albus to Quarles' length of service which I have not credited, is likewise an instance of simple interrogation and was not coercive. Nor was it rendered coercive by Manager Albus' statement to Quarles in a subsequent conversation: "I don't mind you wear- ing that button, but I want you here on time." It must be remembered that Manager Albus had twice admonished Quarles about his tardiness during the 2 months before the Union's demand for recognition. Manager Albus was clearly within his rights and, indeed, was performing his managerial function in telling Quarles that he was to report to work on time. As to Harris, the first two conversations which he had with Mandel were similarly free of any threats or promises. The third, which occurred after the men started to wear union buttons, was not an instance of true interrogation. Harris' union membership was no longer in doubt Mandel's inquiry as to why Harris had not told him that he had joined the Union was merely the normal reaction of a person to whom another had lied. And his comment that the could no longer trust Harris was not made in the context of union membership, but because Harris had twice lied to him. Again, this is a normal reaction of any person under similar cir- cumstances. It is argued that the comment was coercive in that it implied possible discipline or discharge. Indeed, the comment might be so construed. But if it was such a threat, it was not essentially a threat for engaging in union activity. Rather, it was based on Harris' lying to him; and it is reasonable to believe that Mandel's reaction and comment would have been the same if Harris had lied to him about a matter of business. In any event, I do not believe that this comment, made after Harris had openly declared his union affiliation by wearing a union button, retroactively colored the earlier interrogation in any way or rendered such interrogation coercive. Mandel's subsequent statements that the men could wear their union buttons until their "ass dragged the ground" and the fact that Harris wore a union button did not give him the right to sleep on the job are not found to be coercive. The first may be considered a petulant comment of an employer who is confronted with organizational activity in his concern. But it would require considerable stretching to construe the statement as a threat of discharge or discipline. The second state- ment (that Harris' wearing a union button did not give him the right to sleep on the job) is a truism. At most it was a warning to Harris that his membership in the Union would not prevent his being discharged for cause. This is well-settled law; and a statement to that effect, particularly when Harris had just then been employer's premises is not proof of antiunion animus on the part of the employer who has not expressed his feelings toward the union In this context, however, the Union contends that a no-solicitation notice posted at the Ninth and Chestnut garage on March 21, is evidence of Respondent's hostility toward the Union I do not agree. The notice was general in nature-not specifically directed at union solicitation. Moreover, it was posted approximately a month after the Interroga- tion occurred . I find that this after-the-fact posting of the notice did not render the interrogation coercive. n The Union cites Seaboard Diecasting Coiporation , 137 NLRB 536, as authority to the contrary A similar statement in that case was made repeatedly to the employees and was accompanied by a threat to close the plant, and the plant was thereafter closed. The case does not hold that such a remark is, in itself , coercive. P-M PARKING SYSTEM 999 found asleep on the job, cannot be considered to be coercive or evincing any hostility to union activity. In sum, I find that Mandel's interrogation of and reprimand to Harris was not coercive, nor did it interfere with or restrain him in the exercise of his rights under Section 7 of the Act. Contrary to the three instances discussed above, the interrogation of Reed does present an instance of possible coercion. Manager Albus' reference to the airport deal and to "the little Reeds" could be construed as a reminder to Reed of his need for continued employment (both as a condition of his probation and to feed and maintain his family) and of his difficulty in obtaining our employment in view of his prior conviction. As such, it would imply that he was running the risk of discharge if he engaged in union activity. However, it is equally possible to construe the reference to the airport deal as an appeal to Reed's loyalty and gratitude for Respond- ent's retention of Reed after he had gotten into trouble. And as previously found, Reed did not attach any significance in an unfair labor context to this remark. The reference to "the little Reeds" could have been no more than part of an informal greeting. It is, however, unnecessary to resolve this issue, since even if these statements be considered coercive, the case presents only an isolated incident not warranting the issuance of a remedial order. Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 196, 198; The Walmae Company, 106 NLRB 1355, 1357. It is argued that the interrogation in the instant case does not fall within the permissible ambit, because it was not accompanied by the safeguards present in the Blue Flash Express case, where the employees were told that the purpose was to determine whether the union represented a majority, the interrogation was limited to the simple question whether the employee had joined the union, and the employees were assured that there would be no economic reprisals. I find no merit in this contention. The only rule laid down in the Blue Flash Express case is that interroga- tion is not coercive per se and that "the test is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees [109 NLRB at p. 593, emphasis supplied]. The Board did not intend to creat a precise mold into which all cases of interrogation must fit in order to be considered non- coercive. It did not say that to be noncoercive, the interrogation would have to match the precise facts that were present in the Blue Flash Express case. Of course, the circumstances alluded to by the Board in that case rendered the interrogation noncoercive. But the Board recognized that there could be untold other circum- stances which likewise would render the interrogation noncoercive. Hence, the Board very wisely stated the rule in general terms: "under all the circumstances." Thus, in at least two cases since Blue Flash the Board found noncoercive interroga- tion where the safeguards alluded to above were not present. Lily-Tulip Cup Corporation, 113 NLRB 1267 (note particularly the finding at p. 1268 that "the interrogation, in the circumstances present here, does not reasonably tend to restrain or interfere with the employees" [emphasis supplied]); Dobbs Houses Company, Inc., 139 NLRB 236. In sum, the particular safeguards present in the Blue Flash Express case do not constitute a sine qua non to a finding that interrogation was noncoercive. It is also argued that the interrogation was coercive because Respondent was attempting to elicit information as to the source of union organization. Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399, is cited to support this contention. The fallacy in this contention is that in the instant case the employees were never interrogated as to the identity of the employees who were active in the Union's organizational campaign, and it is stretching the interrogation beyond its normal meaning to so construe the questions. It may be noted in passing that in the Orkin case the interrogation was not for a legitimate objective and occurred in a context of threats to close the plant if the union organized it and of pressures put on employees to withdraw their union cards. CONCLUSIONS OF LAW 1. Respondent consisting of P-M Garages, Inc.; Charmar Management Company, a corporation; Jack Burton Management Company, a corporation; Speedway Realty Company, a corporation; Scruggs-Vandervoort-Barney Garage Company, Inc.; Park- N-Shop, Inc.; Jefferson Parking Company, Inc.; Charlotte Mandel and Marluel Pohrer, a joint venture doing business as Chestnut Speedway; Burton Mandel, individually and as trustee for Stuart Mandel, M. H. Mandel and Charlotte Mandel, as trustees for Alan Mandel, and Harry J. Pohrer, as trustee for Jack Pohrer, Gary Pohrer, Patti Pohrer and Joy McNulty, a joint venture doing business as Ten Ten Olive Company; 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all doing business as P-M Parking System , is a single employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8 (a) (1) of the Act. RECOMMENDATION On the basis of the foregoing and the entire record , it is recommended that the complaint be dismissed in its entirety. Diebold, Incorporated and United Steelworkers of America, AFL-CIO. Cases Nos. 9-CA-2534 and 9-RC-4831. November 15, 1962 DECISION AND ORDER On July 26, 1962, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that by such unfair labor practices the Respondent has interfered with a free choice of a bargaining representative and recommend that the election held on May 4, 1962, be set aside and a new election conducted. The Respondent and the Intervenor, Safe Workers' Organization, Chap- ter No. 1, Incorporated, filed exceptions to the Intermediate Report with supporting briefs. The General Counsel filed no exceptions. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications.' THE REMEDY The Trial Examiner recommended, inter alia, that the Respondent cease and desist from in any manner infringing upon the rights of 11. The Trial Examiner inadvertently found that Foreman Pfirrman denied on the stand that in his conversation with employees Lutes and Oglesby, on February 23, 1962, be mentioned "The Steelworkers." The record, however, shows that on cross-examination Pfirrman admitted that he stated to these employees that, in his opinion, on the Steel- workers' past record, the Company could not expect a workable agreement from it. The Intermediate Report is corrected accordingly. 2. Although not specifically set forth in the Intermediate Report, the Trial Examiner's final conclusion that the Respondent has violated Section 8(a) (1) of the Act by the con- 139 NLRB No. 71.