Kohl Motors, Inc.

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kohl Motors, Inc. and Local Union No. 445 , Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 3- CA-3815 and 3-RM-427 August 27, 1970 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On March 17, 1970, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceed- ing, finding that the Respondent had unlawfully inter- rogated two employees but that it had not engaged in the other unfair labor practices alleged in the complaint and recommending that no formal cease and desist order should issue and that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. In addition, he recom- mended the overruling of the objections to the election in Case 3-RM-427. Thereafter, the General Counsel 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. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes cast in the election has not been cast for Local Union No. 445, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and that said labor organization is not the exclusive bargaining representative of the employ- ees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before me on January 5, 6, and 7, 1970, at Poughkeepsie, New York. This is a consolidated case, in Case 3-CA-3815 the General Counsel issued a complaint on September 9, 1969, based on a charge filed on June 25, 1969, by Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, against Kohl Motors, Inc, herein called the Respondent or the Company. In Case 3-RM-427 the Board conducted an election on June 18, 1969, and the Union thereafter filed objections to the election, on August 29, 1969, the Regional Director directed a hearing on the objections. The issues arising from both cases are whether the Company improperly interfered with a free election, and whether it violated Section 8(a)(1) and (5) of the Act. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses I make the following:' FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kohl Motors, Inc., a New York corporation, maintains its principal office and place of business in Poughkeepsie, New York, where it is engaged in the sale of automobiles and related products, and in the repair and servicing of such vehicles. During the past year the Company sold and distributed products of a gross value in excess of $500,000. During the same period it received goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from States other than the State of New York. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. ' After the close of the hearing both the General Counsel and the Respondent filed motions to correct the transcript, in all respects but one the suggested corrections relate to obvious typographical errors Both motions are hereby granted, and the record corrected accordingly, with a single exception The General Counsel's request to alter 1 17 on p 169 of the transcript is denied 185 NLRB No. 69 KOHL MOTORS, INC 325 III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case The essential question in this case is whether the Respond- ent so conducted itself during the Union's organizational campaign among its employees as to have violated the statute to an extent, and in such a manner, as to warrant a Board order to bargain now with the Union as the exclusive representative of all the employees . Within a 4-day period-May 16 through May 19, 1969-20 conceded- ly rank-and-file workers, out of the approximately 31 employees in the bargaining unit , signed regular authoriza- tion cards in favor of the Union . Another signed on May 21 and two more on May 23 On the 22d the Union demanded recognition and the Respondent refused, on the ground it doubted the Union had been authorized by enough employees. About 17 employees struck on Monday, May 26, and picketing began . On the same day the Company filed a petition with the Board's Regional Director requesting an election to test the Union 's assertion of majority repre- sentative status . As the week wore on employees started to return to work . On the morning of Monday, June 2, the Union formally advised the Company that the strike had ended and offered to return all the strikers to work. They resumed work on Tuesday morning. A Stipulation for Certification Upon Consent Election was signed by all parties on Rine 9 and the Regional Director conducted a secret election on June 18 The Union lost by a vote of 21 to 6 A week later the Union filed both objections to the election , and a refusal-to-bargain charge. There is a logical and inseparable interrelationship between the two consolidated cases in this proceeding. If the representation case be considered out of the total context-as though no unfair labor practice charge had ever been filed and, of course, no complaint issued-all that would have to be decided is whether there is merit in the Union's objection to the election , this means that either the election must be set aside and a new one held, or the results adverse to the Union must stand , with the Regional Director certifying the final results. Appraising the present posture of the representation case aspect of the consolidated hearing in this light, two rules of law apply, the first established by the Board and the second established by the statute . The only conduct of the employer or its agents that may be considered in support of a union's objection to any Board election is that which occurred between the time the petition was filed and the election was held 2 If it is found that within this circumscribed period there was interference sufficient to put in question the reliability of the results of the balloting, a new election, of course, is held If the objections do not warrant setting the election aside, there can be no second election conducted by the Board during the next 12-month period 3 In this latter event the question arises whether the employer may, as did the Respondent here, alter conditions of employment by direct dealings with its employees without regard to the union which had previously been authorized but later rejected in the Board-conducted election Turning to the complaint case aspect of this proceeding, and assuming for the moment that there had not been any representation petition filed-more importantly, assum- ing there had never been an election held-other principles of case law would apply. There would be no limit upon the question-temporal or otherwise-of employer conduct to be evaluated . In classic form the first inquiry would be whether a majority of the employees in an appropriate unit did in fact authorize the charging union-in written form-to bargain on their behalf. When the proper majority status is established, and a demand and refusal proved, the next question is whether the refusal to bargain constitut- ed a violation of Section 8(a)(5) of the Act, or that the evidence shows the employer willfully rejected the collective- bargaining principle Of special pertinence to this case, however, is a third question presented whenever there has been an illegal refusal to bargain , or a violation of Section 8(a)(5). Were the unfair labor practices committed by the employer of such a nature as to justify an order by the Board-as a remedial measure-that it proceed to bargain on the basis of the majority established by signed authoriza- tion cards, without the preliminary necessity of a secret election among the employees? See N.L.R B v. Gissel Pack- ing Co., 395 U S 575. The relevance in the case at bar of all the legal principles set out above can best be appreciated if the events brought to light at the hearing be considered in coherent sequence. B Appropriate Unit, Union Authorization; and Majority Status The complaint alleges, the answer admits, and I find that all full-time and regular part -time production and maintenance employees at the employer 's establishment in Poughkeepsie, New York, including all partsmen, mechan- ics, body shop employees , new and used car get-ready men, utility men and plant clericals, excluding all salesmen, office clerical 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. The main function of this group is to service and repair automobiles and trucks; new cars received for sale are cleaned and otherwise prepared for delivery . Used cars accepted in trade are restored before resale. Warranties on new cars sold are honored in the service and repair shops, where the mechanics and specialists repair parts, work on defective machines, lubricate, take care of body damage, and generally do service work 'Goodyear Tire and Rubber Co, 138 NLRB 453 ' Sec 9(c)(3) "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held " Nine employees signed cards on May 16, 1969, authorizing the Union to represent them and to bargain forthwith on their behalf Floyd Hornbeck, Philip Silvernail, Frank Wyant, Clifford Scism, Hans Schneider, Raymond Martig- 326 DECISIONS OF NAl IONAL LABOR RELATIONS BOARD netti, John Sherremetis, John Parole, and Linnie Parker." Six others signed cards on May 17: Edward Fryar, James Palmatier, Walter Cantela, Douglas Slater, Joseph Sles, and Roger Harris Five more signed on May 19• Joe Herring, Harold Penny, Bernard Kebler, Kenneth Bishop, and Wil- liam Pine. Allen Kruel signed on May 21 and Robert Perkins and Ned Johnson signed on May 23. This is a total of 23 authorization cards. Fifteen of these men appeared at the hearing and testified directly to having signed the cards received in evidence There was direct testimony by other witnesses that they personally saw six others apply their signatures to cards- this with respect to the cards of Parker, Paroli, Sles, Penny, Johnson, and Cantela The card of Martignetti was authenti- cated by Charles Campbell, the union organizer, who testi- fied he distributed cards at a union meeting, 'including one to Martignetti, and that in a matter of minutes Martig- netti returned his card to the organizer signed. The 23rd card is that of Kebler; to authenticate his signature the General Counsel placed into evidence two New York State- Employee's Withholding Exemption Certificates, furnished by the Respondent, bearing the employee's signature, one dated February 1969 and one dated January 1970. Compari- son of these signatures and that appearing on the card in evidence proves authenticity of Kebler's signature on the authorization card. I find that all 23 employees mentioned thus far authorized the Union to represent them in collective bargaining, 21 by May 21, 1969, and 2 others on May 23 ' A document received in evidence by stipulation of the parties shows that on May 22 and 23, 1969, there were 32 persons at work within the agreed bargaining unit, all but 2 (Kusmuk and Asper, their supervisory status disputed) rank-and-file employees. All 23 employees who ' All these cards, as well as those mentioned hereafter in this report, read as follows INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 445 Headquarters 2 Post Street, Yonkers, New York Authorization for Representation Under the National l ahor Relations Ait I, the undersigned , employee of the Name of Company I mployed as Job lisle Hereby authorize the International Brotherhood of Teamsters , Local 445, to represent me and , in my behalf, for the purpose of collective bargaining to negotiate and con elude all agreements in respect to rates of pay wages, hours of employment , or other conditions of employment in accordance with the provisions of the National Labor Relations Act The full power and authority to ad for the undersigned as described herein supersedes any power or authority hereto. fore given to any person , or organization to represent me and shall remain in full force and effect for one year from date and the re' fter subject to thirty ( 30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein (Signature of I mployee) Home Address Date ' There is a 24th card signed by Milomir Kusmuk, according to credible evidence The General Counsel disputes the Respondent's conten- tion that Kusmuk is a supervisor as defined in the Act There is no occasion to pass upon the validity of Kusmuk's card in this case as the Union's majority status would in no event be affected thereby signed cards as set out here are listed on the document Accordingly I find that on May 22 the Union represented a majority of the employees in the bargaining of the Respondent's employees in the appropriate unit within the meaning of Section 9(a) of the Act C. Alleged Supervisory Status of Philip Asper Both the Union's objections to the election and the complaint rest in substantial part upon antiunion and coercive statements charged to Philip Asper, who works as a service writer in the auto service and repair parts of the overall premises. The contention that he speaks for management is based primarily upon the fact that he goes about the place with the word "foreman" written on his shirt, and that in an affidavit given during the investigation stage of the proceeding, Howard Kohl, the owner and operating head of the Company, included Asper's name among others as "supervisors," who "can recommend hiring or firing employees," "supervise employees, and assign work to various employees." The record evidence does not support the requested find- ing that Asper is a supervisor. Neither another man's opinion (a superintendent's conclusionary statement of opin- ion, standing alone or in conflict with objective facts, would hardly sustain challenges to a lower foreman's ballot), nor a label (a rose by any other name . . . etc.) can suffice to exclude an ordinary workman from the coverage and protection of the Act as an employee. It is the facts of what the man does during the working day in his relations vis-a-vis the other employees that illumine and determine the question whether he falls within the definition of supervi- sor set out in Section 2(11) of the statute. Asper has to be in the shop before others to meet the first customers as they arrive, and therefore starts work at 7 30 a.m. He stops later, after most of the production workmen have left, because he deals with customers and must look to delivery of cars at the end of the day. He is therefore salaried, and not on the clock. He therefore also initials the timecards of the mechanics, or others, when they have occasion to do overtime Someone must attest to the fact this other work is performed for it has to be paid Asper is there early and late, so he does this. At times his superior, who also has long hours, does it Sometimes the bookkeeper sees the people at work and initials the cards. Above his salary, Asper receives a bonus- forty percent of one percent of the gross amount paid by customers pursuant to the work orders he takes from them when they bring their cars into the shop for work repair. The more the customers pay-or the more he sells them- the more he earns. The mechanics-who constitute the bulk of the more skilled and therefore higher paid work- men-also receive a bonus, depending upon what the cus- tomers pay for the work which they do on the cars. There is nothing in the statute which says that a bonus compensation arrangement, or the function of initialing overtime cards, mark a supervisor. Asper spends most of the morning filling out customer orders as the cars are brought in for service. He is an experienced mechanic and understands the business. Part of his responsibility is to reduce the customers' complaints KOHL MOTORS, INC 327 to words which will both faithfully reflect the customers' wants and be intelligible to the workmen who will later have to perform the services. The men to whom he then distributes the orders, all mechanics and lubrication men, are each specialized in one area or another-transmission, rear end, body shop, air-conditioning, front end, air and water leaks, lubrication, etc. He knows which men are qualified and designated to do certain work, and therefore "assigns" the jobs in accordance with such qualitative selec- tion. It is this assignment of work that is said to be the prime evidence of his supervisory status. For the rest, Asper's duty is to maintain contact with the customers throughout the day, by telephone, to advise them in advance, and to obtain their approval, of unexpected increased costs for repair of their cars, to answer their inquiries as to promptness of promised delivery, to advise them that jobs may not be completed as initially expected, to put at rest any other problems that may apse with the customers, and to calculate costs and bills To accomplish all of this he is in constant touch with the shop mechanics, to inquire how much time a particular job will take, to learn if additional work is necessary, and to check on scheduled delivery of cars. It was not shown that he in any way passes upon the quality of their performance, instructs them, or pressures them into finishing an assign- ment by a particular hour. He does no manual work himself during the scheduled workday, but after regular hours, if some small final adjustment or tuneup will complete a job for immediate delivery, he finishes off a car himself. On occasion his superior, Robert Clearly, the service manager, or the plant superintendent, James Garafolo, will tell him some overtime work should be done and that he, Asper, should search among the mechanics to see which if any is willing to stay. Asper then inquires down the line, successively asking the men if they are agreeable. They know the decisions are made higher up, they do as they wish, and they are under no duty to oblige him. He has no power to hire or discharge employees, or to alter their employment conditions in any way, he does not attend the supervisor meetings An air-conditioning repairman named Kurt Smith, an old friend of Asper's, testified that one day while he was in the shop to buy certain parts, the service writer asked was he without work and if so did he wish to join the Respondent Smith asked what the offer was, Asper told him, and Smith answered he would think about it. A week later he tele- phoned Asper, said he would except, and reported to work a day or two later upon Asper's approval. It was then shown that Smith had worked as an air-conditioning special- ist for a company named Eddy's Esso, that in this position he worked on such problems on automobiles from the Respondent's shop contracted out to Eddy's Esso, that Respondent's superintendent, Garafolo, knew of Smith's ability and instructed Asper to inquire whether Smith would come to work, and even told Asper what the rate of pay would be. In the circumstances this single incident is not enough to prove Asper either has independent authori- ty to hire or to effectively recommend hiring. Moreover, Smith himself later recommended a neighbor, one Richard, to Asper as a lubrication man. Asper checked with Garafolo who decided Richard should be hired, and Asper then instructed Smith to advise the new man and dust bring him to work. Richard therafter came after speaking only to his friend Smith, but the fact hardly serves to make Smith a supervisory employee. I find that Asper was not, either at the time of the Union's organizational campaign in the spring of 1969, or at the time of the hearing, a supervisor within the meaning of the Act.6 There is evidence several employees solicited his signature to a union card and that he thought little of the idea. He may even have spoken out freely in favor of direct dealings with the Company instead of collective bargaining . To the extent that the objections to the election rest upon statements voiced by management representatives, it is Asper's conduct that constitutes the major part of the Union's supporting evidence None of it can serve that purpose D. The Objections to the Election It will be recalled that the representation case petition was filed on May 26, a Monday, the first day of the strike and picketing. If the objections are to be sustained, it must be on the basis of interference by management that occurred between that day and June 18, when the election took place. Frank Wyant, a mechanic who quit the Respondent's employ on the second day of the strike, testified to conversations about the Union with two supervi- sors-Thomas Galvin, a sales manager, and Anthony Casale, a shop foreman His talks with Galvin took place before the strike, and therefore of necessity before the filing of the petition. They have nothing to do with the objections On the day after the strike-apparently Tuesday, May 27-Wyant was in a diner restaurant adjacent to the shop location, having coffee with another employee and Foreman Casale He testified Casale asked why the men did not go back to work, and " . said he didn't see why we should be out walking when, if we talked to Mr. Kohl, that he would come to some kind of an agreement that, you know, the Union could not do any more than he could do for us." Later, on cross-examination he added to this version by saying Casale also said: "He couldn't see what we were out there striking for, why didn't we set up a meeting with Mr. Kohl so we could talk it over." This idea-a promise that the Company would oblige the men if they rejected the Union-does not appear in Wyant's earlier affidavit. His final statement was that the correct quotation of Casale's words are those appearing in his affidavit: "I don't see why you guys can't get together with Kohl." Casale recalled the conversation in the diner that day, and denied saying the men should not picket, that they should get together with Kohl, That Kohl would give them more, or that he could arrange an appointment. According to Casale it was Wyant who started the talk by saying. "It is too [obscenity] hot to be walkin on a picket line. . . . I don't give a [obscenity], because I am going on vacation this week, and that is the end of this. [Obscenity] the Union " 6 Fuller Automobile Cc, 88 NLRB 1452 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Casale here. Between the two, Wyant's demeanor as a witness was by far the less impressive , and his testimony in its entirety shows a number of inconsistencies and vacilla- tions. He did in fact leave the Company the very next day, as Casale quoted him . More important , Wyant himself admitted that during the same conversation . "I said the Union wasn't any good, couldn't do anything for us " But this is precisely the attitude indicated in Casale's version of their talk. If then , as Wyant's affidavit reads, Casale did say he could not understand why the men did not "get together" with the owner, it was no more than an innocuous comment invited by Wyant, and by no means instigation by the supervisor to abandon the Union. It was a short-lived strike About 16 or 17 men quit work the first day, some returned during the week and a much smaller number was still out the next Monday morning. By noon the Union called the whole thing off and formally notified the Company It was decided the hour was too late to start work that day and the men returned on time Tuesday morning At 3 or 4 o'clock Monday, after all picketing had ceased , three of the strik- ers-Martignetti , Schneider and Harris-asked to see Kohl personally and he received them in his office. The record strongly shows Martignetti was the most articulate of the three that day; indeed there is indication he was quite a leader in the earlier organizational activities . The four men talked for 2 or 3 hours if not more. By the end of the hearing there was very little disagreement among the witnesses as to what was said The only conflict in testimony goes to one point Someone spoke of a three- man committee to be selected by the men and to voice employee complaints periodically directly to Kohl Was it Kohl, or was it the employees9 Schneider and Harris testified for the government ; Martignetti , still an employee, was not called as a witness. It seems that after the strike had ended, Kohl distributed a form letter to all the striking employees , by mail to those at home and in hand to those still in the nearby area. Some were distributed by a salesman personally to these three men in the nearby diner . Schneider started by saying he, as well as Martignetti and Harris , did not understand the purport of the letter and wanted an explana- tion from Kohl, and that this was why they went to see him Among other things the letter contained a warning against vandalism or pilferage during the strike. Schneider started by saying that after some talk about the letter, Kohl "said we should have come to him first . . . and maybe the Union deal would never have started, and then we started talking about, you know, what we really wanted and we told him . . pension plan and retirement, and so Mr. Kohl told us that he was looking into the matter already, but he couldn't tell us nothing about it right now " Asked did he recall anything else, Schneider added. "I think there was something mentioned about a three- man committee Q. Well, who mentioned it? A. I think Mr Kohl." He could remember nothing else Prodded several times by the General Counsel , and despite leading questions put to him, he kept repeating again and again he recalled nothing more With the Trial Examiner asking the witness to make a better effort, Schneider then added 11 . he [Kohl] said he wouldn 't associate with the Union He said if it has to come right down to it, we have to take an election." And again he said he remembered nothing more. Now the General Counsel placed his affidavit in the witness' hand . With this in front of him, Schneider then added- "He said , he was going to give us, you know, give us pension and set up a different payroll." Haltingly and prodded again, the witness then continued: "He was looking into a pension, but right now he says he couldn't tell us anything about it, because-on account of the Union, he couldn't promise us anything right now " In consequence of persistent cross-examination Schneider then added much more to the 3-hour conversation, matters that started to shed a different light upon the conversation that day First he admitted Kohl said "he was forbidden to grant any pensions," and then added " he said he could make us no promises , and he is not even supposed to be talking to us That isjust the way he said it " Q At any time during this conversation did you, Martignetti-who was the third one? A Floyd- Q. Roger Harris . Did any of you three express dissat- isfaction with the Union? A I don't remember . Something was said about the Union, but I don't remember what was said. I do think Roger said-I don't remember. Q. Please try to search your memory here, because this is fairly important. A. I will I think-if I remember now, I think Roger said-he says, you know, Mr. Kohl, "If your were to come to us and talk these things over with us or something, this would never have happened." TRIAL EXAMINER Who said that? THE WITNESS Roger Harris. Q Do you recall them asking Mr Kohl if it was possible to get out of this Union deal now, or words to that effect? A. I think Ray Martignetti said I'm not sure, I think he said something like that. There was something said like that. Q Did he [Harris] say anything about the Union going to have 300 pickets out there, and they welched on this? A. Yes, Campbell said that. Q. No, I mean, did you or Martignetti or Harris say this to Mr. Kohl? A No. Yes, yes, yes, yes. And finally: A. He [Martignetti] says he was getting tired of Chuck Campbell going away from us . That he did say, yes Q Did he say where Campbell was? A. Yes, he says in the Three Caballeros [a restaurant]. As he went on Schneider recalled something of more direct relevance to this case Q In this meeting, Mr. Schneider, do you recall complaining about Mr . Garafolo9 KOHL MOTORS, INC A Yes, I think there was something said. Q. What was said? A If I remember right it was said because the way he was handling the employees, one get this, the other gets that, and I think that's what we was talking about. Q. Do you ever recall telling Mr Kohl that, if an employee had a gripe or a complaint and it would go to Garafolo and no further? A Yes,yes Q Did you complain that your gripes or complaints, that you would tell Garafolo, would never get to Mr Kohl? A. Right. We did say that. Q At this time did you or Harris or Martignetti suggest a method where you might speak to Mr. Kohl rather than Garafolo? A I never did, never had the reason to do so but I think Roger Harris did and Martignetti did Q. What did they say? A. Well, everytime they went to Mr Garafolo and didn't get no results, I guess, and so-I don't know if Mr. Kohl found out-he went to see Mr. Kohl about anything or not; I can't say. I couldn't say. Q. No, but, at that meeting with Mr Kohl, did Martignetti or Harris or you suggest a method at this meeting whereby in the future you could speak to Mr. Kohl rather than Mr. Garafolo? A. Yes. In his direct testimony Harris spoke virtually no more than two paragraphs on what went on during that 3- hour meeting with Kohl Q (By Mr. Sheridan) What was the conversation? A. We started talking about the Union, Mr. Kohl, and he showed me some papers about the pension plan that he was going to try to get in and then we was talking about that, and he says that really we didn't have to have the Union come in the shop anyway "if you fellows were to come in and talk to me " He says, we could get a three-man committee going and have one man to be a spokesman and, if anything, you know, that didn't go wrong in the shop, any little problems or something like that, he says, the three-man committee could have come in and talked to me and we could have gotten it straight- ened out. Q. Do you recall anything else that he said? A. No. He says about the, you know, the pay He says, you know, but he couldn't promise us anything about the pay Later, again on cross-examination , Harris was pressed for a more detailed story He insisted he had no recollection whatever of the contents or even subject matter of the original letter which prompted the meeting nor of anything the men asked or Kohl told them in explanation Repeatedly he said he could remember nothing else. Q [By Mr. Durant] The only thing he did mention, though, was the three-man negotiation team? A. Right. Harris continued that there was no talk of employees being dissatisfied with the Union, that the name of Campbell, 329 the union organizer, was never mentioned , that there was no talk of Garafolo (this last denial he repeated more than once). Finally he admitted that the men did ask for more money, benefits, vacations, and that Kohl answered he could make no promises. He closed with repeating it was Kohl, and not Martignetti, who first spoke of "your own little Union in the shop; have a three-man committee, have a spokesman for the group " In its totality Kohl's version of this meeting is consistent with all that Schneider and Harris said with the sole exception that he denied having brought up the subject of a three-man committee, or direct employee spokesman representative, and said instead that it was Martignetti who proposed it. As he recalled it, Martignetti was the lead talker and the major trust of the entire visit was that the men complained of Garafolo's treatment toward them all whenever they went to him for anything-raises generally, complaints of disparate treatment on wages, unfair vacation benefits, etc. Their point was that they could never get past Garafolo to reach Kohl with their complaints "Now, the first thing then out of their mouth is. that basically-and this is Martignetti-Martignetti is talking- he says-you know-'One of the ways we could solve this thing is to have a three-man committee."' Kohl told of how the men spoke of improved benefits they desired, with special emphasis on a pension. He added that, while always repeating he promised them nothing definite, or even whether they would in fact ever be any pension at all, he did tell them he had been looking into the matter many months before, and showed them some old correspondence on the subject between him and an insurance company. I credit Kohl.' So far as this entire proceeding is con- cerned, the only really important point in all this testimony about the poststrike meeting is whether Kohl tried to influence the employees away from the Union and towards direct dealing with him. In the light of admissions by the General Counsel's own witnesses, no persuasive argu- ment can be made that Kohl otherwise said anything improper that day. His story fits logically into the total picture of events In contrast, both Schneider and Harris tried their best to quote him out of context Their repeated insistence that they could remember nothing else, or ever so little, of a 3-hour talk greatly impaired their credibility And Martignetti, who did most of the talking, never did appear as a witness To start with, it was the employees who wished to talk to Kohl, not he who approached them. I do believe he told them straight off their direct appeal to him compromised his position, and that he could not, and should not promise them anything. That they wanted something was obvious, for they had just abandoned ' Kohl himself was less than candid at the hearing His letter of June 2, the one which the employees used as a pretext to talk to him in his office, states he had already received the Union's notice of abandonment of the strike and of intention to return everybody to work And yet he testified that when he returned to the plant soon after noontime with the copies of this letter for distribution, it was "a thunderbolt from the blue" for him to see the picketing had ceased Every case, however, must be decided upon the totality of the record as made, and with due consideration of the comparative demeanor of all the witnesses 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike. Whether Kohl protected himself because his lawyer had correctly advised him, or whether he in fact had no desire to influence the men unlawfully is immaterial. The fact is he made clear there could be no change in their working conditions until the question of union repre- sentation was resolved. That in the circumstances the men would themselves suggest some form of direct dealing with the Respondent is an inference amply supported by related facts. A number of employees testified a reason for turning to the Union in the first instance was because a few weeks earlier a mass appeal to Garafolo for improved benefits had been highhandedly rejected without the men being able to reach Kohl. There is no evidence, nor is it claimed that the men decided to quit the strike because of any conduct on the part of management. Rather, there is much to indicate the men became disillusioned with the entire ven- ture Campbell, the organizer, had promised much support of the strike by union members from other employers, but, as one or two witnesses said, he let the men down in this respect. According to Schneider, Martignetti told Kohl that he had promised 300 pickets and failed to keep his word "I remember we were saying [to Kohl] we were sick and tired of walking up there." Some employees also complained that while they walked the picket line in the heat, Campbell spent too much time refreshing himself in nearby restaurants And early Monday morning, June 2, Campbell was picked up by the police at the picket line because of some pending traffic violation case. Whether the men decided to forget about this aspect of union activi- ties, at least, in consequence of the financial strain on themselves, or because of a more deep-seated disaffection towards the Union, is of little moment What matters is that having decided strike pressure could not win the original aim of forcing their attention upon Kohl via the Union, they could be expected to try another way-by a committee, or a spokesman of some sort. And finally, with Kohl careful, as the employees both conceded, to make it clear he could promise them nothing and intended to stay clear of any illegal involvement at that moment, it is highly unlikely he would suggest a company union right then and there. I find that it was Martignetti's idea and if the owner commented he would prefer dealing with his employees without a union, he had a right to express the thought. I find nothing in what Kohl told these three men on June 2 that tends to support the Union's objections to the election later in the month. In his brief the General Counsel argues that Kohl bought the men off with the promise of a pension . Employee Schneider's testimonial version of the meeting was that when he and his friends started to tell Kohl what they "really wanted," the first item was "pension and retirement " And both he and Harris were clear in their stones that no promises were made to them. The next morning Martignetti invited another employee, Hornbeck, to accompany him, and again asked to see Kohl in his office. And again only Hornbeck testified about their talk, Martignetti's story, the more critical one, still missing . Like that of Schneider and Harris before him, Hornbeck's testimony tells one story on direct examina- tion but sounds quite different in the retelling on cross. He started with the fact Martignetti went in there because he "wanted to talk to him about something that he was talking to us about the night before or something, and Mr Kohl was talking to us about-saying that he figured on a pension plan and stuff for us, and that we didn't know anything about it, of course and then they started saying something about a three-man committee " "I believe Mr. Kohl did . . . he had said he would like to see the shop get together and form a three-man committee, and we could work out the problem out of the shop through that." Hornbeck then continued that Martignetti asked "about raises and different things, and Mr Kohl told us that he couldn't talk about any raises or anything He couldn't promise us anything at this time." Much later in his testimony Hornbeck recalled that Kohl made clear there was no certainty the men would ever receive a pension, that he could promise them nothing, and that no one would be discharged in the event the Union "fell through." Then came the following- Q. (By Mr Nichols) Do you recall whether the subject that Martignetti wanted to talk to Kohl about was how he or how he and any other employees could go about getting out of the Union at that stage? A Well, he had talked about it while we were in there TRIAL EXAMINER Who did? THE WITNESS: Ray Martignetti started talking about it when we were in there TRIAL EXAMINER: He started to talk about it? THE WITNESS: Yes. TRIAL EXAMINER' What did he say? THE WITNESS: Well, he said that-something about the boys had talked to him, and wanted-was wonder- ing if there was any way that they could drop the Union-the exact words, I don't really know what was said, but he wanted to know about-I think that is from when they-if they voted it down, I think that is when Martignetti asked Kohl if the guys would be-if anybody would be fired if it would be-if it was voted down Q. (By Mr. Nichols) Did he also ask Kohl how they could get out of the Union at that point? A During the conversation of the time were in there, I believe he did say it. Kohl denied saying anything about wanting the shop to get together and form a committee, or asking why the men had not come to him directly before joining the Union. He testified Martignetti said he wanted Hornbeck to know what had been discussed the day before, and gave the owner to understand that he, Martignetti, wished to reassure Hornbeck nothing had happened behind his back. It is a fact Hornbeck had been one of the lead organizers Kohl paraphrased what had been said the day before. I credit him as to this conversation also With the activities of the service writer, Asper, and of the owner Kohl, giving no support to the objections, the only remaining evidence said to support the objections are statements attributed to three other supervisors: Cleary, the service writer manager, Galvin, a sales manager, and Casale. Hornbeck testified that about 1 week before the KOHL MOTORS. INC 331 election he and Cleary were in conversation about the Union and the coming election and that as they talked Cleary asked when the election would take place and how Hornbeck felt about it, whether he was "still going to vote for the union " Hornbeck said he probably was known around the place as a union supporter because of an earlier campaign that had taken place . Cleary denied having asked the question, but I believe Hornbeck as to this point, for there was then much talk of the pros and cons of unionism in the plant at the time Harris testified that also shortly before the election Galvin asked him was he for the Union , and that when Harris replied yes, the foreman told him he had been "connected with the unions before, he says, and the Union to-to get in the Union you got to pay $200 , $300, he says, and he says, 'Anytime they want to, you know, to go on strike, they can pull you out and put you on strike."' Galvin did not testify and therefore I believe Harris here. Harris spoke about some talk on the picket line, during the strike, with Casale His only reference to this incident was "he says, 'why don't youse go back to work and go talk to the boss, because he thinks if we go in and talk to him, he could do better than what the Union would do for us "' Casale was called as a witness by the Respondent, he was not asked about this particular conversation with Harris on the picket line, but he did deny talk of the same kind with Wyant, in the nearby dining room at about the same time. He expressly denied telling Wyant the men could get together with Kohl, or that Kohl could give the men what the Union would not, or that an appointment might be arranged E The Merits of the Union 's Objections The heart question in any objections case is whether there was such improper interference by one of the contend- ing parties as to warrant a Board finding that the results of the election cannot be relied upon, and that the employees should therefore be polled again And the issue cannot be determined on the basis of an out-of-context selection of a pinpointed phrase here and there, or by appraisal of only selected incidents without regard to other, equally relevant factors The situation is not entirely unlike a ques- tion of motivation in the discharge of a union-minded employee. Harris, as a witness to lengthy conversations with management representatives , showed a marked inclina- tion to remember only those phrases pointing a finger of guilt towards the Company . What else was said on the picket line when Casale asked why he was walking? In view of Schneider's belated admissions of what happened during the 3-hour meeting on June 2 in Kohl's office, Harris' insistence he could remember nothing but a single incriminating statement by Kohl that day, casts a serious doubt upon all of his testimony . And Casale did credibly deny making the same statements to Wyant that Hams charged to him later And when, after abandoning the strike a few days later, three of the men called on the owner, he promised them nothing but instead made it clear they could not count on him then . It will not do for the Union to argue that Harris and two others turned to Kohl because Casale said the boss was a "regular guy." Had there been anything to Casale's words, Kohl would have given the ex-strikers some comfort , he did not Twenty-three men signed union cards in May but only six voted for the Union a month later . Harris denied there was talk in Kohl's office of the men themselves having a change of heart towards the Union , but he lied. There is evidence that to a certain extent, at least, their dissatisfaction stemmed from other sources. The very fact they voluntarily abandoned the strike is further indication that rejection of the Union later in the election was not the result of employer interference. And Kohl did reassure them, after the foremen , Cleary and Galvin, had questioned one or two employees, that there would be no recrimination after the whole thing was over , either way. In my judgment all that was shown to have occurred between the filing of the petition and the day of the election is not enough to support the objections. I find that there is no merit in the objections and that the results of the election must stand. F The Unfair Labor Practices Violation 1. Section 8(a)(1) The complaint alleges violations of Section 8(a)(1) and (5) of the Act. I find that Foreman Cleary's questioning of Hornbeck as to his union sentiments , and Foreman Galvin's like questioning addressed to Harris, constituted violations of Section 8(a)(1) A day or two after the card signing started, but before the strike, Harris was road testing a car with Garafolo, the service coordinator According to Harris, Garafolo asked had he signed a card, and when Harris answer yes, Garafolo said - "No Union or nobody else is going to tell me or Kohl Motors what to do." As Garafolo recalled it, it was Harris who volunteered that "a couple of fellows have signed cards for the union." He denied asking had Harris himself signed or saying that no one would dictate to the Respondent, but added "It hit me like a ton of bricks," and admitted telling Harris "-all the fellows in the shop are given jobs , nobody hits you over the head with a hammer saying you have to have the job out at any specific time, nobody breathes down your neck, I am just flabbergasted." Garafolo added he quickly reported this to Mr. Kohl. I believe he did ask Harris whether the man had signed up with the Union , and as in the other two incidents , I find his question, in the circumstances, was also coercive, and of the kind that is prohibited by Section 8(a)(1) of the statute as construed by the Board Struksnes Construction Co., 165 NLRB No. 102 And finally there is testimony by former employee Wyant about twice overhearing Foreman Galvin talking to a group of workmen, perhaps five or six, including Penny and Bishop. He said this happened while he was still employed- and it would therefore be before the strike started and before the petition for an eletion was filed . He said that on each occasion the foreman was talking generally-"I don't know what they were talking about"-and that from 6 feet or so away he heard Galvin say ". . I don't see why you signed the cards , and, if you strike, you are not going to have a job when you come back . . 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Union is no good for you . . I don't see what the hell you guys are messing around the Union for, trying to mess things up " Wyant said Galvin "raved on and on" but that he could recall nothing of what any of the employees had said Two witnesses called by the Respondent denied flatly ever having been threatened by Galvin, and one of these was Kenneth Bishop, whom Wyant had placed at the critical conversations Galvin did not appear at the hearing, but in view of Bishop's denial, and as Wyant proved to be essentially an unreliable witness, I do not credit him as to the talks he said he partially overheard. Wyant also testified that in a separate and personal conversation Galvin asked him "Are you for the Union," and when he replied yes, the foreman said "I'd like to go to one of these Union meetings." The conversation then degenerated into gutter language, as repeated by Wyant On cross-examination he changed this and said Galvin had asked whether he "was going to a meeting." Asked had he reported this version to the Labor Board investigator in his earlier affidavit, Wyant then said "No, he [Galvin] did not say, `Are you going to a meeting?"' "Q. And as a matter of fact, he didn't ask you whether you were for the Union, did he . . ? A. I don't recall that he asked me in this conversation or not this question He may have and again he may not have." There can be no finding on this evidence, as alleged in the complaint, that Foreman Galvin illegally interrogated Wyant at all• 2. Section 8(a)(5) By telegram dated May 22 the Union advised the Compa- ny that it represented a majority of the employees, offered to prove the fact and asked for a meeting. The Respondent answered the same day by saying it doubted the assertion of majority status and advising the Union it must obtain Board certification following an election before it would extend recognition. I find there was a demand and refusal at a time when the Union in fact represented a majority of the employees in an appropriate bargaining unit 8 Analysis and Conclusion These are the unfair labor practices committed by manage- ment representatives and alleged in the complaint as of There is no merit in the Respondent's argument that the Union did not demand recognition and bargaining rights in pertinent part the Union's telegram reads as follows "I B of T represents an overwhelming majority of your service department employees in a unit appropriate for collective bargaining Our representative, Charles Campbell, has unsuc- cessfully attempted to reach you since May 19 to advise you of this fact and to evidence our majority status We request a meeting with you Sat May 24 at 11 am at your showroom offices to discuss this matter with you and to evidence our majority status " The Respond- ent's reply the same day reads in part as follows "Please be advised that we have a good faith doubt that you represent an uncohurst [sic] majority of our employees in an appropriate unit if you wish to prove your alleged majority status then we would prefer that you use election procedures of the NLRB " Read together, the two communica- tions remove all doubt that Kohl knew the Union was asking that he bargain with it as exclusive representative of the employees the moment the complaint issued on September 9, 1969. Short of virtually a rule of law that any violation of the statute automatically converts a refusal to bargain into a violation of Section 8(a)(5) of the Act, it would be difficult to find in this case that there was an unlawful refusal to accord recognition on demand At the start of the hearing the General Counsel moved to amend the complaint and added, as further alleged violations of the statute, the fact that starting late in July and continuing into early November the Company radically altered condi- tions of employment to the benefit of employees. The argu- ment is now made that by such unilateral action the Respondent bypassed the exclusive bargaining agent and thereby also evidenced its rejection of the principle of collective bargaining. There is no point in detailing here either the precise amounts of raises given or the exact form of fringe benefits granted, for the fact of the Respondent having made all these concessions without consulting the Union, quite as though the employees had no interest in collective bargaining whatever, is not disputed at all. The mechanics ended up with perhaps an average of $15 per week more pay, other categories received somewhat lesser raises, paid sick leave was established, vacations were granted, hospitalization and medical insurance benefits went up at the Company's expense, etc. The Respondent offered an explanation based upon economic considerations as to why all this was done at that time, and not before or later But this goes to another question. For the moment consideration must be given to the meaning of this action by management in the light of the refusal-to-bargain allegation. If the Union then in fact represented a majority of the employees, it there was then pending a valid demand for recognition which the Company was improperly refusing to concede, the unilateral raises would give rise to one inference and have a certain meaning. If instead there was no majority representative at the time, if the Respondent was under no obligation to deal with the Union-if, indeed, exclusive recognition accorded the Union at that moment would have been tantamount to contracting with a proven minority representative-the conduct in question must be viewed differently. As stated above at the start of this report, there is an inseparable relationship in the proceeding between the conclusive election held on June 18 and the complaint allegation that the refusal to bargain on demand constituted an unfair labor practice in violation of Section 8(a)(5) and therefore requires a remedial order to bargain with the Union now. In the recent Supreme Court decision on the subject of the Board's authority to issue a bargaining order based on authorization cards in place of an election, N.L.R.B. v. Gissel Packing Co., supra, the Court spoke at length about interference conduct by the employer "dis- ruptive of the election process," "with the result that a fair and reliable election cannot be held," such as to "impede the election process." There is nothing in that decision tending to support a contention that following a determina- tive election, one that must be permitted to stand because there is no warrant for holding misconduct by the employer to have "impeded" the election process, there can neverthe- less be an order to bargain. See also Irving Air Shute, KOHL MOTORS, INC 149 NLRB 627• "Were the election not set aside on the basis of objections in the present representation case, we would not now direct a bargaining order even though the unfair labor practice phase of this proceeding itself established the employer's interference with the election." It follows from the foregoing reality that a further finding here that the violations by the Respondent's representatives also amounted to a violation of Section 8(a)(5) of the Act would in no way extend or alter the remedial order that will issue. Accordingly, I make no finding that the Respondent violated Section 8(a)(5) Raises given employees, or other improvements in working conditions, could, of course, quite apart from any simulta- neous duty to deal with their union instead, be a form of coercive restraint upon their right freely to engage in concerted activities. Such was the case in NL.R B. v. Exchange Parts Co., 375 U.S. 405. It is not enough, however, that the raises are given shortly after a conclusive election adverse to the Union. Whenever an employer improves conditions of employment he necessarily weakens, however slightly, their desire to seek outside representation or to resort to collective bargaining against him . But it does not follow from this truism that his unilateral change in conditions of employment of itself violates the statute regardless of all other considerations There must be some- thing more to prove an unfair labor practice. Nor is that requisite proof of an illegal motivation supplied by the mere fact that there were pending at the time objections to an earlier election. "mere pendency of objections to a past election should not require a finding that any and all improvements in working conditions, whatever their source and purpose, are outlawed." Champion Pneumatic Machinery Co., 152 NLRB 300. Compare Ambox, Inc., 146 NLRB 1520, where the Board found such raises to constitute violations of Section 8(a)(1) because the record as a whole showed they were "calculated to influence its employees' choice of a bargaining representative in the event of a second election," and because it was "evident that such conduct was part of an overall plan to encourage membership in and perpetuate a company-dominated union . . . " The ultimate test must be, in the language of the Exchange Parts decision, supra whether the "conduct immediately favorable to employees . . . is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect."9 There is no evidence, as of any time after the election, that Kohl's purpose in raising benefits was to dissuade the employees from a prounion resolve He made clear to them on June 2 he could not, and would not promise them anything. Cf. Seneca Plastics, Inc., 149 NLRB 420. On the contrary there is probative evidence that the timing of the raises was occasioned by increases in the reimburse- ment arrangement between Kohl Motors and the Ford Company, for which the Respondent is a franchised distribu- tor. Documents received in evidence prove that while some correspondence on the subject was had shortly before the Union's organizational campaign, it was not until after ' See also Logan Co, 171 NLRB No 83, in 7 333 the election that actual permission for the Respondent to charge Ford higher costs for new car work was given. Moreover, Kohl's testimony that the necessity for maintain- ing a competitive position in the light of increasing inflation made the raises inevitable cannot be ignored. And finally, I find unpersuasive the oral testimony of several employee witnesses that at the first postelection meeting of employees, where Kohl announced there would be wage increases and other benefits, he urged them to form a shop committee to deal with him directly as a substitute for any union It had been the employee's own desire in the first instance, as voiced by Martignetti when the strike ended. Schneider testified that at the first meeting Kohl held with the employees about 30 days after the election, there was talk of a three-man committee and that the next day, in the shop, an election was held and three men selected. His total story as to who raised the subject is unreliable His first version was simply that Kohl had told the men to have a three-man committee and elect their own men "If you want to make one commit- tee it is all right." "he says we could have a three-man committee or one-man or two-man, whatever . ." Much later, in cross-examination, the witness said: "I don't know what started it off because I think somebody said something about are we going to have a three-man committee " "Q Who do you think said it? A. I think it was Floyd Hornbeck and Ray Martignetti Q. Do you recall if they announced or stated to Mr. Kohl that there would be a three-man committee? A Yes I think Floyd and Ray Martignetti talked to Mr. Kohl " On redirect, after leading questions, the witness shifted back again: "Q (By Mr Sheridan) Mr. Kohl was the one who first mentioned about the three-man committee? A. If I remember right, yes " Hornbeck started by saying that at the first meeting, 30 days after the election, Kohl did not mention the commit- tee He then said that it was not until a few weeks later that Kohl said "we should elect a three-man committee to handle the problems in the shop . . " Like Schneider before him, Hornbeck also changed his testimony on cross- examination. "I don't know-I mean I can't say exactly who first mentioned it. I know Mr. Kohl said to get the fellows-you know-to get this election, and elect the one that they wanted." He repeated that Kohl had said something about the subject but "I don't know exactly if somebody had mentioned it to him before that " It seems to be a fact that a committee was elected, but it never met with company representatives and nothing ever came of it. Kohl testified at length about these postelection meetings because he expanded upon the increased benefits he gave and the economic justification for them As to the matter of an employee committee, all he did was deny having told the men they could have such a committee, or that they should elect such a group of spokesman. The absolute truth lies somewhere in the middle, and I make no finding on the basis of the employees' testimony that Kohl was the instigator of any such committee. Their stones were too confused and they said much to indicate it was some of the employees who brought up the subject instead of Kohl. In any case it may well be that when they did 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so, he made no objection, or even told them to go ahead if they wished After all, it was Martignetti who first thought of the idea 2 months earlier If in the end Kohl did give his blessing to such an arrangement , there was nothing wrong in his action , for if he was free to deal with them individually he was no less free to deal with any individual spokesman they might choose In any event I can only conclude that the total evidence does not support the complaint allegation that the Respondent inspired and fostered a company union which might discourage other forms of organizational activities . Compare, Alberto Culver Corporation, 136 NLRB 1432 REMEDY The very limited , isolated, almost technical unfair labor practices proved in this proceeding point to the administra- tive wisdom of not entering a formal finding of illegal conduct or issuing a regular Board order , with posting of notices and possible further enforcement proceedings. There were three instances of interrogation, each occurring while a single employee was otherwise not improperly dis- cussing the union campaign with a supervisor . Employee Harris was involved in two of them, and his total testimony, like that of two principal witnesses called to prove the complaint-Schneider and Wyant-leave no doubt all three were straining at the truth , reversing themselves on impor- tant points and creating a false impression by stressing only selected portions of critical conversations . There was a very substantial change of attitude towards the Union before the election, but there is much to indicate the change of heart had nothing to do with the passing questions that should not have been asked. I think no useful purpose would be served by a formal cease-and -desist order in this case, and shall therefore recommend dismissal of the complaint RECOMMENDED ORDER For the foregoing reasons, and in consideration of the entire record, I recommend dismissal of the complaint.