Darby Cadillac, Inc.

DARBY CADILLAC, INC. Darby Cadillac, Inc. and Lodge 850, International Association of Machinists and Aerospace Workers, AFL-CIO Darby Cadillac, Inc. and Art J. Lancaster, An In- dividual, Petitioner and International Association of Machinists and Aerospace Workers , Lodge 850, AFL-CIO. Cases 16-CA-2989 and 16-RD-409 January 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 24, 1967, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled consolidated proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that Respond- ent had not engaged in certain other unfair labor practices, and recommended dismissal of these al- legations of the complaint. He further found that the unfair labor practices, which occurred during the critical preelection period, interfered with the decertification election held in Case 16-RD-409, and recommended that it be set aside. Thereafter, exceptions to the Trial Examiner's Decision and a supporting brief were filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent , Darby Cadillac, Inc., Oklahoma City, Oklahoma, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election held on March 15 , 1967, among Respondent's employees at its Oklahoma City, Oklahoma, location , be, and it hereby is, set aside. 315 [Direction of Second Election' omitted from publication. ] I An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 16 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No ex- tension of time to file this list shall be granted by the Regional Director ex- cept in extraordinary circumstances Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc , 156 NLRB 1236. TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION SAMUEL M. SINGER, Trial Examiner: These are con- solidated cases heard before me in Oklahoma City, Oklahoma, on September 6, 1967.1 In Case 16-CA-2989 the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on June 27, based on charges filed by Lodge 850 (the Union) on May 10. The complaint alleged that Respondent violated Section 8(a)(1) and (3) of the Act through interference, restraint, and coercion, including in- terrogation and promises of benefits; and by unlawfully discharging an employee for protected concerted and union activities. Case 16-RD-409 arises out of a decertification elec- tion conducted by the Regional Director among Respond- ent's employees on March 15, which the Union lost by a vote of 22 to 20 (with 2 ballots challenged). The Union's objections to the election, filed March, 20, were in- vestigated by the Regional Director, who on May 19 is- sued his Report on Objections recommending the over- ruling of three objections and a hearing on two others. No exceptions having been filed to the Regional Director's report, the Board on June 5 adopted its recommenda- tions. In view of identity of issues raised in the represen- tation and unfair labor practice cases, the proceedings were consolidated for hearing before a Trial Examiner. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce relevant evidence. Briefs were filed by General Counsel and Respondent. Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZA- TION INVOLVED Respondent, an Oklahoma corporation with its office and place of business in Oklahoma City, Oklahoma, is en- gaged in selling and servicing automobiles. During the past year, a representative period, Respondent received goods valued in excess of $50,000, directly from points outside Oklahoma. During the same year , Respondent had a gross volume of business from sales and servicing Dates are 1967 throughout unless otherwise stated. ' Transcript corrected by my order, on notice , dated October 4 By agreement of the parties at the hearing, Respondent's name was corrected to read as it now appears in the caption. 169 NLRB No. 52 316 DECISIONS OF NATIONAL of automobiles in excess of $500,000. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act. At all material times, the Union has been and is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion The Union was certified as the statutory bargaining representative of Respondent's employees on February 17, 1966. Although the parties thereafter met on various occasions to negotiate a contract, they were unable to reach agreement. In February 1967, employee Lancaster circulated a petition to decertify the Union. As previously noted, the Union lost the March 15 decertification elec- tion by a 22-to-20 vote, and the Union then filed election objections. General Counsel relies on two preelection in- cidents to establish the complaint allegations of inter- ference, restraint, and coercion. 1. The March 8 incident In compliance with an amendment to the Wage and Hour Law applicable to car dealers, Respondent in February 1967 began to pay its employees on an hourly, biweekly, instead of semimonthly, basis. Since this changed method of payment caused "confusion" among the employees, some went to the company office for ex- planation. Employee Byrd testified that after seeking clarification of the matter at the union hall, he was called to the office by Office Manager Padgett who told him, "Slater [Byrd], if you [want] to know anything, anything of that sort, come in and ask us. We are always ready to help you and always ready to answer your questions and help you with your problems." Byrd replied, "Well, the reason that this came about at the Hall [was that] a man [at the hall] asked me how much was I making per hour and I couldn't give him any definite answer ...." Byrd admitted that after Padgett's explanation he knew "somewhat" more about his wage computation; that he had gone to Padgett's office on prior occasions to consult on wage matters; and that this meeting was "about the briefest" of all he had had. He testified that he could not "recall" Padgett asking him why he went to the Union. Padgett testified that he had spoken to Byrd about his paycheck on several prior occasions; that he called Byrd in his office on March 8 in response to a message Byrd had left with his secretary about seeing him regarding his pay; that at the outset of the March 8 meeting Byrd ex- plained that "he didn't mean to go to an outsider, but one of the men at the Hall had told him he should have his paycheck checked over again for the hourly rate"; and that after advising Byrd that he was at liberty to heck the matter "anywhere he wanted," he (Padgett) agreed to "go over with him again on it and help him to understand" his pay computation. Padgett denied questioning Byrd about his union membership, sympathies, or activities. 3 Prior to April I, Respondent's employees worked half days on al- ternate Saturdays . Soon after the election (around April 1), however, Darby announced that the Company would discontinue all Saturday work since his chief competitor, a nearby Lincoln car agency, began closing on, that day. Darby also announced that Respondent's mechanics would receive a raise- an increase in commissions from 40 to 45 percent- in line with similar increases given by competitors. LABOR RELATIONS BOARD Padgett's testimony was forthright, straightforward, and carried the ring of truth. In any event, Padgett im- pressed me as a more reliable and credible witness than Byrd, and I credit his version of the incident. I find that the record does not support the allegation in the complaint that Respondent (through Padgett) unlaw- fully interrogated an employee concerning his union membership, activities, and desires. 2. The March 14 incident On March 14, the day before the decertification elec- tion, employees Allerman, Edwards, and Wilburn were standing by the coffee urn discussing the Union. Aller- man testified that when he mentioned that he "wished Saturday would come along," Body Shop Foreman Lunn, who happened to be nearby and overheard the remark, stated that if the employees "should vote `no' on the Union ... you'll get your Saturday off." Edwards testified that in response to Wilburn's question "if he voted no in the Union what it meant," Lunn said "if we vote this union out, then everybody will get an increase in wages." Wilburn quoted Lunn as saying that if they turned down the Union, "Mr. Darby [the owner] would give us all a raise and every Saturday off."3 Lunn denied the remarks attributed to him by the em- ployees. He testified that he did not normally drink coffee around 6 p.m., closing time (the time fixed by one of General Counsel's witnesses), thereby attempting to negate that he had any reason to be at the site of the discussion (the coffee urn). He also testified that he had no "authority" to grant or promise the type of benefits mentioned by the employees. I credit the testimony of General Counsel's witnesses rather than that of Lunn. Allerman and Edwards im- pressed me as sincere and disinterested witnesses, as op- posed to Lunn, an interested witness whose conduct was directly in issue. Edwards is no longer employed by Respondent, having quit its employ, and there is no indi- cation whatsoever that his leaving was accompanied by ill feeling against the Company. Nor is there any reason to believe that Allerman, still employed by Respondent, would jeopardize his employment by fabrication under oath concerning his employer.' I find that Foreman Lunn's March 14 statement to three employees that if they voted out the Union in the forthcoming election they would be given every Saturday off and would receive wage increases, constituted unlaw- ful interference, restraint, and coercion. Lunn's statement coerced the employees in their unfettered exercise of their rights to freely decide whether they wished con- tinued representation by the Union. It was especially coercive because made on the eve of the decertification election. The fact that Lunn's statement may have been made "contrary to the orders of the company manager and to the express policy of the Company" is of no mo- ment, since it does not appear that these alleged orders were ever communicated to the employees. Solvay Process Co. v. N.L.R.B., 117 F.2d 83, 85 (C.A. 5). Nor 4 In making my credibility findings, I have not overlooked the fact that in quoting Foreman Lunn, Allerman referred only to promised Saturday benefits and Edwards to only promised wage increases. I regard the failure of each employee to mention both benefits as due to lapse of memory, a condition not uncommon among honest witnesses . I also credit Wilburn on this aspect of the case notwithstanding findings elsewhere on another matter concerning him directly (intro, section B). DARBY CADILLAC, INC. 317 is there any evidence that Respondent had taken any steps to repudiate the statements of the foreman. Solo Cup Company, 114 NLRB 121 , 123, enfd. 237 F.2d 521 (C.A. 8). Furthermore, the fact that Lunn directed the work of only one of the three employees (i.e., Wilburn) is not determinative , since Lunn's supervisory status - known to all these employees - gave his statements the stamp of authority. I conclude that Respondent's election eve promises of benefits conditioned on repudiation of the Union were calculated to, and had the effect of, unfairly interfering with the employees ' free choice of bargaining representa- tive, in violation of Section 8(a)(1) of the Act. B. The Discharge of Wilburn Wilburn was hired by the Company in 1962 as a new- car polisher and worked in that capacity until September 1966 when he was assigned to clean used cars.5 His im- mediate supervisor on both jobs was Body Shop Foreman Lunn. Wilburn's work was satisfactory and was "often" praised by management. Wilburn joined the Union "in early 1966" and was a member of its negotiating committee. When the Board agent investigating the Union's objections to the March 15 decertification election appeared in the plant area on April 27, Wilburn solicited several employees to speak to him. Respondent contends that it discharged Wilburn on May 4 after learning that he had attempted to induce one such employee (McCulloch) to testify adversely but false- ly to the Board agent. McCulloch worked for Respondent for 9 or 10 months in the same (polish) department as Wilburn. Although a union member while employed elsewhere, he never joined the Union at Respondent's. He voted in the March 15 election. As witness for Respondent, McCulloch testified that around 11:30 a.m. on April 27, Wilburn ap- proached him at his work station and talked to him until around noon lunchtime. According to McCulloch, Wil- burn asked him "to join in with him and help him to get something against the Company so they could take them to court." Amplifying, McCulloch testified that Wilburn explained that he "had been informed someone had been paid to vote"; that Wilburn said he needed "help" to "take the Company to court"; that Wilburn asked him for a statement that he (McCulloch) "was paid to vote for the Company"; that after McCulloch denied being "paid by anybody," Wilburn told him if he made they suggested ac- cusation against the Company he "would be given high wages and ... would be given a generous fee"; and that when McCulloch persisted in his refusal to give the requested statement, Wilburn "tried to explain to [him] the purpose of this get-together," indicating that if they could "get things working against the Company," they would be getting higher wages and improved benefits. Wilburn was not recalled to rebut or explain this testimony by McCulloch although he was present during the testimony and was available to controvert it. As General Counsel's witness he testified on direct examina- tion (prior to McCulloch's testimony) only in general terms to the effect that he had asked employees "if they want to go" to the Board agent; that he himself did not know "what [the Board agent] want[ed]"; and that he had not "bribed" anyone to give the Board agent any statement. Although Wilburn had named seven em- ployees (including McCulloch) whom he had asked to see the Board agent and specifically recalled the substance of his conversation with two, he did not describe the circum- stances under which he spoke to McCulloch nor the sub- stance of the conversation with him. Particularly in view of Wilburn's failure to rebut McCulloch's testimony, the glaring contrast between the latter's detailed factual ac- count and Wilburn's generalized testimony, and the ap- parent lack of personal interest of McCulloch in the out- come of the proceeding, I credit the testimony of McCul- loch rather than that of Wilburn. McCulloch impressed me as a simple, unsophisticated individual not likely to fabricate testimony.6 Later that day (April 27), McCulloch reported the in- cident to Service Manager Mayfield, who in turn notified his superior, General Manager Grier, who advised Com- pany Attorney Soule'. On May 3, McCulloch gave Soule' a detailed sworn statement about the April 27 incident. When Wilburn reported to work the next morning around 8 a.m., he was directed to Grier's office.7 Mayfield opened the May 4 interview in Grier's office by saying, "Lee [Wilburn], you have been accused of at- tempting to bribe an employee of this Company." When Wilburn denied it, Mayfield warned that "it is a rather serious accusation." Wilburn "would not talk about it" and Mayfield said that "under the circumstances [he] had no alternative but to terminate" him. Wilburn was then paid off.8 Based on the foregoing and the entire record, I find that Respondent discharged Wilburn on May 4 in the good- faith belief (based on information obtained from em- ployee McCulloch) that Wilburn had attempted to induce an employee to falsify testimony to a Board agent in- vestigating objections to the decertification election; that Wilburn in fact had made such an attempt (as established by the credited testimony of McCulloch);9 and that neither Wilburn's Union nor protected concerted activity As new-car polisher Wilburn cleaned, placed new carpets in, and otherwise readied new cars for polishing As member of "the rough gang" cleaning used cars, Wilburn's duties included "rubbing out new paint, fresh paint" which Wilburn describes as "more difficult" and tedious than servicing new cars. Contrary to General Counsel's suggestion, the record does not support the inference that Wilburn's transfer during the 1966 bar- gaining negotiations was motivated by discriminatory reasons. The sub- stantially uncontradicted credible evidence (including Respondent's records and testimony of Officials Padgett and Mayfield) shows that although Wilburn was scheduled to return from his 2-week vacation on August 30, he did not return until September 6; that having received no word for Wilburn's delay in returning and being "pressed very sorely to get new cars polished," Mayfield assigned another employee to Wilburn's job; and that when Wilburn finally did report back to work he was trans- ferred to used-car work without any reduction in pay Wilburn's attempted explanation for his admitted "little" delay in returning from his vacation was unpersuasive 8 There is no evidence that Wilburn had acted with the Union's knowledge or approval, express or implied. Nor does Respondent claim that his conduct is imputable to the Union. ' The above findings are based on the composite and mutually cor- roborative testimony of Mayfield, Grier, and McCulloch. 3 Based on the mutually corroborative testimony of Mayfield and Grier. I do not credit Wilburn's testimony to the extent inconsistent with these findings. Wilburn testified that he did not "argue" with the company offi- cials when accused of "bribing," explaining, "Well, I thought maybe they might be mad at me with the union activity or something, and it seemed like a shock to me, and I know I hadn't even given it a thought." 9 In view of this finding it matters not that Wilburn's activity (soliciting employees to speak to the Board agent concerning Respondent's election conduct) constituted a protected concerted activity. See N.L.R B v. Burnup & Sims, Inc., 379 U S 21.23. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a motivating factor in Respondent's decision to ter- minate him. III. CONDUCT AFFECTING THE RESULTS OF THE MARCH 15 ELECTION As noted at the outset, Case 16-RD-409 was con- solidated with the complaint case for disposition of identi- cal issues (acts of interference , restraint, and coercion) in- volved in both proceedings. In view of my finding that Respondent (through Foreman Lunn) violated Section 8(a)(1) of the Act by coercively promising employees that they would be off work on all Saturdays and would receive wage increases if they voted out the Union in the pending decertification election, I likewise find that such conduct also interfered with the exercise of a free and un- trammeled choice in the March 15 election. Contrary to Respondent's contention, Lunn's remarks were not so isolated as to afford insufficient ground for setting aside the election. To begin with, the remarks were directed to 3 of the 44-unit employees and were made on the eve of the election which the Union lost by only two votes. Furthermore , it is reasonable to assume that a statement of this type would be spread around by the employees to whom made. See Frankel Associates, Inc., 146 NLRB 1556, 1557; Joslyn Stainless Steels, 167 NLRB 353, fn. 23. Cf. J. C. Penney v. N.L.R.B., [384 F.2d 479, 486] 66 LRRM 2069, 2074 (C.A. 10).10 I find accordingly and therefore recommend the sustaining of Objections 1 and 2 (involving the promised benefits above described) on which a hearing was directed, and it is further recommended that the election be set aside.'1 CONCLUSIONS OF LAW 1. By promising benefits to employees if they voted out the Union in the pending decertification election, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7, in violation of Section 8(a)(1), of the Act. 2. The aforesaid violation is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. It has not been established that Respondent has vio- lated Section 8(a)(1) and (3) of the Act (a) by coercively interrogating employees concerning union sympathies and activities or (b) by discriminatorily discharging em- ployee Wilburn because of protected concerted or union activity. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend the customary cease- and-desist order in cases of this nature, designed to effec- tuate the policies of the Act. I am also recommending that Union Objections 1 and 2 to the election of March 15, 1967, in Case 16-RD-409 be sustained, that said election be set aside, and that said case be remanded to the Regional Director for Region 16 to conduct a new election at such time as he deems cir- cumstances permit free choice of bargaining representa- tives. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this con- solidated proceeding, and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER Darby Cadillac, Inc., Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from promising employees benefits in order to dissuade them from continued representation by their chosen bargaining representative or to induce or encourage them to refrain from union ad- herence or activity. 2. Post at its store in Oklahoma City, Oklahoma, co- pies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.13 1 FURTHER RECOMMEND that the complaint in Case 16-CA-2989 be and the same is hereby dismissed as to all violations alleged but not herein found; and that the election held on March 15, 1967, in Case 16-RD-409 be set aside and that said case be remanded to the Regional Director for Region 16 to conduct a new election at such time as he deems that circumstances permit free choice of a bargaining representative.14 10 Respondent in its brief so concedes , stating (p. 10), "If the conversa- tion had in fact occurred , it is reasonable to expect that news of a proposed wage increase, coupled with the news of no more Saturday work, would at once be circulated by the men who claimed to have heard the promise." Respondent's basic position - that Lunn did not make the statement attributed to him - raises a question of credibility here resolved adversely to Respondent. 11 The allegation in the complaint that Respondent (through its official Padgett) unlawfully questioned an employee on March 8, herein found un- supported by the record, was not advanced objection to the election. 11 In 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 13 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 Re- spondent has taken to comply herewith." 14 In the event Respondent refuses or fails to comply with the terms of the order in Case 16-CA-2989, I recommend that the Regional Director be authorized to conduct the new election herein recommended, upon written request of the Union. Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 554, fn. 9. DARBY CADILLAC, INC. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that-, WE WILL NOT promise you benefits in order to dis- suade you from voting for a union in any election conducted by the National Labor Relations Board; nor shall we promise you benefits in order to induce you to refrain from union adherence or activity. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce you in the exercise of any of your rights under the Act. Dated By DARBY CADILLAC, INC. (Employer) 319 (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 provisions , they may communicate directly with the Board's Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 3 34-292 1.