Vaughan-Hicks Buick Co.

1 AUGHAN-HICKS BUICK CO. 587 notifying and bargaining with the above-named Union concerning such decision and its effects. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist unions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL reimburse all employees or former employees of our plant at Ozark, Missouri, who punched in on December 19, 1963, for any loss of pay suffered because of the discrimination against them on that date, with 6 percent interest. WE WILL offer to and, upon request, bargain collectively with the above- named Union as the exclusive representative of all employees in the unit about resumption of our operation at Ozark, Missouri, and failing to reach agree- ment in this matter, WE WILL bargain collectively about the effects of the dis- continuance of this operation. If agreement should be reached, WE WILL, upon request, put it in the form of a written contract. The unit is: All employees of Ozark Trailers, Incorporated, except office clerical em- ployees, watchmen and guards, professional employees, the plant manager, and all other supervisors WE WILL reimburse the employees named below for any loss of pay suffered by them because of the discontinuance of our operation at Ozark, Missouri, with 6 percent interest. A. R. Chilton Max Estes Jim Tinker Clarence Chilton Howard Haifling Eugene Van Horn Bill Clayman Rex Henry Tom Van Horn Larry Day Hollis H. Hull Lyle Wood OZARK TRAILERS, INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) HUTCO EQUIPMENT COMPANY, Employer. Dated------------------- By------------------------------------------- (Represent,itive) (Title) MOBILEFREEZE COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Reprosent,ttive) (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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri 64106, Telephone Baltimore 1-7000, Extension 731. Vaughan-Hicks Buick Co. and International Association of Ma- chinists and Aerospace Workers, AFL-CIO. Cases 26-CA-2260 and 26-PC-2607. October 28, 1966 DECISION AND ORDER On June 22, 1966, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respondent 161 NLRB No. 41. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found merit in the Union's objec- tion to the election in Case 26-RC-2507, and recommended that all proceedings in connection with the petition be vacated. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 exceptions and the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] [The Board dismissed the petition in Case 26-RC-2507 and vacated all proceedings held in connection therewith.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This consolidated proceeding was heard before Trial Examiner George A. Down- ing at Little Rock, Arkansas, on March 15, 16, and 17, 1966, pursuant to due notice. The complaint in Case 26-CA-2260 which was issued on January 6, 1966, under Section 10(b) of the National Labor Relations Act, on charges and amended charges dated November 17, and December 8 and 21, 1965, alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act in specified respects as more fully set forth in section II, A, infra. Consolidated therewith for hearing and decision were certain objections to conduct affecting the results of the election in Case 26-RC-2507. Respondent answered denying the unfair labor practices as alleged. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS; THE LABOR ORGANIZATION INVOLVED I conclude and find on facts alleged in the complaint and admitted by answer that Respondent, an Arkansas corporation engaged at Little Rock in the sale and service of new and used automobiles, is engaged in commerce within the meaning of the Act (through , annual gross revenues in excess of $500 ,000 and through direct purchases from extra-State points of goods valued at more than $50,000), and that the Charging Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction and issues Respondent, the Buick dealer at Little Rock, sells and services new and used cars and operates in conjunction with its business a service and parts department whose VAUGHAN-HICKS BUICK CO. 589 employees are those involved in these proceedings. Following an organizational meeting in late September the Union requested recognition and bargaining on Sep- tember 30, and filed a representation petition on October 1 under Case 26- RC-2507. The Regional Director's Decision and Direction of Election was issued on November 9, and the election, held on December 8, was lost by the Union (13 votes for, 16 against, and 12 challenged ballots). The Union filed objections which the Regional Director found in his Supplemental Decision issued on December 27, to relate to the same conduct as that covered by the unfair labor practice charges. He ieseived ruling on 11 challenged ballots cast by strikers and consolidated the proceeding with the unfair labor practice case for the purpose of resolving the issi'es raised by the objections The complaint in Case 26-CA-2260 alleged a refusal to bargain commenc- ing on or about October 1. 1965, and various acts of interference, restraint, and coercion thereafter, i e , solicitation of employee assistance to campaign against the Union, unilateral improvement of working conditions in various respects, promises of benefits, threats of reduced earnings, and loss of employment, the withholding and the granting of wage increases, and offers to bargain directly and individually with the employees, bypassing the Union. It also alleged that Respond- ent discriminatorily refused to reinstate 11 strikers upon their unconditional appli- cation following the termination of an unfair labor practice strike on October 26. The Section 8(a)(1) conduct as litigated presented only factual issues The refusal to bargain was defended mainly on the ground of a good-faith doubt of majority and of uncertainty as to the Union's unit claims. The refusal of reinstate- ment of the strikers was defended on the ground that the strike was of economic origin and that the strikers were permanently replaced Respondent raised a further issue that the strike was illegal because it was in violation of Section 8(b)(7)(C) of the Act, and that the strikers engaged in misconduct which interfered with the delivery of automobiles to Respondent. B. The evidence 1. Antiunion conduct of Respondent's officials and supervisors George Cornatzar testified that on the morning of October 12, Joe Humphreys, service writer,' told him that the employees were making a mistake in what they were doing and that, "You know, if anything ever happens that you lose your job, you will have to leave Arkansas to get another one." Humphreys was not called as a witness. Seven witnesses testified to a variety of interrogations by Service Manager W. F. Morgan and to statements made by Morgan concerning the Union in the week before the strike began on October 14, the more material portions of which are summarized below. Gene Horton testified that Morgan expressed surprise to hear about the Union and asked how Horton felt about it. Horton answered that he did not know, and Morgan stated, "Well, before it comes to a vote, you better be D- sure you do know." Willie Fay Abshure testified that Morgan expressed surpiise at hearing about the Union the employees were trying to get in and stated he thought they had "a pretty good deal like it was." Ralph Eudy testified that Morgan questioned him as to how the employees thought the Union could help them and stated he thought the Company could help as much as the Union On a subsequent occasion after Eudy began wearing a union button, Morgan questioned him as to what the button was and whether he was a member of the Union. Don Webb testified that on October 14 Morgan approached him, looked at his union pin, asked what the Union meant, and stated he believed the Company could help Webb more than the Union. Orval Chambers testified that Morgan questioned him concerning what he thought about the Union and stated he did not see how the Union would help the employees. 1 Respondent contended at one point during the hearing that Humphreys was not a supervisor but it did not renew that contention after attention was called to the fact that Respondent's answer admitted Humphreys' supervisory status. Furthermore, the Regional Director's Decision and Direction of Election contained the finding that Humphreys was a supervisor, and Respondent filed no request with the Board to review that finding See Rules and Regulations , Series 8, Section 102.67(b). 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Lawrence testified that Morgan questioned him as to whether he knew about the Union, what he thought about it, who started the Union, how it would help the employees any, and whether Lawrence had made up his mind how he was going to vote. Morgan stated he did not want the Union to run the place and that the Company could do more for the employees than the Union could. In a second conversation Morgan inquired whether Lawrence had heard any more about the Union and stated that if the Union came in, two or three of the employees would make more money than the rest of them, who would be back on the same level with John Weber. Jim Viner testified that Morgan informed him that he (Morgan) had talked to, most of the employees about the Union and questioned Viner as to what he thought the Union would gain for the employees. Morgan made no denial of the testimony of Abshure and Viner and he admitted the fact of a conversation concerning the Union with the other witnesses as well as with many other employees. Though Morgan denied the interrogations and the coerce statements which were attributed to him, there was no corroboration of his testimony and his denials were overborne by the cumulative weight of the testi- mony to the contrary which, because of the number and the similarity of the con- versations, became in effect mutually corroborative. I therefore find that Morgan- made the statements and engaged in the interrogations which the General Counsel's witnesses testified to. D. E. Preston testified that on October 13, President Lee H. Vaughan approached him and stated he understood that some of the employees wanted a union and that some of them had even signed cards. When Preston acknowledged that he also signed a card, Vaughan mentioned the fact that Preston was a part-time employee and asked whether Preston realized he might not be needed after that. Preston replied he realized that his job might be in danger when he signed a card. He was in fact denied reinstatement after the strike. Vaughan testified that it was Preston who mentioned the interest of the employees in union activities and he admitted that in replying he expressed concern about that and asked Preston, "Will the union allow a part-time worker to stay on our payroll?" There was thus no conflict on the point that Vaughan suggested to Preston that his job was in jeopardy because of the Union. Though under Vaughan's version the danger was to emanate from the (assumed) position of the Union on part-time employees, events proved, as established by other evidence herein, that the retaliation against Preston and other union members was wholly Respondent's- doing. Further- more, Vaughan's conduct was part of a common course of coercive conduct in which he, Morgan, Humphreys, and Hicks were contemporaneously engaged as herein found. I therefore credit Preston's testimony. Seven witnesses 'for the General Counsel testified to hearing a speech which Vaughan made to the employees on November 26, during which Vaughan said in part that the strikers who had not been reinstated were permanently replaced and would not be put back to work because he expected to-'retain the replacements. Vaughan also -told the employees that instead of having to take their. vacations dur- ing the summer months while school was out (as they had in the past), they could split up their vacations if they wished to and take 1 week during the winter and 1 during the summer or- at some other time during the year. Vaughan also referred to the fact the Company was still working on an insurance program and thought it possibly would be ready by the first of the year. Vaughan testified that Respondent's vacation policy was not in fact changed, but that although the Company tried to have vacations scheduled during the school vacation months, it still allowed the employees; upon request, to split their vacations and take it some other time during the year. Concerning the giving of the speech itself, Vaughan testified that he followed with a single deviation the text of a draft which was received in evidence as an exhibit. The only deviation, Vaughan testified, concerned his reference to some property on University Avenue and. to a change in building plans. Vaughan was cross-examined concerning certain notations which appeared on the face of the typewritten draft of his speech. One sentence in the draft read " Point out the benefits these employees enjoy, such as insurance program, holidays; vacations, etc." That sentence bore a penciled deletion and opposite it in the margin the nota- tion "Omit." At the bottom of the same page, however, there appeared the follow- ing notation in pencil "Talk a little about property on University, heat, insurance and air-cond." Vaughan 'acknowledged' that the notations were his and though he VAUGHAN-HICKS BUICK CO. 591 admitted following the latter notation so far as mentioning the property on Univer- sity Avenue was concerned, he denied that he discussed heat, insurance, or air con- ditioning and that he also omitted any reference to holidays and vacations As is seen Vaughan's testimony was in direct conflict with the mutually corrob- orative testimony of a number of witnesses as well as with his own penciled notation reminding him to talk about heat, insurance, and air conditioning I therefore credit the mutually corrobative testimony of the General Counsel's witnesses 2 The remainder of the testimony related to the conduct of General Manager John Hicks, who came with the Company in June 1965, and who became a part owner on August 1. Some 2 weeks after the latter date, Hicks and Vaughan gave an "appreciation dinner" to the employees of the service and parts department at Hank's Dog House and these mentioned certain improvements which they were con- sidering (e g., insurance, pensions and retirement, etc.), and which they hoped to put into effect in the future. Around September 7 or 8, Hicks met again with the same employees and questioned them concerning their complaints and asked for their suggestions. The testimony of the General Counsel's witnesses was in general directly concerned with Hicks' efforts, following the Union's request foi recognition and both before and during the strike, to deal directly with the employees about the matters which he had mentioned in his two earlier meetings with them.3 Robert Lawrence testified that Hicks spoke to him separately concerning the improved benefits he had mentioned in the August meeting and stated he was going to work on those matters. Robert Childers testified that Hicks asked to talk with him about "something that was going on around there" and what Childers thought "those people" could do that Hicks could not do himself. Childers replied he did not think there was anything he could do that Hicks could not but that he had been hearing "that stuff" a long time and did not pay attention to it any more. Six witnesses testified to a conversation between Hicks and a group of some 8 or 10 employees on October 13, the day before the strike, in which George Cor- natzar did most of the talking on the employee side. In brief Hicks reminded the employees of his earlier statements in the dinner meeting concerning such things as insurance, vacations, heating the shop, etc., and complained that the employees had not given him sufficient time to show what he could do concerning improvements on those matters, which he was working on at the time. Hicks stated that he would like to meet with the men as a group, or with them and their wives, for the purpose of reaching an agreement which would solve their problems. Cornatzar inquired whether Hicks meant that he was willing to meet with a union representative pres- ent, and Hicks ieplied that the word "union" was not mentioned, but added that if the men were willing to meet with him he would hire a motel and buy them a steak dinner. Hicks' testimony was not in substantial conflict. He admitted he told the employ- ees he would be delighted to meet with them or their wives to discuss with them the program which he had mentioned in August and admitted further that when someone inquired whether a union representative would be invited to such a meet- ing he replied, "I did not mention the word at all." After the strike began Hicks continued his efforts to deal directly with the employ- ees, either with or without their wives. Elaine Cornatzar, wife of George Cornatzar, testified to a conversation with Hicks on the subject when she went into the show- room on October 18 to thank Hicks for sponsoring her bowling team. Though there were conflicts between her testimony and Hicks' on minor details, Hicks' testimony and his pretrial affidavit given to the Board was in substantial accord with Mrs. Cornatzar's testimony concerning the following facts: After discussion of employee complaints, outlined by Mrs. Cornatzar, Hicks agreed to straighten them out but claimed the men had not given him enough time to do so; that if they would give him 2 months, he would agree to have a better insurance policy and better working conditions; and that he would like to call a 3 Vaughan made no specific denial of their testimony concerning his intention not to reinstate the strikers and the draft of his speech contained statements which iiere in sub- stantial accord with that testimony. 3 Hicks' testimony showed, however, that he did not consider himself as limited to the matters he had previously discussed with the men. Thus when questioned as to his posi- tion in the meeting which he was seeking with the employees if they should ask for some- thing beyond the subjects prciiousl5 discussed, Ilicks replied, "I was in a position to discuss it " 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting of the men and their wives and talk over what they wanted 4 Mrs. Cor- natzar suggested that if Hicks were serious about the matter he should go outside and talk with her husband and the other men on the picket line. Thereupon they left the building and Hicks spoke with Cornatzar outside. Again Hicks' testimony and his affidavit were not in substantial conflict with the testimony of the Cornatzars that Hicks stated that he would like to have a meeting with the men and their wives to discuss what they wanted. Though Hicks professed inability in his affidavit to recall what he said other than having a meeting, he testified that he referred specifically to his program as he outlined it in August and stated he would like to meet to outline that program further. Cornatzar testified further that on the following morning Hicks spoke to him again on the picket line, stating that he would like to have a meeting with the men, talk the matter over with them, and draw up a contract covering the things they were in agreement on, and that the contract would provide that the employees would allow him 2 months to live up to it and if at the end of 2 months he had not fulfilled the agreement, Hicks would open the doors and let the Union come in without any objection. Robert Lawrence testified to a similar conversation with Hicks on the picket line in which Hicks expressed a desire to meet with the men individually, or with them and their wives, to work out something concerning insurance, heat, and re'irement and in which Hicks stated that if the employees did not receive the benefits by a specified time, he would open the doors and let the Union come in. Hicks requested Lawrence to talk to the other employees to see if the matter could be worked out on some such basis. Lawrence agreed, and in fact talked with other employees about Hicks' suggestion. Though Hicks denied the conversation with Lawrence, the statements which the -latter testified to were substantially the same as those which Hicks made to Cor- natzar and Mrs. Cornatzar and to the group of mechanics before the strike. Lawrence's testimony may thus be regarded as being indirectly corroborated by Hicks' course of conduct. 2. The strike; the denial of reinstatement Following- Hicks' conversation with the group of mechanics on the morning of October, 13, the employees attended a meeting at the union hall. The testimony was in general accord that the men discussed Respondent's refusal to recognize the Union and to its delaying and stalling 5 while Vaughan and Hicks were attempting to talk the men out of the Union and trying to break down their adherence to it. 'Specific reference was made to Humphreys' remarks to Cornatzar and to what Hicks had told the men that morning. The employees voted to strike on October 14 -unless the Company would immediately grant recognition. The Union wired Respondent to that effect, and when Respondent by return wire refused recognition (see section 5, infra), the men struck on October 14. Some 19 men walked the picket line daily, were admittedly seen by Hicks, and their names were signed to a telegram on October 16 (see section 5, infra), in which Respondent was informed that the Union was the collective-bargaining representative of the signatories. On October 26 the strike was terminated and the strikers made unconditional applications to return to work. Respondent refused reinstatement to 10 of them (Willie F. Abshure, George Cornatzar, Delmar Newton, Otis Parker, Don Webb, Robert L. Childers, Ralph Eudy, Charles O'Bryant, D. E. Preston, and John T. Weber), on the ground that they had been permanently replaced during the strike. Phillip Beavers applied for reinstatement separately on October 28 and was denied reinstatement on the same ground. ' - * Hicks' affidavit was in full accord, as follows: I said that if the employees would give me 2 months I would get everything straight- ened out for them but they have not given me a chance. I said I would have them a good insurance policy and the other benefits they needed and if in these 2 months I have not done the things I said I would do for the men, then I would open the doors and welcome the Union In. I said I would like to hold a meeting for the men and their wives some place and ask each of them what they would like to have and I would write it all down 5 Respondent had obtained from the Regional Director a continuance of the hearing date in the representation case from October 15 to October 25 because the earlier date con- -flicted with the opening show date for new model cars. VAUGHAN-HICKS BUICK CO. 593 Don Webb renewed his application on November 1 and was again denied rein- statement by Hicks, who offered, however, to get Webb a job out of the State. 'Charles O'Bryant, who was subsequently reinstated to his same job, was required to fill=out,an application as a new employee and was paid on a different basis than before the strike. Respondent also furnished O'Bryant's uniform, though he for- merly was required to pay for his own. Though new employees were hired from time to time since the termination of the strike, including one during the course of the hearing, Respondent did not offer the jobs to any of the strikers to whom it had denied reinstatement. 3. The alleged illegality of the strike By answer and amended answer Respondent asserted in varying form a defense to the effect that the strike was an illegal one because it was a violation of Section 8(b)(7)(C) of the Act in that an object was to force Respondent to recognize the Union and in that the picketing had the effect of interfering with the delivery of new autos to Respondent. All that was involved under Respondent's evidence was a single incident during the strike when strikers Ralph Eudy and Jim Viner persuaded the driver of a transport not to unload some new cars at the usual delivery point as well as at a secondary delivery point (Grady Manning Garage) and finally at Searcy, Arkansas, some 40 miles away. Following an arrangement worked out by telephone calls from Searcy, the cars were reassigned by General Motors to the Searcy dealer, the Vaughan-Hicks stickers were removed from the cars, and they were then unloaded by the driver, all with, the agreement of Eudy and Viner. 4. Unilateral improvements in working conditions There is no conflict in the evidence that Respondent took certain unilateral actions concerning the wages, hours, and working conditions of the employees following the Union's request to bargain and that it failed to notify or to consult with the Union about them. Such changes included (in addition to those affecting O'Bryant, section 2, supra), the following: Periodic raises were given to Clyde Duck, an employee who was hired during the strike. Bobby Crabtree was given a raise in December and at the same time was given a check for $120 which purportedly covered his backpay at the new rate back to his hiring on August 15. Crabtree admitted on cross-examination that he was hired with the understanding that he would get a raise in about 2 months and he testified to various conversations with Hicks before and after the strike in which Hicks mentioned the raise but stated he could not give one because it would be illegal to do so until the Union matter was settled. Certain Saturday afternoon work was eliminated. An improved vacation policy was put into effect as announced in Vaughan's speech on November 26. (See section 1, supra.) An improved insurance plan was put into effect in January 1966. That was one of the matters mentioned at the August dinner, but the first contact with insurance compaines was not made until September, and the proposals from some six com- panies were submitted in October, November, and December. Hicks chose the plan which he considered to be the best, and on December 31 authorized the carrier to put the plan into effect. Additional heating was installed in the service department and was placed in operation on the day before the election. However, Respondent offered undisputed testimony of a disinterested witness which established that the contractual arrange- ments were made during the month of September between the owner of the build- ing (not Respondent) and an independent contracting concern. 5. Evidence relating to the refusal to bargain a. The appropriate unit; the Union's majority The Regional Director found on stipulation of the parties at the representation hearing that all service department employees, including parts department employ- ees, at Respondent's Little Rock, Arkansas, operation, excluding office clerical 264-188-67-vol. 161-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, salesmen, managerial employees, guards, watchmen, and supervisors as defined in the Act constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The parties stipulated at the present hearing that some 30-named employees properly belonged in that unit, leaving in issue only the status of Joe Humphreys and one Mathis. I find. Humphreys to be excludable from the unit as a supervisor. (See footnote 1, supra.) I find on Hicks' undenied testimony that Mathis was a regular part-time employee of the service department and that ' he therefore belonged in that unit. This makes a total of 31 employees within the unit, which coincides with the number which Hicks specified in his testimony at the repre- sentation hearing. A total of 21 employees personally authenticated at the hearing their signatures on membership applications and/or authorization cards, both of which contained specific authorizations to the Union to represent the signatories as collective- bargaining agent. Phillip Beavers' card bore the date of October 15, but in all other cases the first' card signed by each employee bore a date prior to October 1. The General Counsel also offered application and authorization cards dated Septem- ber 28 and October 14, respectively, of Otis Parker, whose signature was authenti- cated by George Cornatzar, and the application card dated December 5 of Robert D. Osburn, which was authenticated by Business Representative J. C. Rhew. Cross-examination by Respondent of some of the signatories developed nothing which reflected either on the validity of the authorization nor anything which constituted a revocation. Indeed 19 of the signatories affirmed their designation of the Union by their telegram to Respondent on October 16 and also by striking and picketing the shop from October 14 through 26. b. The requests and the refusals On September 29, the Union wrote Respondent notifying it that the Union was conducting an organizing campaign among the employees and on September 30, it wrote Respondent that a majority of the employees "in the garage and mainte- nance departments" had authorized the Union to represent them for collective bargaining, requested recognition, and suggested a meeting on October 13 or 14 for the purpose of negotiating the terms of a working agreement. The letter stated further that the Union was prepared to demonstrate its majority showing to a disinterested third party and suggested the municipal judge or any clergyman. Respondent answered neither of those letters. The Union filed its representation petition on October 1 in which it described the unit as including all service depart- ment employees employed at the Little Rock establishment, excluding office clerical employees, salesmen, managerial employees, guards, watchmen, and supervisors as defined in the Act. On October 12 Respondent requested and the Regional Director granted a post- ponement of the hearing date on the representation petition from October 15 to 25. On October 14, the Union wired Respondent, referring to its request for recog- nition and its offer to prove its majority representation through a third party and to the fact that Respondent had procured through its attorney an extension of time for the hearing before the National Labor Relations Board. The wire continued as follows: YOU HAVE BEEN TRYING TO DISSIPATE OUR MAJORITY. AT THIS TIME WE REQUEST A MEETING FOR RECOGNITION AT 2 PM OCTOBER 14 1965 OR WE WILL STRIKE IMMEDIATELY. Respondent replied by wire of its attorneys, Clark and Martin, as follows: REURTEL SINCE YOUR LETTER REQUESTING RECOGNITION WAS FOLLOWED BY A PETITION FOR AN ELECTION COMPANY ASSUMED THAT YOU DESIRED TO RESOLVE QUESTION OF MAJOR- ITY STATUS BY ELECTION PROCEDURES. COMPANY HAS REASON- ABLE DOUBT THAT YOUR UNION REPRESENTS MAJORITY OF EMPLOYEES AND DENIES ANY ATTEMPTS TO DISSIPATE ALLEGED MAJORITY STATUS. COMPANY REFUSED TO MEET WITH YOU AS SUGGESTED OR TO EXTEND RECOGNITION. ANY STRIKE AS THREATENED IN YOUR TELEGRAM WILL BE CONSIDERED ILLEGAL AND AN UNFAIR LABOR PRACTICE. VAUGHAN-HICKS BUICK CO. 595 The Union in turn replied by wire as follows: IN REPLY TO YOUR TELEGRAM RECEIVED THIS DATE AT 1 PM BE ADVISED THAT A SUBSTANTIAL MAJORITY OF YOUR SERVICE DEPARTMENT EMPLOYEES ARE MEMBERS OF THIS UNION AND HAS DESIGNATED THIS UNION TO REPRESENT THEM FOR COL- LECTIVE BARGAINING. WE AGAIN OFFER TO SHOW OUR PROOF OF THIS MAJORITY BY MEMBERSHIP APPLICATIONS UNLESS YOU AGREE TO RECOGNIZE THIS UNION OR AGREE TO AN ELECTION FOR NEXT THURSDAY OR FRIDAY WE WILL ESTABLISH PICKETS AT YOUR ESTABLISHMENT IMMEDIATELY PHONE YOUR REPLY BY2PMTODAYATFR500i1. On October 16, 19 employees signed and sent to Respondent the following telegram: WE THE UNDERSIGNED REQUESTED MR. JIM RHEW, BUSINESS REPRESENTATIVE OF LOCAL LODGE 1775 IA OF M AND AW TO SEND THE FOLLOWING TELEGRAM TO VAUGHN-HICKS BUICK CO. I VOLUNTARILY JOINED THE MACHINIST LOCAL 1775 AND THAT UNION IS MY REPRESENTATIVE FOR COLLECTIVE BARGAINING. The Union in turn wired Respondent as follows: SINCE YOUR SERVICE DEPARTMENT EMPLOYEES HAS REMOVED ANY DOUBT THAT WE ARE THEIR COLLECTIVE BARGAINING REPRESENTATIVE THIS IS TO REQUEST A NEGOTIATING MEETING FOR OCTOBER 22 AT 10 AM AT YOUR OFFICE. IN THE MEANTIME YOU ARE REQUESTED TO LEAVE THE EMPLOYEES WAGES HOURS OF EMPLOYMENT AND OTHER CONDITIONS OF EMPLOYMENT STATUS QUOTE [sic] UNTIL A CONTRACT IS REACHED. On October 18 Respondent's attorney, Martin, wrote the Union acknowledging receipt of the telegrams of October 16 and 18, and continuing as follows: The company still has a reasonable doubt as to whether your union repre- sents a majority of its employees. This doubt is based on the structure of the entire company and representations that have been made to these employees by the union. The company feels that this issue should be resolved through an election conducted by the National Labor Relations Board pursuant to the petition you have recently filed. To support its alleged doubts, Respondent offered the testimony of Vaughan and Hicks in which they professed uncertainty and confusion as to the Union's unit claims because of the variation between the Union's letter and the representation petition, because the filing of the petition indicated to them that the Union was satisfied to resolve the majority issue by a Board-conducted election, because only a few of the employees wore union buttons, because the employees expressed no complaints in meetings which Hicks held with them, and because some of them expressed to Hicks lack of interest in the Union. However, Hicks was able to supply the names of only two of the latter and he admitted that they engaged in the strike and in picketing after making such statements to him. Furthermore, Hicks admitted seeing each of the strikers on the picket line, and all of them signed the telegram of October 16, reaffirming their designation of the Union. C. Concluding findings 1. Interference, restraint, and coercion I conclude and find on the basis of the evidence summarized in section B, 1 and 4, supra, that Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act by the following conduct: The interrogation of employees concerning their union membership, activities, and desires. Warning employees that because of their organizational activities they might be unable to obtain employment in the State. Warning employees that their earnings would be reduced if the Union came in. Offering to bargain directly and individually with the employees, bypassing the Union as their duly chosen bargaining representative. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soliciting an employee to assist in working out with other employees, bypassing the Union, an arrangement or agreement in settlement of employee complaints concerning working conditions. Respondent's unilateral actions, without notice to or consultation with the Union, in granting wage increases to employees and changing their mode of payment, and in improving working conditions by eliminating Saturday afternoon work, by pro- viding uniforms without cost, and by announcing and putting into effect an improved vacation policy and improved insurance coverage. 2. Discrimination; the issues concerning the strike I conclude and find that the employees struck on October 14 in protest of Respondent's unfair labor practices, specifically because of Respondent's refusal to recognize and bargain with the Union while Respondent's officials were contempo- raneously attempting to destroy the Union's majority and to bargain directly with the employees, bypassing the Union. I find that Respondent's evidence was wholly inadequate to establish that the strike or the picketing was unlawful under Section 8(b)(7)(C), for the following reasons: (1) The Union had filed a representation petition under Section 9(c) and it was currently being processed by the Board; (2) the picketing lasted only some 12 days; (3) Respondent filed no charge of an unfair labor practice against the Union; and (4) the strike was an unfair labor practice strike, as found above. I also find that Ralph Eudy's conduct in the incident concerning the unloading of cards did not constitute misconduct which would warrant the denial of reinstate- ment in his case. Indeed, Respondent reinstated without question Jim Viner, who participated jointly with Eudy in the entire incident. I conclude and find that the strikers, as unfair labor practice strikers, were entitled to full reinstatement to their jobs upon their application, even though it meant discharging replacements hired during the strike. N.L.R.B. v. J. H. Rutter- Rex Manufacturing Company, Inc., 245 F.2d 594, 598, and cases there cited. By refusing to reinstate 11 of them (see section B. 2, supra), Respondent engaged in discrimination to discourage membership in the Union. 3. The refusal to bargain I conclude and find on the basis of the facts found in section B, 5, a, supra, that at all times on and after October 1, 1965; the Union represented a majority of the employees in the appropriate unit (see Conclusions of Law No. 3 infra), and that on and after October 1, the Union has been the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. Respondent was therefore obligated by the statute to bargain with the Union upon its request on October 1, absent proof of facts which would relieve it of that obligation. It asserted two main defenses, a good-faith doubt of the Union's majority and doubt and uncertainty concerning,the Union's unit claims, which we consider in order. The general rule is that an employer may in good faith insist on a Board election as proof of the Union's majority unless it is motivated, not by any bona fide doubt, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the Union. Lake Butler Apparel Company, 158 NLRB 863, and cases there cited at footnote 2. But here Respondent engaged in a sweeping campaign of conduct which I find was calculated to undermine the Union's position with the employees and to dissipate its majority status. Such con- duct refuted the existence of Respondent's alleged good-faith doubt of the Union's majority status and established the illegality of Respondent's refusal to bargain. Id.; N.L.R.B. v. Overnite Transportation Co., 308 F.2d 279, 283 (C.A. 4). The mere fact that Respondent, after notice of the filing of the Union's representation petition, ultimately went to an election 6 was plainly not sufficient to overcome the clear showing of Respondent's bad-faith motivation. Lake Butler, supra, and cases there cited at footnote 3; N.L.R.B. v. Storack Corporation, 357 F.2d 893, 895 (C.A. 7); N.L.R.B. v. Security Plating Company, Inc., 356 F.2d 725, 727 (C.A. 9). 6 This was not a consent-election case, for Respondent went the full route, through a formal representation hearing and a formal Decision and Direction of Election by the Regional Director. VAUGHAN-HICKS BUICK CO. 597 Here Respondent attempted repeatedly to bypass the Union by bargaining directly with the employees and by acting unilaterally on various matters (see sections B, 4, and C, 1, supra). And though Respondent had broached to the employees prior to their organizational activities some of the matters on which it later sought to bargain with them, that did not leave it free, after the employees had chosen instead to bargain through a collective-bargaining representative, to ignore the latter and to continue its attempts to bargain directly with the employees. Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 684. For as the Court held in Medo, the statute guarantees to all employees the right to bargain collec- tively through their chosen representatives and, "Bargaining carried on by the employer directly with the employees, whether a minority or majority, who have not revoked their designation of a bargaining agent, would be subversive of the mode of collective bargaining which the statute has ordained ...." Respondent's defense concerning the unit is similarly without merit. Indeed, the evidence does not establish that Respondent professed to the Union either doubt or uncertainty as to the employees whom the Union was claiming to represent. The closest approach was the statement in the letter of its attorneys on October 18 that Respondent's majority doubt was based in part on "the structure of the entire com- pany." But if Respondent intended that vague statement to express doubt concerning the proposed unit, there was no evidence that such was its position at the represen- tation hearing, for Respondent there freely stipulated that the service department unit (the unit specified in the representation petition), included the employees in the parts department. Indeed, Vaughan admitted at the present hearing that he con- sidered the parts department to be part of the service department. Further evidence that Respondent considered the two to constitute a homogenous group was supplied by the inclusion of both at the appreciation dinner which Vaughan and Hicks gave them in August. In any event it is established law that a good-faith but errnoeous doubt as to the appropriateness of the unit is not a defense to an otherwise meritorious charge of refusal to bargain. Southland Paint Company, Inc., 156 NLRB 22, and cases there cited. Moreover, the unit which the Regional Director found to be appropriate (on stipulation by Respondent), represented at worst no more than a slight variation from that which the Union specified in the representation petition and did not affect the Union's majority status. Such variation therefore provided no justification for Respondent's refusal to bargain. Southland Paint Company, supra; Priced-Less Discount Foods, Inc. dVb/a Payless, 157 NLRB 1143, at footnote 11; Grand Food Market, 139 NLRB 73, 89.7 Mike Persia Chevrolet Co., Inc., 107 NLRB 377, on which Respondent relies, is plainly distinguishable. There the union's request specified a single unit of the com- pany's employees whereas its representation petition specified a unit covering the three Chevrolet dealers in New Orleans, and it was not until a late stage of the representation hearing that the union stipulated that a separate unit was appropriate. I therefore conclude and find that by refusing to bargain with the Union on and after October 1, 1965; by offering to bargain directly and individually with the employees, bypassing the Union; and by its unilateral actions, without notice to or consultation with the Union, as found in section C, 1, supra, Respondent engaged in unfair labor practices proscribed by Section 8(a) (5 ) and (1) of the Act. D. Case 26-RC-2507; the Union's objections to the election The findings made in section C, supra, on Respondent's unfair labor practices establish, and I find, that the Union's objections to the election were meritorious. That finding, however, does not require that a new election be directed, for the facts here bring this case squarely within the holdings of the Board in Bernel Foam 7It Is also to be noted that both In Priced-Leas, supra, and in Mock Road Super Duper, Inc., 156 NLRB 983, the Board, though finding it unnecessary to determine whether those respondents' refusals to bargain violated Section 8(a) (5) of the Act, nevertheless ordered the respondents to bargain with the unions since the respective unions did represent a majority of the employees in the units found appropriate and since the respondents' un- lawful conduct established that they had completely rejected the collective-bargaining prin- ciple and had merely sought an election in order to gain time to undermine the unions and dissipate their majorites. A similar order would plainly be warranted here were there any legal or technical obstruction to finding a Section 8 (a) (5) violation. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Products Co., Inc., 146 NLRB 1277; Irving Air Chute Company, Inc., 149 NLRB 627, 629-630, and S.N.C. Manufacturing Co., Inc., 147 NLRB 809, 810-811. I shall therefore recommend that the petition in Case 26-RC 2507 be dismissed,' and that all proceedings in connection with it be vacated. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act Respondent engaged in unfair labor prac- tices within the meaning of Section 8(a) (1) of the Act. 2. By refusing to reinstate Willie F. Abshure, George Cornatzar, Delmer Newton, Otis Parker, Don Webb, Robert L. Childers, Ralph Eudy, Charles O'Bryant, D. E. Preston, John T. Weber, and Phillip Beavers to their former or substantially equiva- lent positions upon their applications, Respondent discriminated to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8 (a) (3) and (1) of the Act. 3. All service department employees, including parts department employees, at Respondent's Little Rock, Arkansas, operation, excluding office clerical employees, salesmen, managerial employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after October 1, 1965, the Union has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By offering to bargain directly and individually with the employees, bypassing the Union, by its unilateral actions without notice to or consultation with the Union as found herein, and by refusing to bargain collectively with the Union at all times on and after October 1, 1965, Respondent engaged in unfair labor prac- tices proscribed by Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below and which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the nature and extent of Respondent's conduct and for reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Vaughan-Hicks Buick Co., its officers , agents, representatives, successors, and -assigns, shall: 1. Cease and desist from: (a) Interrogating coercively employees concerning their union membership, activities, and desires. (b) Warning employees that because of their organizational activities they may be unable to obtain employment in the State. (c) Warning employees that their earnings will be reduced if the Union should come in. (d). Acting unilaterally, without notice to or consultation with the Union, in granting wage increases, in changing the, mode of payment, and in improving work- ing conditions of the employees. (e) Offering to bargain directly and individually with the employees, bypassing the Union as their duly chosen bargaining representative. VAUGHAN-HICKS BUICK CO. 599 (f) Refusing to bargain with the Union as the collective-bargaining representa- tive of the employees in the appropriate unit. (g) Discouraging membership in International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by refusing to reinstate employees upon their application following termination of a strike, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist said International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action: (a) Offer to Willie F. Abshure, George Cornatzar, Delmar Newton, Otis Parker, Don Webb, Robert L. Childers, Ralph Eudy, Charles O'Bryant, D. E. Preston, John T. Weber, and Phillip Beavers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from October 26, 1965 (October 28, 1965, in the case of Phillip Beavers), to the date of the offer of reinstatement, less his said earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify the said Willie F. Abshure, George Cornatzar, Delmar Newton, Otis Parker, Don Webb, Robert L. Childers, Ralph Eudy, Charles O'Bryant, D. E. Preston, John T. Weber, and Phillip Beavers if presently serving in the Armed Forces of the United States of their right to full 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 analyze the amounts of backpay due under these recommendations. (d) Bargain collectively, upon request, with the Union concerning rates of pay, wages, hours of employment, or other conditions of employment of its employees in the appropriate unit herein found. (e) Post in its offices, showroom, and shop at Little Rock, Arkansas, copies of the attached notice marked Appendix A.8 Copies of said notice to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.9 IT IS FURTHER RECOMMENDED that the petition in Case 26-RC-2507 be dismissed and that all proceedings held in connection therewith be vacated. IIn the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a 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." '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 the Respondent has taken to comply herewith." 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 NOT interrogate coercively our employees concerning their union membership, activities, or desires. WE WILL NOT warn employees that because of their organizational activities they may be unable to obtain employment in the State. WE WILL NOT warn employees that their earnings will be reduced if the Union should come in. WE WILL NOT act unilaterally, without notice to or consultation with the Union, in granting wage increases , in changing the mode of payment, or in improving working conditions of the employees. WE WILL NOT offer to bargain directly and individually with the employees, bypassing the Union as their duly chosen bargaining representative. WE WILL NOT discourage membership in International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor orga- nization , by refusing to reinstate employees upon their application following the termination of a strike, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form, join, or assist said International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to Willie F. Abshure , George Cornatzar, Delmar Newton, Otis Parker, Don Webb. Robert L. Childers, Ralph Eudy, Charles O'Bryant, D. E. Preston, John T. Weber, and Phillip Beavers immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered as a result of our discrimination against them in the manner provided in the Trial Examiner 's Decision. WE WILL bargain collectively, upon request, with International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representa- tive of our employees in the appropriate unit, concerning rates of pay, wages, hours of employment , and other conditions of employment. The appropriate unit is: All service department employees , including parts department employ- ees, at our Little Rock , Arkansas, operation, excluding office clerical employees, salesmen, managerial employees, guards, watchmen, and supervisors as defined in the Act. All our employees are free to become or remain , or refrain from becoming or remaining, members of the above-named or any other labor organization. VAUGHAN-HICKS BUIC% Co., Employer. Dated ------------------- By------------------------------------------- (Representative) (Title) NOTE-Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full 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. 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 provisions , they may communicate directly with the Board's Regional Office, 746 Federal Office Building , 167 North Main Street, Memphis , Tennessee 38103, Telephone 534-3161.