Nelson Chevrolet Co.

NELSON CHEVROLET COMPANY 829 1. Cease and desist from: (a) Discouraging membership of any of its employees in General Truck Drivers, Warehousemen & Helpers Union, Local 980, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or any other labor orga- nization of its employees by discharging employees for engaging in union or other protected concerted activities or in any other manner discriminating against any individual in regard to his hire or tenure of employment or terms or conditions of employment except as authorized by Section 8(a)(3) of the Act. (b) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights are to be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find necessary to effectuate the policies of the Act: (a) Offer Jerry Schroeder and Peter McReynolds immediate and full reinstatement to substantially equivalent positions which may be available at other plants owned or operated by Respondent and make them whole for any loss of pay each may have suffered by reason of the discrimination against him in the manner provided above in the section entitled "The Remedy " (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 an analysis of the backpay due (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt by Respondent of a copy of this Decision, what steps Respondent has taken to comply therewith.9 It is further recommended that unless on or before 20 days from the date of its receipt of this Trial Examiner's Decision Respondent notifies the Regional Director that it will comply with the foregoing recommendations, the National Labor Rela- tions Board issue an order requiring Respondent to take the action aforesaid. 0In the event that this Recommended Order is adopted by the Board, paragraph 2(d) thereof shall be modified to read: "Notify said Regional Director, in wilting, within 10 days from the date of this Order what steps Respondent has taken to comply therewith " Nelson Chevrolet Company and Automobile Salesmen & Misc. Workers Union Local No. 192 .1 Case No. 13-CA-6643. Janru- ary 17, 1966 DECISION AND ORDER On June 11, 1965, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- i The name of the Charging Party, as designated in the charge and thereafter in the formal papers filed in this case , included "AFL-CIO " The circumstances which make the AFL-CIO affiliation no longer an appropriate part of the Union's title are set out hereinafter . Accordingly, the caption is amended to delete any indication of affiliation, and references to the Union hereafter will exclude the AFL-CIO designation. 156 NLRB No. 88. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iner's Decision. On August 25,1965, the parties filed with the National Labor Relations Board a stipulation of facts pertaining to the status of the Charging Party as a labor organization. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and also filed a motion to dismiss the complaint on the ground of moot- ness, attaching certain affidavits. The General Counsel filed an answer to the motion, also attaching an affidavit, and a brief in support of the Trial Examiner's Decision. 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 Trial Examiner's Decision, the Respondent's exceptions, the General Coun- sel's brief, the stipulation of facts, the motion, answer, and affidavits thereto, and the entire record in this case, and hereby adopts only those findings, conclusions, and recommendations of the Trial Exam- iner specified below. 1. The Charging Party was established in the early months of 1964 for the primary purpose of organizing automobile salesmen in the city of Chicago. Deeming it important to secure an affiliation with the AFL-CIO, Merlin W. Griffith and the other four organizers of the local sought an affiliation from several AFL-CIO internationals and, on March 20, 1964, were finally granted a charter by the Distillery, Rectifying, Wine and Allied Workers International Union of America, AFL-CIO. The organizers then adopted a constitution for the local, had authorization cards printed which proclaimed the affiliation with the Distillery Workers, and set about enrolling automobile salesmen in the Union. The Respondent was one of the firms whose employees the solicitors undertook to organize. By August 17, 1964, the Union had obtained signed cards from a majority of Respondent 's salesmen. The Union immediately notified Respondent of this fact and demanded bargaining, but Respondent refused to concede that the Union enjoyed the status of bargaining representative of the salesmen. The Union filed a charge against the Respondent and, after a hearing, the Trial Examiner concluded that Respondent had violated its duty to bargain with the Union. He recommended that this delinquency be remedied by issuance of a bargaining order running in favor of the Union. As noted, Respondent has excepted to the Trial Examiner's findings and recommendations, and has also filed a motion to dismiss, alleging that subsequent developments have rendered the Union defunct and, con- sequently, this proceeding moot. The facts upon which Respondent founds its motion are set out in a stipulation entered into by the parties, and in the affidavits sub- mitted with Respondent's motion and General Counsel's answer thereto. The stipulation establishes, in brief, that after a hearing by NELSON CHEVROLET COMPANY 831 a trial board of the Distillery Workers International,2 which recom- mended dissolution of the local, an appeal from such recommendation by the Charging Party, and a denial of that appeal by the general executive board of the International, the charter issued by the Inter- national to the Charging Party was finally revoked on August 3, 1965, because of financial irregularities 3 and disregard of obligations to the International. An affidavit by Merlin Griffith, the chief organizer of the Union, shows that during the pendency of the appeal, Griffith, the other four local officials, and two unidentified rank-and-file mem- bers held a meeting at which, among other things, they discussed the revocation of the charter and voted to reconstitute the local into an independent unaffiliated union. The affidavit makes it apparent that Griffith made only the most cursory efforts to inform the rest of the membership about the meeting, and none of Respondent's salesmen were notified. Subsequently, Griffith wrote Respondent and other employers that the membership had voted to continue operating as an independent union despite the loss of affiliation. Griffith's testimony at the hearing in this case 4 indicates that he considered affiliation with an AFL-CIO parent to be important to the success of his fledgling organization, and that he did not begin his membership drive until he had secured such an affiliation. The record shows that the authorization cards used by the organizers to enlist members expressly held out the local as an affiliate of the Dis- tillery Workers International Union. Furthermore, the constitution of the local provided for a substantial amount of interaction between the subordinate and superior bodies, including assistance to, and supervision over, the local by the International. It seems clear to us that the involuntary loss of affiliation with the Distillery Workers, having, as it did, a significant impact on the structure and potential of the local organization, had an equally significant effect on the expecta- tions reasonably harbored by employees who had signed cards for an AFL-CIO affiliate. As we have noted, these employees were not afforded an opportunity to express their preference as to whether they wished to have the local continue to act as their representative despite the substantial change wrought by the charter revocation. In these circumstances, we believe that the authorization cards executed by the employees cannot be considered to be reliable designa- tions of the employees' choice of the Union in its present independent Prior thereto, on October 15 , 1964, the International imposed a trusteeship on the Charging Party which was enforced by a preliminary injunction issued March 3, 1965, by the U S . District Court for the Northern District of Illinois ( Eastern Division) 3 The trial board specifically noted, however , that no evidence of dishonesty , fraud, or theft had been adduced. * Much of the testimony relating to the status of the Charging Party as a labor orga- nization was taken in a companion case, Gateway Chevrolet Sales, Inc., 156 NLRB 856, issued simultaneously herewith, and , by stipulation of the parties , was received in evidence In this proceeding. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status as their bargaining representative. Accordingly, we reject the Trial Examiner's findings of a violation of Section 8(a) (5) of the National Labor Relations Act, as amended, and dismiss this allegation of the complaint .r3 2. The Trial Examiner also concluded that Respondent had inter- rogated and threatened its employees in violation of 8(a) (1), as charged in the complaint. These findings are supported by the evidence and are hereby affirmed. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : (1) Omit subparagraphs 1(a) and 2(a) and reletter the remaining subparagraphs consecutively; (2) omit the first indented paragraph from the attached notice; (3) omit "AFL-CIO" from the fourth full indented paragraph of the attached notice; and dismissed the complaint insofar as it alleged that the Respondent violated Section 8 (a) (5) of the Act.] 5 In the circumstances of this case, we deem It unnecessary to decide whether the Re- spondent violated 8(a)(5) In withholding recognition from and refusing to bargain with Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, on or after Au- gust 17, 1964, as alleged in the complaint That Union no longer exists and can, of course, no longer press its representation claim herein For reasons already indicated, we would not, even were we to find a violation, deem it effectuative of the policies of the Act to issue a bargaining order running to the Union as it is now constituted. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This is a companion case to Gateway Chevrolet Sales, Inc., Case No 13-CA-6644, which was heard immediately preceding the instant case, and which is the subject of a Decision issued this date As in Gateway, the basic issue presented is whether the employer violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Charging Party-the Union involved in both cases-as the exclusive representative of its employees in an appropriate bargaining unit. Another issue presented is whether Respondent independently violated 8 (a) (1) by certain acts of interference, restraint, and coercion.' The instant case was heard before Trial Examiner Samuel M. Singer at Chicago, Illinois, on December 9 and 10,2 pursuant to a charge filed August 27 and a com- plaint issued October 19. All parties were represented by the same counsel as in Gateway. Full opportunity to be heard, and to examine and cross-examine witnesses was afforded all parties. Respondent and General Counsel filed briefs. Upon the entire record 3 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, with its principal office and place of business in Chicago, Illinois, is engaged in selling and servicing automobiles. During the past 1In view of the admittedly close similarity between this case and Gateway and the frequent references in the record, briefs, and decision herein to that case, a copy of my decision in Gateway is appended to this Decision 2 All date references are to 1964, unless otherwise indicated. 3 By stipulation of the parties, the record in this case includes all testimony received In Gateway relating to the question whether the Charging Party is a genuine labor orga- nization with which Respondent was legally obligated to bargain. By order dated Decem- ber 24, I granted Respondent's motion (made after the close of the hearing) to introduce Into the record two exhibits (Respondent's Exhibits Nos. 3 and 4). On April 13, 1965, I Issued an order correcting certain errors in the transcript. NELSON CHEVROLET COMPANY 833 year, a representative period, Respondent received automobiles and automobile parts valued in excess of $50,000 directly from points outside Illinois. During the same year, Respondent had a gross volume of business from sales and servicing of automo- biles in excess of $500,000. I find that at all times material herein, Respondent has been engaged in and is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED For reasons hereafter stated, I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's work force Respondent is a new- and used-car dealer. Eugene Garrett is president of the Company. During the period here involved Respondent employed five new- and used-car salesmen: Frank Marino, Lynn Crafts, Milton (Jack) Dunse, Frank Thomas, and Robert Gariett.4 Anthony Unruh, its truck specialist or truck manager, spent about 75 percent of his time selling trucks and the balance to managerial func- tions such as appraising used trucks for trade-in purposes and ordering new trucks. Two other men (Delia and lussa) described by Company President Garrett as assistant new-car managers, also sold automobiles in addition to performing mana- gerial functions. The answer admits that all automobile salesmen, "including the truck sales manager," constitute a unit appropriate for collective-bargaining purposes. B. The organizational campaign In August, salesman Marino conferred with two union representatives who gave him membership application cards to distribute among the salesmen. The men told Marino that the cards were "to get us recognized with the employer and that they would negotiate for us if we wanted better working conditions." Marino then solicited signatures of other salesmen Dunse, Unruh, Robert Garrett, and Marino signed membership application cards on August 14; Crafts on August 17.5 Delia also signed a card, but 2 hours later asked to have it back. The cards read: I hereby petition for and accept membership in the Automobile Salesmen & Misc. Workers Union Local No. 192 and authorize said Union to represent me and act in my behalf to negotiate and conclude any and all agreements as to wages, hours and other conditions of employment. This authority to act for me supersedes and cancels any authority heretofore given to any person or orga- nization to represent me. I agree to be bound by the Constitution and By-Laws and rules and regulations of the Union and any contracts that may be in exist- ence at the time of this application or that may be later negotiated by the Union. Marino testified that at the time he gave the membership application card to Crafts, "I did tell him that that was for an election. It was for membership for the Automo- bile Salesmen & Misc. Workers Union Local No. 192 " He also testified, "I think, I had said to him that if we had 51 percent of the men. we did not need an election there." Marino asked Crafts to "read the card" before signing it In soliciting Dunse's signature, Marino told Dunse that "if we had the men, we got the men signed up here to join the union, that we could have representation. And that we would get an election at Nelson Chevrolet to have a union there." To Rob- ert Garrett he said, "this union card was for membership into the union and that if we had 51 percent of the men that signed the cards that we would be union and there was no need for an election." According to Marino, he told Unruh to "make sure he read it" and Unruh signed after stating "he understood it and he wanted it." 6 4 Robert Garrett Is Company President Eugene Garrett's brother 6 In addition to signing his card , each salesman completed other information on it In his own writing concerning residence, date of birth, and occupation 6 Marino impressed me as an honest, trustworthy witness who testified forthrightly In accordance with his best recollection It is noted that Marino is no longer employed by Respondent and appears to be disinterested. I credit his testimony. To the extent that the testimony of other employees about card solicitation may be inconsistent with that of Marino, I credit Marino. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Union's recognition and bargaining demands By letter dated August 17, the Union informed Respondent that "a substantial majority of [its] salsmen have designated" it as their collective-bargaining represent- ative and as "proof" thereof it enclosed the signed authorization cards of Marino, Crafts, Dunse, Unruh, and Robert Garrett. The Union also requested a meeting "to commence ... collective bargaining with respect to wages, hours, and conditions of employment." On August 19 Company President Garrett, rejecting the Union's request, wrote the Union that Respondent "does not believe you represent a majority of our salesmen as their collective-bargaining representative, and therefore, respect- fully refer you to the National Labor Relations Board, which we understand employs procedures for elections." On September 1 Respondent filed a petition for a representation election which was dismissed by the Regional Director on October 28, in view of the pendency of the instant complaint proceeding.? On September 4 the Union, by telegram, renewed its demand for bargaining. Shortly thereafter, union representatives visited Respond- ent's premises and personally requested Company President Garrett for recognition and baigaining. The answer admits that the Union has on and since August 17 requested Respond- ent to bargain; and that Respondent since August 19 has refused and continues to refuse to recognize and bargain with the Union. On September 22 or 23 the Union began to picket Respondent's premises. Four salesmen (Marino, Crafts, Dunse, and Robert Garrett) stopped working during the picketing. D Respondent's alleged interrogations and threats 1. Interrogation Respondent received the Union's first recognition and bargaining request, with its five enclosed authorization cards, on August 18. On the same day, Company Presi- dent Garrett questioned each card signer-first Marino, Dunse, and Robert Garrett (his brother) in a group, and then Crafts and Unruh each separately. All admitted signing the union cards When Garrett remarked to the first three, "I understand that you men want a union here," they all said they did. When Garrett said he did not think they needed a union, Marino replied, "We wanted the union for protection for ourselves so that [Respondent] would not change the pay plan anytime [it] felt like that," 8 and in order to insure "some kind of pay check in our hands" after work .9 Dunse and Robert Garrett admitted telling President Garrett that when they signed the cards, they "thought" they were signing for an election. President Garrett told Dunse, "Well, you signed the card, you are in the union now." Dunse replied, "I guess I am." To his brother Robert, Garrett remarked, "I think you told me that you did not sign a card." 10 Robert responded by offering to quit "if it was his wish." Crafts credibly testified that when he admitted that he had signed a union card, Garrett told him, "You of all people. I cannot understand you signing a union card." He further testified that in another conversation the next day he told Garrett that he regretted not joining the Union "6 months sooner." Crafts admitted telling Garrett in this conversation that he had signed his card "with the impression that it was for a vote . Unruh testified that Company President Garrett walked into his office with Unruh's card in his hand and said, "I see you joined the union." Unruh replied, "Well, the boys, they asked me to express my opinion and I did." According to Unruh, Garrett told him 2 days later, "Well, since you want to be a member of the union or belong to the union, you are more or less considered a retail man, you should have your deals okayed by [Sales Manager] Les Garrett," and Unruh said he would. 2. Threats Company President Garrett had mentioned to his brother, Robert, the possibility of selling the Company about 21/2 years earlier. The subject of selling the business 7 The charges in the instant case were filed August 27. 8 The record Indicates that during the previous "slow" winter months , Respondent dis- continued a flat $50 weekly "salary " it had therefore paid its salesmen in addition to, commissions , leaving them only on a commission basis Robert Garrett also indicated that the employees' dissatisfaction with this was one of the reasons they wanted a union. 6 These foregoing findings are based mainly on the credited testimony of Marino. 10 Robert testified that be had assured his brother prior to Respondent 's receipt of the Union's August 17 letter that he had not signed a card NELSON CHEVROLET COMPANY 835 came up in June again, after union representatives passed out literature. At a meet- ing with salesmen, Garrett stated that "before the union would come into Nelson Chevrolet that Nelson Chevrolet would be sold." Garrett said he did not want to be "the first" dealer to go union 11 Around August 23 President Gariett talked to Marino in the garage area behind the showroom. Garrett told him that "before he would see Nelson Chevrolet become union, he would sell it." 12 E. Conclusions respecting Respondent's refusal to recognize and bargain with the Union 1. As found, five of Respondent's automobile salesmen-a majority of the employ- ees in the appropriate unit-signed cards on August 14 and 17 authorizing the Union to represent and bargain for them.13 On August 17 the Union requested Respondent to recognize and bargain with it. Respondent rejected this request on August 19, stat- ing that it "does not believe" that the Union represented a majority of its salesmen. On September 4 the Union repeated its request but to no avail. 2. In it brief, Respondent requests that its "argument" in the companion case- Gateway Chevrolet-be "incorporated herein" "in view of the similarity between the two cases " In Gateway, the employer sought to justify its refusal to recognize and bargain with the Union upon the grounds that: (a) it was entitled to determination of the Union's majority status through a Board-conducted election; (b) the authoriza- tion cards obtained by the Union did not evidence the employees' choice of bargain- ing representative; (c) the Union never made a clear and unequivocal bargaining demand; (d) the automobile salesmen were not employees, but independent con- tractors beyond the Act's protection" and (e) the Union (Local 192) was a "cor- rupt" and "amoral" organization, not a genuine labor organization entitled to the benefits of the statute. Contentions (c) and (d)-relating to the validity of the Union's bargaining demand and the status of the salesmen as employees-are not, in fact, involved in the instant case. As previously stated, Respondent, here in its answer, admitted that the Union has on and since August 17 requested bargaining and that Respondent has since August 19 refused to bargain with the Union. Similarly, in its answer Respondent admitted that all of its automobile salesmen (including the truck sales manager) comprise an appropriate unit for collective-bargaining purposes. Independently of n These findings are based on the composite mutually corroborative testimony of Marino, Crafts, and Robert Garrett. Marino also quoted President Garrett as telling the employees that "we should investigate this union before we do anything with it be- cause they have a shady background." He testified further that the meeting was called by management "just . . . for union purposes only because membership cards were passed out." z9 The above finding is based on the testimony of Marino, who, as earlier noted, was a credible and trustworthy witness. The statement attributed to Garrett conforms to the pattern of his other remarks. Denying that he intended "to sell out on account of the union's coming in," Garrett admitted he "might have said" to employees, as he told a Board investigator in his prehearing affidavit, that it "might not bother" him "if they went union because I might not be in the automobile business much longer," since "for the last 6 months, I have been intending to go in the insurance business and I have been trying to sell out " Garrett also stated in his prehearing affidavit that the Company had been "for sale . . . the past 6 months," that this "has been no secret," and that Marino knew it. "Four of the five card signers were full-time automobile salesmen; the fifth (Unruh) was the truck manager. Since the latter devotes a considerable amount of time to selling (duties within the scope of the unit), he has a sufficient community of interest to be included in the unit. See, Weaver-Beatty Motor Co , 112 NLRB 60, 62-63. Moreover, Respondent admitted in its answer that the truck sales manager was part of the unit. There is evidences that Respondent's two assistant car managers (Delia and lussa) are also engaged in selling as well as managerial functions In its brief, Respondent takes no position with respect to the status of these two individuals. (As to the truck man- ager, it observes that "Whether [he] may be considered a salesman rather than a part of management is open to question.") It lists as its salesmen in August only the four full-time salesmen who signed union cards (Marino, Dunse, Crafts, and Robert Garrett). On the basis of the entire record, I find that Respondent had signed union cards from a majority of its employees in the appropriate unit regardless of whether the two assist- ant managers are included in the unit. If included, the Union had cards from five of Respondent's eight employees: if excluded, it had cards from five of its six employees. 217-919-66-vol. 156-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these admissions, the record amply supports the finding that here, no less than in Gateway, the Union made proper and valid bargaining demands. And there is noth- ing here to indicate that the ielationship between Respondent and its salesmen is any- thing other than the ordinary employer-employee relationship found in similar Board cases 3. For reasons stated in Gateway, 1 reject Respondent's contention that the Union (Local 192) is not a labor organization within the meaning of the Act. Based on the Board's decisions in Alto Plastics Manufacturing Corporation, 136 NLRB 850, and Edward Fields, incorporated, 141 NLRB 1183, 1 adhere to my rulings at the hearing (as in Gateway) that the question whether Local 192 is a corrupt or amoral organiza- tion is not germane to determination of whether it is a labor organization within the meaning of the statute. For the same reasons, I cannot recommend that the Board decline to issue a bargaining older to remedy Respondent's unlawful refusal to bargain. 4. The employer's contention in Gateway that the authorization cards did not evidence selection of the Union as bargaining repiesentative, was grounded on the claim that the Union has "misrepiesented its city-wide status." Here, on the other hand, Respondent's contention is predicated on its position that the "salesmen signed cards to secure an election." (Respondent's brief, p. 3.) In Englewood Lumber Company, 130 NLRB 394, the Board held that where an employee's signature on a card is induced by a representation that the card would be used solely to obtain an election "in which every employee would have an opportu- nity to express his preference," the Board will not accept the card to establish repre- sentative status of the union.14 Subsequently, in Cumberland Shoe Corporation, 144 NLRB 1268, 1269, the Board held that where the card explicitly authorized the Union to bargain for the card signer, "the failure of the Union's solicitors to affirmatively restate this authorization does not indicate that it was abandoned or ignored." The Board pointed out that theie must be evidence "to negative the overt action of the employees in signing cards designating the Union as their bargaining agent." 15 Fur- ther elaborating in Peteison Brothers, Inc., 144 NLRB 679, 682, the Board stated, "If the cards are to be voided on the ground that the employees were misled into believing the cards would be used for a different or more limited purpose, this must be done on the basis of what the employees were told, not on the basis of their sub- jective state of mind when they signed the cards." This holding accords with judicial expression that an "employee's thoughts (or afterthoughts) as to why he signed a union card, . . cannot negative the overt action of having signed a card designating a union as bai gaining agent." Joy Silk Mills, Inc. v. N L.R.B , 185 F. 2d 723, 743 (CA D C.); N.L R.B v. Winn-Dixie Stoies, Inc., 341 F. 2d 750, 755 (C.A. 6).16 The cards here expressly authorize the Union to act as the signatories' bargaining representative Under applicable Board doctrine, the question posed is whether Marino, the Union's card solicitor, represented that the sole purpose of the cards was to obtain an election in which the solicited employee would express his choice of representative. The credited testimony (supra, "B") establishes that he did not. Although Marino admitted telling Dunse "that we would get an election" and telling Crafts "that that [the card] was for an election," at the same time Marino told Dunse that "if we had the men, we got the men signed up here to join the Union, that we could have representation"; and Marino likewise told Crafts that the card "was for 14 In N.L.R.B. v. Harold W. Koehler, et at., d/b/a Koehler's Wholesale Restaurant Sup- ply, 328 F. 2d 770 (C A. 7), the court applied this principle after finding (in accord with the dissenting Board member in that case) that the card solicitor "told the employees that by signing the cards they were not selecting the Teamsters as their bargaining agent" and that "cards were [dust] for the purpose of obtaining an election " (328 F. 2d at 773 ) Cf. N.L R.B. v. Mid-West Towel and Linen Service, Inc, 339 F. 2d 958, 962-963 (C.A. 7) ; N.LR.B. v. Winn-Dixie Stores, Inc. and Winn Dixie Louisville, Inc, 341 F 2d 750, 754 (C.A. 6) ; N.L.R B. v. Gene Hyde, d/b/a h yde's Supermarket, 339 F. 2d 568, 570-571 (C.A. 9). 15 In giving effect to the cards in Cumberland, the Board distinguished Englewood on the ground that there "the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many, signatures, including those of two employees whose hostility to the designated union was open and notorious." (144 NLRB at 1269, footnote 3 ) 16 Stressing the ambiguity of the language on the card, the Fifth Circuit Court reversed Peterson. In addition to purporting to be an "authorization for representation," the card there stated that "this is not an application for membership" and that it is to be used "for an NLRB election " (342 F. 2d 221, 224 (CA. 5)) Of N.L R B v Winn- Dixie Stores, Inc., supra, 754; SN.C. Manufacturing Co., Inc, 147 NLRB 809, enfd 352 F. 2d 361 (C.A.D.C.). NELSON CHEVROLET COMPANY 837 membership." Marino had thus in effect indicated to both Dunse and Crafts that the cards served a dual purpose- union membership (or representation) as well as a Board election. Cf. Winn-Dixie, supra, 754. Furthermore, the contemporaneous conduct of these two employees evidences their strong interest in union representation (and in effect confirmation of their designa- tion of the Union as bargaining representative). Cf. Hyde, supra, 571. Thus, shortly after Dunse had signed his card and before Respondent had rejected the Union's bar- gaining request, when Company President Garrett told Dunse (and two others with him) "I understand that you men want a union here," Dunse replied that he did. Likewise, shortly after he had signed his card, Crafts told Garrett-in answei to the latter's request why he had joined the Union-that, "I am sorry I didn't sign it 6 months sooner." The evidence shows that the dissatisfaction of the salesmen with Respondent's action in canceling their weekly $50 pay was a material factor in their decision to organize. There is no evidence that any employee at any time returned the membership card which the Union mailed him shortly after he signed his applica- tion card. (On the contrary, Dunse testified that he still has the membership card in his possession.) And both Dunse and Crafts testified that, in response to the Union's call, they went out on strike later in September, thereby affirming their union affilia- tion.17 The employees' contemporaneous and subsequent actions are thus consistent with membership and indicate that in signing the cards "their intention was not pri- marily to obtain a future election." (Cf. N.L.R.B. v. Hyde, supra, 571.) I accordingly conclude that the cards signed by a majority of Respondent's employ- ees in the appropriate unit constituted valid designation of the Union as bargaining representative. 5. Respondent's contention that it was entitled to test the Union's majority in a Board election is necessarily grounded on the claim that it entertained a good-faith doubt as to whether by reason of the authorization cards the Union had validly been designated as bargaining representative of a majority of its employees in an appropri- ate unit. Presumably the "doubt" is premised on the information it received from salesmen to the effect that they had signed cards to obtain an election in which they could express their wishes on representation. As found, Dunse, Crafts, and Robert Garrett had informed Company President Garrett that they thought they were signing for an election. However, as further found, each made it plain that he wanted the Union. Moreover, Crafts told President Garrett that he regretted not having joined the Union 6 months earlier. Robert Gar- rett offered to quit the Company if his action displeased Respondent. Dunse agreed with President Garrett's evaluation that his signature on the card meant that "you are in the union now." In view of the employees' unequivocal affirmations of support for the Union, it is reasonable to infer that Respondent had no real doubt that the three employees wanted to be represented by the Union. Furthermore, all three employees heeded the Union's call to strike around Septem- ber 22 or 23, so that even if up to that time Respondent had in good faith doubted these employees' wishes to be represented by the Union, there appears to have been no justification for extension of such doubt thereafter.18 Under the circumstances, it is necessary to look to other explanations for Respondent's continued refusal to recog- nize and bargain with the Union. The chagrin and disappointment voiced by Com- pany President Garrett upon learning that his salesmen had signed union cards, and his statements to them that "Nelson Chevrolet would be sold" before he would allow it to be "union," appear out of keeping with Respondent's contention that its refusal to deal with the Union was motivated solely by good-faith doubt as to its majority. Cf. N.L.R.B. v. Economy Food Center, Inc., 333 F. 2d 468, 472, (C.A. 7); Taitel & Son, supra, 5. I conclude that Respondent's refusal to recognize and bargain with the Union on and after August 19 was not motivated by good-faith doubt as to the Union's majority, but by rejection of the principle of collective bargaining and desire to gain time to destroy that majority. 17 Cf N.L.R.B. v. Barney's Supercenter, Inc., 296 F. 2d 91, 94 (C.A. 3) ; N L R.B. v. Waukesha Lime & Stone Co., Inc., 343 F. 2d 504, 508 (C.4. 7) ; N.L.R.B. v. William S. Shurett, d/b/a Greyhound Terminal, 314 P. 2d 43, 44 (C.A. 5) ; N.L.R.B. v. Irving Taitel, at al., d/b/a I. Taitel & Son, 261 F. 2d 1, 4 (C A 7). 18 See N.L R B v Waukesha Lime & Stone Co., supra; N L.R.B. V Taitel & Son, supra; Scobel Chemical Company, Inc v N.L.R.B., 267 F 2d 922, 925 (C.A 2) , N.L.R.B. v. Barney's Supercenter, Inc., supra, 93-94. See also, Allegheny Pepsi-Cola Bottling Com- pany v. N.L R.B., 312 F. 2d 529, 532 (C.A. 3). 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Conclusions respecting Respondent's alleged coercive interrogation and statements Company President Garrett admitted that following the Union's August 17 bar- gaining demand he asked each of the five card signers whether he had signed up for the Union. According to Garrett, he asked each employee whether he signed to get the Union or to get an election. Garrett indicated his displeasure at the employees' card signing by informing one group of employees that he did not think they needed a union; by telling one employee (Dunse) who told him that he had signed for an election, "Well, ... you are in the union now"; by reminding another (Robert Garrett) that the employee had previously told him that he had not signed a card; by remarking to another one (Crafts), "You of all people. I cannot understand your signing a union card"; and by telling still another (Unruh)-who had been entrusted with some management functions-that "since you want to be a member of the union ... you should have your deals okayed" by the sales manager. President Garrett did not limit himself to interrogations. Shortly after the Union distributed literature in June, Garrett told the assembled employees that the Company "would be sold" before it went union. Subsequently (around August 23) he repeated the threat to Marino, the Union's leading adherent and card solicitor, stating that "before he would see Nelson Chevrolet become union, he would sell it." The Board has held that an employer may, under certain circumstances, question employees in order to verify a Union's majority claim if he observes proper safe- guards, including disclosure of a legitimate objective and good-faith assurance that there will be no reprisals. Blue Flash Express, Inc., 109 NLRB 591. The manner in which the answers are elicited and the background of the questioning ( e.g., the employer's animus toward unionization) are relevant in determining whether the questioning is permissible. (Ibid.) There is no evidence that President Garrett con- veyed to the employees any assurance that there would be no reprisal against any prounion employees. On the contrary, he conveyed the clear message to them that he did not look with favor upon unionization of his business. And the questioning was preceded and followed by threats to sell if the Union came in. Under all of the circumstances, I find that Respondent's questioning of the sales- men were coercive, in violation of Section 8 (a) (1) of the Act. I further find that Respondent's threat to sell the business, made to Marino around August 23, is also violative of that section.19 That threat constituted a violation even if Respondent, in fact, "contemplated" disposition of the business before the advent of the Union, since "even if that were so, it did not justify respondent in making the anticipated events the subjects of threats and allurements to force abandonment of the Union by the employees." N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258, 262 (C.A. 9), cert. denied 348 U.S. 829. See also, The Atlas Underwear Co. v. N.L.R.B., 116 F. 2d 1020, 1023 (C.A. 6). V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that Respondent unlawfully refused to recognize and bargain with the Union, the Recommended Order will request Respondent, upon request, to, bargain collectively with the Union and, if an understanding is reached, to embody such understanding in a signed agreement. For reasons set forth in Gateway Chevrolet Sales, Inc.-the companion case to this one-I reject Respondent's request that the Board decline to issue a bargaining order to remedy Respondent's unlawful refusal to bargain, even assuming Respondent was able to establish the truth of the evidence it proffered concerning the alleged corrupt- ness and undesirable character of the Union. However, as pointed out in Gateway, in the event it develops that the Union fails to fulfill its statutory obligation as exclu- sive bargaining representative of the employees in the appropriate unit, the Board may on appropriate application rescind the Union's authority to act in that capacity. 19 Although relying on the threat made by Respondent in June for background and context, General Counsel has not asked that that particular threat also be found as a violation , since the complaint failed to allege it as such. Because the order to be recom- mended herein, based on the August threat (which was alleged), will require Respondent to cease and desist from conduct of that nature , a finding that the June threat was also a violation is unessential. NELSON CHEVROLET COMPANY 839 CONCLUSIONS OF LAW 1. Nelson Chevrolet Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All automobile salesmen employed by Respondent at its location in Chicago, Illinois, including the truck sales manager, but excluding office clerical employees, all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since August 17, 1964, the Union has been the exclusive representa- tive of all employees in the above appropriate unit, for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union on and after August 19, 1964, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the conduct above described by coercively questioning employees concerning their union affiliation and activity, and by threatening employees with reprisals in the event of unionization of the business, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that Respondent, Nelson Chevrolet Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, as the exclusive representative of the employees in a unit composed of its automobile salesmen (including the truck manager), at Chicago, Illinois, excluding office clerical employees, all other employ- ees, guards, and supervisors as defined in the National Labor Relations Act, as amended. (b) Coercively interrogating employees with respect to their union affiliations, activities, desires, and threatening employees with reprisals in the event of unioniza- tion of Respondent's business. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist the above- named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclu- sive representative of the employees in the unit set forth above, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody the same in a signed agreement. (b) Post at its place of business in Chicago, Illinois, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Direc- tor for Region 13, shall, after being duly signed by a representative of Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where 21111 the event that 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 words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply therewith.21 "'In the event that 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." APPENDIX 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, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, as the exclusive representative of all of our automobile salesmen, with respect to rate of pay and other terms and conditions of employment, and if an understanding is reached, embody the same in a signed agreement; WE WILL NOT coercively question our employees concerning their union affilia- tions, sympathies, or activities. WE WILL NOT threaten our employees with sales or reprisals in the event our business is unionized. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Automobile Salesmen & Misc. Workers Union Local No. 192, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All of our employees are free to become, remain, or refrain from becoming or remaining members of the above-named labor organization or any other labor organization. NELSON CHEVROLET COMPANY, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572. Murray Ohio Manufacturing Company and Teamsters, Chauf- feurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases Nos. 26-CA- 1993, 26-CA-2056, and 26-RC--2282. January 17, 1966 DECISION AND ORDER On September 28, 1965, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respond- 156 NLRB No. 85.