Malcolm Konner Chevrolet, Inc.

MALCOLM KONNER CHEVROLET, INC., ETC. 541 Malcolm Konner Chevrolet, Inc., and Konner Chevrolet, Inc. and George Gibson and Amalgamated Local Union 355, Party to the Contract Amalgamated Local Union 355 and George F. Gibson and Mal- colm Konner Chevrolet , Inc., and Konner Chevrolet, Inc., Party to the Contract. Cases Nos. 22-CA-1282 and 22-CB-527. ''larch 18, 1963 DECISION AND ORDER On November 9, 1962, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. There- after, the Respondents and the General Counsel filed exceptions to the Intermediate Report and 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in these cases, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below.' ORDER The Board adopts as its Order the Trial Examiner's Recommended Order with the modifications noted below 2 'The Trial Examiner found, and we agree , that Respondent Donner Chevrolet, Inc., gave unlawful assistance to Respondent Local 355 by soliciting membership for it, and also coercively interrogated its employees as to whether they had signed or circulated a petition stating that they did not wish to be represented by Local 355, and unlawfully discharged employee Gibson for opposing Local 355. We shall enter our usual order in such circumstances, which the Trial Examiner neglected to do, that the Respondent Employer withdraw and withhold recognition from, and cease giving effect to its con- tracts with, the Respondent Union, unless and until the Union has been certified by the Board. See, e.g., A. C. Smith Corporation, Granite City Plant, 132 NLRB 339; Trenton Manufacturing and Distributing Company, 129 NLRB 797. 2 Change paragraph (d) in section B, subsection 1, to paragraph ( e) and substitute therefor the following paragraph ( d), and make a similar addition to the counterpart thereof in Appendix B: (d) Recognizing or bargaining with Local 355 as the collective -bargaining agent of its shop workers and salesmen , and performing, enforcing, or giving effect to its contracts of June 30, 1962, with Local 355, or any modification , supplement, renewal, 141 NLRB No. 43. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon two separate charges filed by George F. Gibson on June 19, 1962,' the General Counsel of the National Labor Relations Board, by the Regional Director for the Twenty-second Region (Newark, New Jersey), issued his consolidated com- plaint, dated August 3, 1962,2 against Malcolm Konner Chevrolet, Inc., and Konner Chevrolet, Inc. (Case No. 22-CA-1282), and Amalgamated Local Union 355 (Case No. 22-CB-527). As amended, said complaint in substance alleges that Respond- ent Employers have engaged in and are engaging in conduct forbidden by Section 8(a)(1), (2), (3), and (4) of the National Labor Relations Act, herein called the Act, and that Respondent Local 355 has engaged in and is engaging in conduct proscribed by Section 8(b) (1) (A) and (2) of the Act. Respondent Employers and Respondent Union each filed an answer which, as amended at the trial, admitted some facts but denied committing any unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner James V. Con- stantine at Newark, New Jersey, on September 4 and 5. All parties were repre- sented at and participated in the hearing, and were given and availed themselves of an opportunity to adduce evidence, to examine and cross-examine witnesses, and to offer oral argument. The parties were also granted the right to file briefs. Re- spondent Employers have submitted briefs. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYERS Malcolm Konner Chevrolet, Inc., a New Jersey corporation, was engaged until June 4 at Caldwell, New Jersey, as a franchised dealer for new and used Chevrolet cars. Its president and treasurer is Malcolm Konner, its secretary is Malcolm's wife, Florence, and its only stockholders are said Malcolm and Florence Konner. As hereinafter found, this corporation went out of business and was succeeded on June 4 by Malcolm Konner Chevrolet Corp. at Paramus, New Jersey, and that the latter is owned and operated by the former's stockholders. Both corporations en- gaged in the business of selling at retail automobiles, automobile parts, and related products During the year preceding June 4 Malcolm Konner Chevrolet, Inc., sold products valued in excess of $500.000 and received goods valued in excess of $50,000 directly from points outside the State of New Jersey. I find that Malcolm Konner Chevrolet, Inc., is engaged in commerce as defined in Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction over it and its successor. Konner Chevrolet, Inc., a New Jersey corporation, was engaged at Pine Brook, New Jersey, until June 4 as a franchised dealer for Chevrolet cars, both new and used. On June 4 it moved to Caldwell, New Jersey. Its president is Mitchell Konner, a brother of Malcolm Konner, and its stockholders are said Mitchell, his wife, and Jacob Konner, his father. As hereinafter narrated, I have found that Konner Chevrolet, Inc , as a separate corporation, is neither integrated with nor a successor to Malcolm Konner Chevrolet, Inc. Konner Chevrolet, Inc., is engaged in the business of selling at retail automobiles, automobile parts, and related products. or extension thereof, unless and until Local 355 has been duly certified by the National Labor Relations Board as the exclusive representative of said employees. Change paragraphs (c) and (d) in section B, subsection 2, to (d) and (e), respec- tively, and add the following new paragraph ( c), and make a similar addition to the counterpart thereof in Appendix B: (c) Withdraw and withhold all recognition from Local 355 as the collective- bargaining representative of its shop workers and salesmen, unless and until Local 355 shall have been certified by the National Labor Relations Board as the exclusive representative of such employees. Change section C, subsection 1, paragraph (b), to read as follows: Enforcing or maintaining in effect its collective-bargaining contracts, or any supple- ment, extension to, or modification of said contracts, with Malcolm Konner Chevrolet, Inc . Konner Chevrolet, Inc , and any successor to Malcolm Konner Chevrolet, Inc , or Konner Chevrolet, Inc. 3 The charges in Case No . 22-CA-1282 were amended on June 25 and July 18. 2 All events mentioned hereafter occurred in 1962 except as otherwise stated. MALCOLM KONNER CHEVROLET, INC., ETC. 543 During the year ending June 1962, Konner Chevrolet, Inc., sold products valued in excess of $500,000, and received goods valued in excess of $50,000 directly from points outside the State of New Jersey. I find that Konner Chevrolet, Inc., is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over it. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Local Union 355, herein called the Union or Local 355, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Many of the factual issues were in dispute . Where dispute exists, it has been resolved in accordance with my evaluation of the credibility of the witnesses and the more probable inferences from the evidence. The following findings are based on the credited evidence. A. The relationship between Respondent Corporations Malcolm Konner as an individual has been a General Motors franchised dealer since 1935. According to him, General Motors has adopted as a policy (1) not to grant more than one franchise to a dealer, and (2) the holder of a franchise, known as the "principal," must be a specific individual regardless of whether he conducts the business as a sole proprietor, through a corporation, or otherwise. Malcolm was the designated principal in the franchise which he operated at Cald- well, New Jersey, through Malcolm Konner Chevrolet, Inc., as the franchised dealer. At sometime in 1959, Malcolm applied for a Chevrolet dealer's franchise in Paramus, New Jersey. As a condition to approving this, Malcolm testified, General Motors insisted that Malcolm "cancel" the dealership in Caldwell. On June 4 he obtained the Paramus franchise, but contemporaneously with it Malcolm signed a paper "cancelling out" the dealership of Malcolm Konner Chevrolet, Inc., at Caldwell. As a result of acquiring a franchise in Paramus naming him as the "principal," Malcolm formed a new corporation to become the franchised dealer and to run the business at this new location, because, as he testified, "That was one of Chevrolet's requirements." The new corporation, organized under the laws of New Jersey, is named Malcolm Konner Chevrolet Corporation. Both Malcolm Konner Chevrolet, Inc., and Malcolm Konner Chevrolet Corp. have the same stockholders, officers, and directors. Since June 4 Malcolm Konner Chevrolet, Inc., has been in the process of being liquidated. Its assets have been disposed of as follows: Some automobile parts were "sold" to Malcolm Konner Chevrolet Corp. in Paramus and some were exchanged for other parts with Konner Chevrolet, Inc., when the latter was located in Pine Brook. Automobiles on hand on June 3 were mostly sold to Konner Chevrolet, Inc., to Malcolm Konner Chevrolet Corp., and to other dealers; some were retained. The real estate in Caldwell occupied by Malcolm Konner Chevrolet, Inc., is owned in part by Malcolm Konner and his wife, and in part by Malcolm Konner, Inc., a separate corporation wholly owned by Malcolm Konner and his wife. These owners had leased such premises to Malcolm Konner Chevrolet, Inc. This lease was "can- celed" on June 4, 1962. The property formerly occupied by Konner Chevrolet, Inc., at Pine Brook is owned by Te-Kon Realty Corporation, which is not connected with the former in any way. Te-Kon leased the same to Konner Chevrolet, Inc. The parts owned by Konner Chevrolet, Inc., at Pine Brook were transferred to, exchanged, or sold to Malcolm Konner Chevrolet Corp. in Paramus in return for parts in Caldwell belong- ing to Malcolm Konner Chevrolet, Inc. However, all cars-whether new or used- belonging to Konner Chevrolet, Inc, at Pine Brook, were removed to its new loca- tion in Caldwell .3 It occupies the premises vacated by Malcolm Konner Chevrolet, Inc., in Caldwell. When Konner Chevrolet, Inc., moved to Caldwell, it retained about eight em- ployees and laid off about three or four. One of those laid off, Phil Barish ( the sales manager) is now employed by Malcolm Konner Chevrolet Corp. However, Konner Chevrolet, Inc., when it moved to Caldwell, hired some, but not all, of the 8 When Mitchell Bonner moved his franchise from Pine Brook to Caldwell, he was first required by General Motors to "cancel out" in Pine Brook. Apparently be was not re- quired to organize a new corporation for this purpose. Ile Is the "principal" named in both the Pine Brook and the Caldwell franchise. M4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former employees of Malcolm Konner Chevrolet, Inc. One of these former em- ployees so hired was George F. Gibson; another is Service Manager Joe Medwin. All employees of Malcolm Konner Chevrolet , Inc., except an office girl, were released from its employ on June 4. The girl was retained to assist in the liquida- tion of the corporation. Most of those released were hired by Malcolm Konner Chevrolet Corp. or Konner Chevrolet, Inc. Concluding Findings as to the Relationship Between Respondent Corporations Although Malcolm Konner Chevrolet Corp., is a new corporation incorporated on or about June 4, I find that it is a successor to Malcolm Konner Chevrolet, Inc. This follows from the fact-which I find-that (a) the "principal" owning the franchise is the same person in both, (b) the stockholders and officers of both coporations are identical, (c) Malcolm Konner Chevrolet Corp. was organized by the same stockholders solely to take over and continue the business of Malcolm Konner Chevrolet, Inc., at a new location, (d) the remaining assets of Malcolm Konner Chevrolet, Inc, were transferred to Malcolm Konner Chevrolet Corp. with- out consideration,4 and (e) some parts of Malcolm Konner Chevrolet, Inc., were transferred to Konner Chevrolet, Inc., in return for the latter's transferring some ,of its parts to Malcolm Konner Chevrolet Corp. On the other hand, I find that Konner Chevrolet, Inc., is not integrated with or a successor to Malcolm Konner Chevrolet, Inc. This finding as to nonintegration is based upon the following factors: (a) no common ownership of stock exists; and (b) there is not a single common director or officer. The fact that the corporations involved are separately owned by brothers and that the brothers to some extent cooperate with each other is insufficient to establish integration J. G. Roy and Sons Company v. N.L.R.B., 251 F. 2d 771 (C.A. 1). Nor is Konner Chevrolet, Inc., a successor to Malcolm Konner Chevrolet, Inc. While it is true that some exchange of parts and of employees occurred between them, this took place as a convenience when each changed its location and the former moved to the old loca- tion of the latter. This exchange under the circumstances falls short of proving successorship, and I so find. B. The discharge of George F. Gibson Gibson was hired as a body and fender mechanic on September 30, 1960, by Malcolm Konner Chevrolet, Inc., in Caldwell, New Jersey. He worked under a service manager in charge of the shop workers. However, Joe Medwin, another service manager who is in charge of new car service, had authority over Gibson to the limited extent of telling the latter which used cars to work on and what to do with them. Medwin, whom I find to be a supervisor under Section 2(11) of the Act, was described by Gibson as "General Manager of the place," and boss of the polishers and all salesmen. Sometime in May, Medwin asked employee Charles W. McMickle to ascertain the sentiment of the employees regarding a union . Medwin added that he "could bring over somebody with the union" if the employees desired a union. Shortly after this, also in May, Medwin called Gibson and another employee to his office. Informing these two employees that the shop "was going to be a unionized shop," he told each of them to sign a set of three cards which he presented to each of them. One card in the set is a standard form of application for membership in Local 355, another is an application for Blue Cross and Blue Shield (which, it was stipulated, is "used by [Local 3551 for employees who desire coverage"), and the third is a standard application form for group insurance in united welfare fund and available to employees represented by Local 355 "in various bargaining units." These employees did subscribe thereto. After they had signed, Medwin also told these two employees , in response to a question by Gibson about the Union, that there would be no pay raise, that "it was just job security," and that a "representative" would soon come there to talk to the men. Finally, Medwin told them that if they did not want the Union they "did not have to have it." While there, Gibson observed several other employees who 4 Although there is testimony that such assets were "sold" by Malcolm Donner Chev- rolet, Inc, to Malcolm Konner Chevrolet Corp., I find that no genuine sale occurred, and that the situation amounted to no more than a transfer of assets from one of Malcolm's wholly owned corporations to another of his wholly owned corporations. By "wholly owned" I mean completely owned by Malcolm and his wife. MALCOLM KONNER CHEVROLET, INC., ETC. 545 entered Medwin's office "to sign their cards." Medwin also spoke to these employ- ees, repeating to them in substance the remarks he had previously made to Gibson.6 On the following Monday, Henry Stirt spoke to the mechanics and shopmen in Medwin's office. About 14 employees were present. After introducing himself as the representative of Local 355,6 he described the benefits which the employees would enjoy "in the contract and the insurance we [the employees] were getting." When some employees complained to him that the hospitalization plan of Local 355 failed to compare favorably with that which they then had, Stirt stated that he would "clarify it" at a later meeting. As the meeting adjourned Stirt asked Gibson to remain for a discussion. Previously that day Gibson had been selected shop steward in Medwin's office by the employees. On the next Thursday, Stirt, accompanied by another "member" of Local 355, again spoke to the same group of employees in the rear building of Malcolm Konner Chevrolet, Inc. Medwin also attended. Stirt described the differences between the existing hospitalization policies and those to which the employees would be "changed over." After this meeting, Gibson asked Stirt to have a vote among the employees on a collective-bargaining contract, as that was their desire. However, Stirt refused. About a week later Gibson again saw Stirt at the plant Gibson and two other employees asked that Stirt obtain a raise in wages for those on salary, but Stirt replied that it could not be done until the "present contract" expired. Then in the presence of a few more employees who had joined the group, Gibson asked Stirt to follow that provision of the constitution of the Union which prescribed that a vote be taken on a contract. Stirt replied, "I can't." Stirt then spoke to Gibson alone in a nearby room to which Stirt invited him. When Gibson told Stirt what the men wanted to have included in the contract, Stirt replied that they were pulling Gibson's leg, that he, Stirt, did not want to be bothered, and that, if Gibson "con- tinued," he, Gibson, would get himself in trouble. On or about June 1, Local 355 and Malcolm Konner Chevrolet, Inc., executed a collective-bargaining contract.? The next day Stirt gave Gibson a copy of a contract with "Konner Chevrolet of Caldwell and Paramus, New Jersey," describing it as "the contract of the Union . our [the employees'] contract." When Gibson again asked for a vote by employees on the new contract Stirt replied that he could not do it, but asked Gibson "to work with" him After some discussion relating to the dissatisfaction of the employees with the new insurance policies, Gibson told Stirt that Gibson and the employees did not think the Union was worth anything because "all he was selling us was insurance, and it wasn't worth it to have a union in for it." On or about June 6 Gibson telephoned Stirt that the men were dissatisfied with the contract which Stirt had given him, and again asked that a vote be taken on the contract. Two days later Stirt came to the shop and listened to the men's com- plaints about their wages. Stirt replied he could do nothing until the "following contract." Gibson demanded a vote on the contract, insisting that the constitution endowed the men with this prerogative. Stirt then called Gibson aside, again warned him that he would get into trouble "if he continued this," and repeated his previous request that Gibson "work with" him. On or about June 19 Gibson filed charges with the Board On that same day, Gibson circulated a petition among the men. Its text stated that its subscribers, employees of Konner Chevrolet, Inc., "hereby want to terminate membership with Local Union Amalgamated 355 on the grounds of misrepresentation." About 10 employees signed it. About 4 p.m. on June 22, John, a service manager of Konner Chevrolet, Inc., laid off Gibson with expressions of regret that he had to do this, that he did not want to be the instrument chosen therefor, and that Gibson was being laid off because work was slow. However, Gibson had not been reprimanded 6 The following employees also signed a set of three cards at Medwin's request after Medwin repeated to them substantially the same talk he gave Gibson: Edward Lyckowski, Hugh Grapes, John Bowden. Philip Lipscomb, Donald Richmond, and George Heflebower Roger Novrit also signed after being told by another employee that Medwin wanted this to be done 6I find that Stirt, who is secretary-treasurer and a business agent of Local 355, is an agent of said Union within the meaning of Section 2(13) of the Act 7 Malcolm Konner testified that this contract (his copy of which he had destroyed) was "canceled" and "nullified" on June 4 because on that d.ite the franchise of Malcolm Konner Chevrolet, Inc. at Pine Brook was teiminated and it stopped doing business As hereinafter narrated, I find that this contract has not been abrogated. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for his work at any time .8 Gibson was paid as wages 40 percent of the price charged to customers for his work. However, he was guaranteed a minimum weekly salary, regardless of whether it amounted to 40 percent or less of such charge. Sometimes he received the minimum salary although he had not performed enough work to meet this minimum ; but he also often produced more work than the minimum. On or about June 20, Medwin, a supervisor of Konner Chevrolet, Inc., asked employee Lyckowski if he had signed Gibson's petition .9 And on or about June 26 Malcolm Konner told Lyckowski that Gibson had 15 names on the petition and asked Lyckowski if he had signed it. Concluding Findings as to the Discharge of George F. Gibson In my opinion, Gibson was discharged for being the instigator and prime mover of (a) the movement to obtain a vote of employees on the collective -bargaining contract between Malcolm Konner Chevrolet, Inc., and the Union, and (b) the preparation and circulation of the petition to repudiate the Union as bargaining agent of the employees of Konner Chevrolet, Inc. I so find. I further find that the Union caused Konner Chevrolet, Inc., to effect such discharge. These conclusions are based upon the entire record, including the following facts, all of which I find: (a) Gibson was engaged in protected activity when, as steward, he constantly asked, and often insisted , that Stirt take a vote regarding the substantive provisions of the contract. (b) Gibson was active in attempting to dislodge the Union as bargaining repre- sentative after he and the employees became dissatisfied with it and thus became an instrument of antagonism to both the Union and Konner Chevrolet, Inc. (c) Gibson was the elected job steward of the employees, and, therefore, acted as spokesman and leader of the employees in fulfilling their wishes to correct distasteful provisions of the contract, especially with respect to insurance benefits. (d) Gibson was discharged precipitately and without prior warning. Moreover, I find that the reason given for his discharge, namely, slow work, was a pretext to conceal the fact that he was actually discharged for his protected activity. While it is true that Gibson did engage in some of the above-described activities while employed by Malcolm Konner Chevrolet, Inc., the evidence nevertheless dis- closes, and I find, the he also engaged in all of them after June 4 when he became an employee of Konner Chevrolet, Inc., and that Mitchell Konner and Supervisor Medwin knew of Gibson's petition by June 20. I further find that Stirt resented Gibson's attitude toward and actions against the Union and that Stirt not only sought to dissuade Gibson from them but also warned him that he would get into trouble on account thereof While there is no direct evidence that Stirt expressly asked for Gibson's dismissal, a reasonable inference may b_- drawn-and I draw it- that (1) Stirt's opposition to Gibson was the efficient cause for Gibson's discharge, (2) Mitchell Konner and Supervisor Medwin became aware of such opposition, and (3) Konner Chevrolet, Inc., discharged Gibson at the request of Stirt because of such opposition. In view of the foregoing findings I do not credit the evidence that Gibson was discharged because his performance was insufficient to justify his guaranteed weekly wage. It is therefore unnecessary to decide whether Gibson in fact produced enough to earn his guaranteed weekly wage. Accordingly, I find that Konner Chevrolet, Inc., has discharged Gibson unlawfully and that the Union has caused such discharge unlawfully. However, I do not find that Gibson was terminated because he filed charges with the Board. Although it may be suspicious, the mere fact that Gibson was let go 3 days after he filed charges is insufficient to show that such filing prompted his discharge . Hence I find that this branch of the complaint has not been established. 8 Although Malcolm Konner testified that both he and the service manager "constantly reprimanded Gibson for the type of work that he was doing," I do not credit this testi- mony Not only did the service manager fail to testify to corroborate this, but this was not assigned as the reason for his discharge by Service Manager John. In any event, I find that if his work was poor, it was overlooked by retaining him as an employee Malcolm also testified that Gibson was reprimanded as a chronic complainer over his pay- checks I make no finding thereon as it was not contended that these complaints moti- vated his discharge. 9Medwin also asked, on June 26 or within a few days before or thereafter , the follow- ing employees: Hugh Grapes , John Bowden , and Donald Richmond. On June 20, Mitchell Konner asked employee Richmond the same question MALCOLM KONNER CHEVROLET, INC., ETC. 547 C. The alleged unlawful assistance to and recognition of Local 355 1. As to Malcolm Konner Chevrolet, Inc. As found above, in May 1962, Supervisor Joe Medwin solicited membership in Local 355. This is found to be coercive, even though Medwm told employees that, they did not have to have a union unless they wanted one. The vice of such conduct lies in the active solicitation of individual employees in Medwin's office; it is not obliterated by the statement that they were not required to have a union. Hence I find that it also constitutes unlawful assistance to the Union. Since Medwin interviewed all or nearly all of the employees in the shop, and these employees consti- tute more than a majority of a unit composed of shop workers and salesmen,10 I- find that any majority which Local 355 may represent is a coerced majority, and that such coercion existed on June 1, 1962. I also find that Malcolm Konner Chevrolet, Inc., and Local 355 executed a collective-bargaining contract on June 1, 1962, covering a unit consisting of "all shop workers and salesmen excluding office and all others excluded under the Labor-Management Reporting and Disclosure Act," and containing a union-shop clause. Although Malcolm Konner testified that he destroyed this contract on June 4 because Malcolm Konner Chevrolet, Inc., on that date ceased operations, I find that such contract continued in existence, and that Malcolm Konner Chevrolet Corp., as the successor to Malcolm Konner Chevro- let, Inc., became a party thereto. This finding flows from the fact that Local 355 has not repudiated the contract and that a unilateral rescission is ineffective to- terminate the contract.il New England Lead Burning Company, 133 NLRB 863. This contract contains a union-security and a checkoff clause. But I find that these clauses are illegal and are not saved by the proviso to Section 8(a) (3) because I find that the Union obtained its majority by employer assistance "defined in Sec- tion 8(a) of this Act as an unfair labor practice." See Section 8(a) (3). However, no evidence was adduced to show that any fees or dues were collected thereunder. Accordingly, I find that the evidence fails to establish that the checkoff clause was enforced. 2. As to Konner Chevrolet, Inc. On June 30 Konner Chevrolet, Inc., and Local 355 executed two collective- bargaining contracts. One covered "all salesmen" and the other embraced "all shop workers." The General Counsel's complaint does not attack the latter con- tract, so that I make no findings with respect thereto. While the "all salesmen" contract is assailed as illegal because it contains a union-shop clause when the Union did not enjoy an uncoerced majority, the evidence offered fails to show such facts. Since the burden of proof on this issue rests on the General Counsel, I find that he has failed to sustain it. Accordingly, I find that those paragraphs of the complaint attacking this contract must fail for want of proof. There is credible evidence from employee Eugene Rudin that late in May, Phil Barish, sales manager for Konner Chevrolet, Inc., asked him to sign an application card for membership in Local 355, and that Barish was doing this "to keep the Teamsters' Union out." There is also credible evidence from employee Buster Ledell that early in May, Barish told him that he had to sign the hospitalization and united welfare fund applications forms of Local 355, and that "when we moved to Caldwell I [Ledell] would join the union when I come up there." I find this evidence, which I credit, falls short of estab- lishing a coerced majority. But it does show-and I find-unlawful solicitation for and assistance to the Union. The General Counsel also alleges that since June 4 Konner Chevrolet, Inc., has adopted, maintained in effect, and enforced the contract of June 1 between Malcolm Konner Chevrolet, Inc., and Local 355. As I have found that Konner Chevrolet, Inc., is not integrated with or a successor to Malcolm Konner Chevrolet, Inc., it is incumbent on the General Counsel to show affirmatively that Konner Chevrolet, Inc., adopted, maintained in effect, and enforced this contract. But no such evidence has been adduced. Hence I find that this aspect of the complaint has not been sustained. 10 There were about 14 shop workers and 5 or 6 salesmen employed in this unit. u The terms of this contract are substantially set forth in General Counsel's Exhibit No. 3, a contract between "Konner Chevrolet" and Local 355, which I find was given by Stirt to Gibson as a copy containing the terms of the contract between Local 355 and, Malcolm Konner Chevrolet, Inc. 708-006-64-vol. 141-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Other alleged violations 1. As found above: (a) Supervisor Joe Medwin and President Malcolm Konner interrogated em- ployees of Malcolm Konner Chevrolet , Inc., as to whether they had signed or cir- culated a petition stating that they did not wish to be represented by Local 355. (b) Joe Medwin solicited the employees of Malcolm Konner Chevrolet, Inc., to execute applications for membership in Local 355, for hospitalization, and for united welfare fund, on behalf of Local 355. (c) President Mitchell Konner of Konner Chevrolet, Inc., on June 20 asked em- ployee Richmond whether Richmond has signed Gibson's petition, and Supervisor Barish of said Respondent solicited on behalf of Local 355. 2. Concluding findings as to the other alleged violations a. As to interrogation Although interrogation may be unobjectionable when pursued for a lawful objec- tive, none of the facts found herein discloses that the questioning of employees by Medwin and Malcolm Konner and Mitchell Konner sought information for a legiti- mate purpose. Rather it is patent that employees were interrogated to ascertain the extent of dissatisfiaction with a union which had received the blessings of Malcolm and Mitchell Konner. Such interrogation is coercive and is barred by Section 8 (a)(1). I so find. Orkin Exterminating Company, Inc., 136 NLRB 399; S. H. Kress & Co., 137 NLRB 1244. N.L.R.B. v. Crystal Laundry & Dry Cleaning Co., 308 F. 2d 626 (C.A. 6), is clearly distinguishable. It is no defense that some employees so interrogated denied signing the petition; the blemish of such conduct emanates from the act of propounding the questions, regardless of the reply or reaction thereto. b. As to assistance to Local 355 By handing out the sets of three cards to employees, Respondent Malcolm Konner Chevrolet, Inc., unlawfully assisted Local 355. Since this conduct is alleged to violate Section 8(a)(1) only, and not Section 8(a)(2), of the Act, I find that it interferes with, restrains, and coerces employees contrary to the provision of said Section 8 (a) (1). But I make no finding as to whether it also is forbidden by Section 8(a)(2). This conclusion is not undermined by the employer 's accompanying state- ment that the employees were free to join the Union or not. In my opinion it is unlawful for an employer to actively solicit membership upon behalf of a union ex- cept as permitted by Sections 8(a)(3) and 302(c)(4). Neither of these sections is operative on this record. See Salmirs Oil Company, 139 NLRB 25. And regardless of the content of the interviews , an important consideration is the fact that they were held in the office of top management. Revere Copper and Brass, Inc., 138 NLRB 1377. And I also find that Konner Chevrolet, Inc., unlawfully solicited employees to join Local 355 or to subscribe to the Union's insurance program by the conduct of Supervisor Barish. Although a violation of Section 8(a)(1) and (2), I do not find the latter because not pleaded. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondents which have been found to be unlawful set forth in section III, above , occurring in connection with the operations of Respondent Com- panies as set forth above 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 It having been found that each Respondent has engaged in certain unfair labor practices it will be recommended that each of them cease and desist therefrom and that each take specific affirmative action, as set forth below, designed to effectuate the relevant policies of the Act. Having found that Respondent Malcolm Konner Chevrolet, Inc., has rendered illegal assistance to the Union and, at a time when this corporation knew that the Union's majority was coerced, entered into an illegal contract containing an illegal union-shop provision, it will be recommended that said contract be denied any force or effect and that said Company withhold recognition from the Union unless and until the Union has been certified by the Board. Although I have found that Malcolm Konner Chevrolet, Inc., entered into an illegal contract containing a union-shop clause and a checkoff clause, I am unable MALCOLM KONNER CHEVROLET, INC., ETC. 549 to find that either clause was enforced . Hence, it will not be recommended that employees be reimbursed for initiation fees or dues. Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. v. N.L.R.B., 365 U.S. 651. Cf. Galveston Maritime Association, Inc.; et al., 139 NLRB 352. It will be further recommended that Konner Chevrolet, Inc., offer, and that the Union withdraw opposition to, immediate and full reinstatement to George F. Gibson to his former position or one substantially equivalent thereto, and that they jointly and severally make him whole for any loss of earnings suffered by his discriminatory discharge by paying to him a sum of money for such loss. Said sum shall be equal to such earnings as he would have earned as wages from the date of the discrimina- tion against him to the date of reinstatement, or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Computation thereof shall be calculated on a quarterly basis in accordance with F. W. Woolworth Com- pany, 90 NLRB 289. The backpay obligations of these Respondents shall include the payment of interest at 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that these Respondents preserve and, upon request, make available to the Board or its agents, all pertinent records and data necessary to assist in any analysis and deter- mination of the amount of backpay due. Since the discharge of Gibson goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), it will be recommended that the remedy against Konner Chevrolet, Inc., and the Union be coextensive with the legislative objectives promulgated in Section 7 of the Act. Hence, a broad order will be recommended against these Respondents. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondents, Malcolm Konner Chevrolet, Inc., and Konner Chevrolet, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Malcolm Konner Chevrolet Corp. is a successor to Malcolm Konner Chevrolet, Inc. 4. By coercively interrogating its employees concerning their having signed or circulated a petition stating they did not wish to be represented by the Union, Re- spondents Malcolm Konner Chevrolet, Inc., and Konner Chevrolet , Inc., have en- gaged in conduct proscribed by Section 8(a) (1) of the Act. 5. By illegally discharging George F. Gibson for opposing the Union , Respond- ent Konner Chevrolet, Inc., has unlawfully encouraged membership in a labor or- ganization, contrary to the provisions of Section 8 (a) (1) and (3) of the Act. 6. By rendering illegal assistance to the Union, and by recognizing , and entering into, maintaining, and giving effect to an illegal contract with the Union , Respondent, Malcolm Konner Chevrolet, Inc., has engaged in and is engaging in conduct forbid- den by Section 8 (a) (1) and (2) of the Act. 7. By obtaining recognition and a collective -bargaining contract when it did not enjoy an uncoerced majority, by enforcing the terms of said contract, and by -causing Konner Chevrolet, Inc., to discharge George F . Gibson in violation of Section 8(a)(3) of the Act, the Union has engaged in and is engaging in conduct forbidden by Section 8(b) (1) (A) and (2) of the Act. 8. By rendering illegal assistance to Local 355 in soliciting membership on its behalf. Konner Chevrolet has engaged in conduct forbidden by Section 8(a)(1) of the Act. 9. The aforesaid conduct constitutes unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 10. Respondents have not committed any other unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , it is recommended that: A. Respondent Malcolm Konner Chevrolet, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their having signed or circulated a petition stating that they did not wish to be represented by Local 355. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Urging and soliciting its employees to execute application cards for member- ship in, and hospitalization insurance cards on behalf of, Local 355, and to join Local 355, or in any other manner offering illegal assistance and support to it or encouraging its members to join it. (c) Maintaining in effect and enforcing its contract of June 1, 1962, with Local 355, or any modification, supplement, renewal, or extension thereof. (d) Recognizing or bargaining with Local 355 as the collective-bargaining agent of its shop workers and salesmen unless and until such labor organization has been duly certified by the National Labor Relations Board as the exclusive representative. of said employees. (e) In any like or related manner interfering with, restraining, or coercing its, employees in exercising rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Paramus, New Jersey, copies of the attached notice marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being signed by a duly authorized repre- sentative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Withdraw recognition from Local 355 as the exclusive bargaining agent of its salesmen and shop workers unless and until said labor organization shall have been certified by the Board as the exclusive representative of such employees. (c) Notify the Regional Director for the Twenty-second Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recom- mended Order, what steps Respondent has taken to comply herewith.13 B. Respondent Konner Chevrolet, Inc., its officers, agents, successors, and assigns,. shall: 1. Cease and desist from: (a) Interrogating employees concerning their having signed or circulated a petition stating that they do not wish to be represented by Local 355. (b) Encouraging membership in Local 355, or in any other labor organization,. by discharging employees or discriminating against employees in any manner in respect to their tenure of employment or any term or condition of employment. (c) Unlawfully aiding or assisting Local 355 by soliciting membership on its- behalf. (d) In any other manner restraining, coercing, or interfering with employees in the enjoyment or exercise of rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer George F. Gibson immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and jointly and severally with the Union, make him whole for any loss of pay he may have suffered, plus interest at the rate of 6 percent, by reason of Respondent's discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for- examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in Caldwell, New Jersey, copies of the attached notice marked "Appendix B." 14 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being signed by a duly authorized repre- sentative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps 12 If this Recommended Order is adopted by the Board, the words "A Decision and' Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the wards "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 11 If this Recommended Order is adopted by the Board, this provision shall be modified- to read: "Notify said Regional Director, in writing, within 10 days from the date of this- Order, what steps Respondent has taken to comply herewith " 14 See footnote 12, supra. MALCOLM KONNER CHEVROLET, INC., ETC. 551 shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-second Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith.15 C. Respondent Local 355, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Konner Chevrolet, Inc., to discriminate against employees in violation of Section 8(a) (3) of the Act in order to encourage member- ship in said Local 355. (b) Enforcing or maintaining in effect its collective-bargaining contract, or any supplement, extension to, or modification of, said contract, with Malcolm Konner Chevrolet, Inc., and any successor to Malcolm Konner Chevrolet, Inc. (c) Claiming recognition from, or asserting that it is the exclusive bargaining agent of the employees of, Malcolm Konner Chevrolet, Inc., and any successor thereto, unless and until it shall have been certified by the Board as such representative. (d) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and meeting halls in Jackson Heights, New York, copies of the attached notice, marked "Appendix C." 16 Copies of said notice, to be supplied by the Regional Director for the Twenty-second Region, shall, after being signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify Konner Chevrolet, Inc., that it has no objection to the employment of George F. Gibson. (c) Jointly and severally with Konner Chevrolet, Inc., reimburse George F. Gibson for any loss of pay he may have suffered, plus interest at the rate of 6 percent, by reason of the discrimination against him caused by Local 355. (d) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all records necessary to analyze the amount of backpay payable under the terms of this Recommended Order. (e) Notify the Regional Director for the Twenty-second Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith.17 It is further recommended that the complaint be dismissed in all other respects. It is finally recommended that unless each Respondent shall within the prescribed period notify the said Regional Director that it will comply, the Board issue an order requiring any Respondent who fails to do so to take the action aforesaid ap- plicable to such Respondent. is See footnote 13, supra. 10 See footnote 12, supra. 37 See footnote 13, supra APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT coercively interrogate employees concerning their having signed or circulated a petition stating that they did not wish to be represented by Amalgamated Local Union 355. WE WILL withdraw and withhold all recognition from Amalgamated Local Union 355 as a collective-bargaining representative of all our employees in- cluded in the following described unit: All shopworkers and salesmen, excluding office and all others excluded under the Labor-Management Reporting and Disclosure Act. WE WILL NOT recognize said labor organization as such representative unless and until so certified by the National Labor Relations Board. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT give any force or effect to that agreement signed with said Local 355, dated June 1, 1962, or to any modification, extension, renewal, or supple- ment thereto. WE WILL NOT encourage membership in Amalgamated Local Union 355 by soliciting on its behalf, by recognizing or entering into an agreement with said Local 355 until so certified, or in any other manner prohibited by law. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, 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 organiza- tion as a condition of employment, as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization. MALCOLM KONNER CHEVROLET, INC., 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, 614 Na- tional Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 NOT coercively interrogate employees concerning their having signed or circulated a petition stating that they did not wish to be represented by Amalgamated Local Union 355. WE WILL NOT encourage membership in said Local 355 by illegally discharg- ing employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, or by soliciting on its behalf. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL offer George F. Gibson immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL jointly and severally with Amalgamated Local Union 355 make George F. Gibson whole for any loss of pay, plus interest, suffered by reason of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization. KONNER CHEVROLET, INC, Employer. Dated------------------- By------------------------------------------- (Repiesentative) (Title) NOTE: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. CLARK'S FROZEN CUSTARD, INC., ETC. 553 APPENDIX C NOTICE TO ALL MEMBERS OF AMALGAMATED LOCAL UNION 355 AND TO THE EM PLOYEES OF MALCOLM KONNER CHEVROLET, INC., AND KONNER CHEVROLET, INC. Pursuant to the Recommended Order of a Trial Examiner 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 NOT act as or claim to be the exclusive bargaining representative of any of the salesmen or shop employees of Malcolm Konner Chevrolet, Inc., for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until we have been certified by the Board as such representative. WE WILL NOT give any force or effect to the agreements signed with said Local 355, by Malcolm Konner Chevrolet, Inc., on June 1, 1962, and by Konner Chevrolet, Inc., on June 30, 1962, or to any modifications, extensions, renewals,. or supplements thereto. WE WILL NOT cause or attempt to cause Konner Chevrolet, Inc., to discharge or to in any way discriminate against George F. Gibson, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL notify Konner Chevrolet, Inc., in writing, that we withdraw our objections to the employment of George F. Gibson and request his reinstate- ment to his former or to an equivalent position. WE WILL jointly and severally with Konner Chevrolet, Inc., make whole George F. Gibson for any loss of pay suffered as a result of the discrimination against him, plus interest. WE WILL NOT in any other manner restrain or coerce employees of Malcolm Konner Chevrolet, Inc., and Konner Chevrolet, Inc., in the exercise of the rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AMALGAMATED LOCAL UNION 355, Labor Organization. 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, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Clark's Frozen Custard, Inc.; Dutchland Dairy Stores, Inc.; Clark's Dairy Stores, Inc.; Tosa Avenue Dairy Store, Inc.; Howell Avenue Dairy Store, Inc.; Lincoln Avenue Dairy Store, Inc.; Hales Corners Dairy Store, Inc. and Retail Store Em- ployees Union Local #444, Retail Clerks International Asso- ciation, AFL-CIO. Case No. 13-CA-5133. March 18, 1963 DECISION AND ORDER On January 14, 1963, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate 141 NLRB No. 51.