Sherwood Ford, Inc.

SHERWOOD FORD, INC. Sherwood Ford, Inc., and Automobile Salesmen's Un- ion, Local No. 1. Cases 14-CA-5305, 14-CA-5405, and 14-CA-5462 January 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On June 18, 1970, Trial Examiner George A. Downing issued his Decision in the above-entitled proceedings, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. He further found that certain other unfair labor practices alleged in the complaint should be dismissed. Thereafter, the Respondent, the General Counsel, and the Charging Party filed excep- tions to the Trial Examiner's Decision and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, 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 Respondent, Sherwood Ford, Inc., St. Louis, Mis- souri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' consolidated for hearing on motions by the General Coun- sel granted by the Trial Examiner. Briefly summarized, the complaints in Case 14-CA-5305 alleged violations of Section 8(aX5) and (1) of the Act by refusing to bargain since August 22, 1969, with Local 1, the contractually recognized majority representative of Respondent s new- and used- car salesmen. The complaint in case 14-CA-5405 alleged a further refusal to bargain on and after December 1, a series of coercive statements in June and November 1969, violative of Section 8(axl), the discriminatory discharge of Martin Basola, Frank Hath- cock, and Louis Mathenia on December 12, 1969, and other discriminatory conduct from November 10 through Decem- ber 12, in violation of Section 8(aX3). The complaint in Case 14-CA-5462 alleged further acts violative of Section 8(a)(1) from August 4, 1969, through January 30, 1970, the discrim- inatory discharge of Richard Lee and Joseph Whittaker and the layoff of Kenneth McBride on January 30, in violation of Section 8(a)(3). Respondent filed answers denying all of said unfair labor practices. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following- I JURISDICTIONAL FINDINGS: THE LABOR ORGANIZATION INVOLVED I find no admitted allegations of the complaints that Res- ondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act,2 and that the Charging Party is a labor organization with the meaning of Section 2(5) of the Act. A. Background and Issues Pertinent background events herein begin with a collec- tive-bargaining agreement between Respondent and the Charging Union which covered the period from January 1, 1968 through December 31 , 1970, with a provision for re- opening on wages upon 60 days notice, on January 1, 1969, and January 1, 1970. Kenneth C. Berdos took over the dealership on July 1 , 1968, and the contract with it. On August 23, 1968, Automobile Transport Chauffeurs, Demonstrators and Helpers, Local No. 604 of Teamsters' International (Local604herein) filed a representation peti- tion with the Regional Director in Case 14-RC-6026, seek- ing representative status in the unit of new- and used- car salesmen. The Regional Director dismissed that petition on September 10, 1968, informing Local 604 that as a result of his investigation it appeared that Local No . I was neither unwilling nor unable to represent the employees in the unit and therefore the existing agreement constituted a bar to an election. No appeal was taken from the Regional Director's ruling. On October 16, Local 604 filed an unfair labor practice I In footnote 17 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: These proceedings under Section 10(b) of the National Labor Relations Act as amended were heard at St. Louis, Missouri, on December 8, 1969, and on April 13-15, 1970, pursuant to due notice. Separate complaints were issued as noted below I and were I Case 14-CA-5305• Complaint, October 16, 1%9, amended complaint, November 19, 1969, amendment-to complaint, December 3, 1969, based on charges and amended charges filed September 25, October 3 and October 31, 1969. Case 14-CA-5405- Complaint, January 20, 1970, amendment to complaint February 27, 1970, based on a charge and an amended charge filed Decem- ber 16, 1%9, and January 13, 1970. Case 14-CA-5462: Complaint, March 12, 1970, amendment to complaint, March 13, 1970, based on a charge and an amended charge filed February 4 and February 6 2 Respondent, a Missouri corporation, operates a Ford dealership in St. Louis County. Its gross sales exceed $500,000 annually, and it purchases and receives annually, directly from extrastate points, goods and material valued in excess of $50,000. 188 NLRB No. 16 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge against Respondent under Case 14-CA-4856, charg- ing a refusal to bargain arising from Respondent's refusal to recognize Local 604 as the bargaining a gent under an alleged affiliation by Local 1 with said Locar604. By letter of November 21, 1968, the Regional Director informed Lo- cal 604 he was refusing to issue a complaint because, after investigation, it did not appear that Respondent had any obligation to bargain with Local 604 . The investigation showed, the Regional Director continued , that due notice to all employees was not given of the meeting at which the affiliation vote was taken and in addition the terms of the affiliation resolution provided that Local 1 would have ceased to exist, with another labor organization being sub- stituted as bargaining representative . The Regional Director thus concluded that Local 604 was requesting Respondent to recognize it at a time when Respondent was under a legal obligation to continue recognition of, and to bargain with, Local 1. For the purpose of showing Respondent's animus against Local 604 and its supporters , the General Counsel also of- fered background evidence of coercive acts and statements which occurred during the course of the foregoing proceed- ings and again beginning in June 1969, when pro -Teamsters activities were renewed among the salesmen . The latter ac- tivities culminated in the adoption of a resolution by Local 1 on August 21, 1969 , which purported to designate Local 604 as its representative in all matters relating to collective bargaining. Local 1 informed Respondent of that action on August 22, by a letter delivered to President Kenneth C. Berdos in which Respondent was requested to deal directly with Local 604 as its representative. Case 14-CA-5305 presents the single issue (continued in 5405) whether Respondent lawfully refused that request. The remaining issues involve various alleged coercive state- ments beginning on June 16, 1969-the Section 10(b) date-alleged discriminatory discharges or layoffs on De- cember 12 , 1969, and January 30, 1970, and other alleged acts of discrimination. The entire case is but a sequel to Local 604 's earlier attempts to become the bargaining representative of the members of Local 1 , with, it may be noted, the full consent of the latter. It arose from a renewal of pro-Teamsters senti- ment and with what began at least as another attempted affiliation. Noting preliminarily that Respondent was at all times opposed to dealing with Local 604, we begin with the refusal to bargain, which is the central and most important issue in the case. B. The Refusal to Bargain (Cases 14-CA-5305 and 5405) 1. The evidence As early as June 1969, Gary Roberts, president of Local 1, was actively engaged, to Respondent's knowledge, in ad- vancing among the salesmen a movement looking toward a new affiliation with Local 604 or such other action as would make that local the bargaining representative of the sales- men. Respondent's conduct in opposition to those activities is reviewed in Section C, infra. Some time prior to August 1, (when Roberts left on vaca- tion), the members of Local 1 met at Roberts' home and discussed the matter of affiliating with Local 604, or becom- ing apart of it, and of the fact that the earlier attempt had been re ected by the Board because the membership was not properly notified. It was agreed that the members would go to the office of Local 604 when notified and sign cards for that union. On August 5, all of the salesmen except Roberts, who signed a card before leaving on vacation , met with Dale Ferns, Teamsters' business representative , at Local 604's office and signed cards which contained both an application for membership and a formal designation of Local 604 as the collective-bargaining representative of the signatory. There was some informal discussion of dues and the sales- men were informed that the dues were $10 as against the $5 dues of Local 1.3 There was also discussion of the failure of the earlier attempt at affiliation and like to talk with his la w er concerning the legality of what they were doing. On August 16, Roberts notified all members of Local I of a meeting to be held on August 21 , "at which time we will discuss the possibility of employing a person who is expe- rienced in labor relations to act as our representative in future union matters." Francis L. Lurk, secretary of Local 1, testified that after Roberts opened that meeting, Arthur Schultz, Jr., made an oral motion that the members "have Local 604 as their bargaining agent." Attorney Sheldon Weinhaus, who was present, suggested instead that he would read a resolution , and when he did so, Schultz agreed that the written resolution was acceptable to him . It may be briefly summarized as follows: The preamble paragraphs recited the lack of experience which Local 1 had in matters of collective bargaining, con- trasted with the broad range of experience which Local 604 had, and recited that the members of Local 1 felt their interests would best be served by retaining the services of Local 604 for the purpose of aiding, assisting, and appearing on behalf of Local l and its members in matters of collective barggaining. The resolution then provided that Local 1 retain for the period of the existing contract the services of Local 604, which was thereby designated as a duly constituted repre- sentative of Local 1 to appear on behalf of it and the bar- gaining unit at Sherwood Ford in all matters relating to collective bargaining. It provided further that the considera- tion for the services of Local 604 would be the amount of dues which Local 604 would derive if those within the bar- gaining unit were members of Local 604 and directly repre- sented by it. Finally the officers of Local 1 were directed to review all collective-bargaining matters with Local 604 and "to follow and carry out all instructions received from said Local 604 as it relates to matters of collective bargaining." See Appendix A for the full text of the resolution. Minutes of the meeting recited in pertinent part that the resolution was passed unanimously by secret ballot and that as Roberts' suggestion Weinhaus read to the members a letter which Roberts would give the Company concerning retention of an agent to represent the Union. At the sales meeting on August 22 , Roberts delivered to Berdos Local l's letter which informed Berdos that on Au- gust 21 its membership "voted to retain the services of Auto- mobile Transport Chauffeurs, Demonstrators and Helpers, Local Union No. 604, and its representatives , to appear on behalf of and act as agent of the association in all matters relating to collective bargaining and the wages, hours, and other terms and conditions of employment for the bargain- ing unit for which the association has been recognized." Berdos was requested to accept notices and communica- tions from Local 604 concerning matters relating to the collective-bargaining agreement between Respondent and 3 Beginning with September the treasurer of Local I collected monthly dues of $ 10, which were remitted each month to Teamsters, which has held them in its general funds "m escrow" pending the outcome of these proceed- ings SHERWOOD FORD, INC. Local 1, including grievances, contract reopenings, etc., and to handle all such matters with Local 604, which would act for Local 1. Berdos' reaction was to announce in retaliation an imme- diate increase in the minimum profit margin on acceptable deals to $150 and an intention to impose still further re- quirements on the salesmen. Formal rejection of the request to bargain with Local 604 was contained in the Talent's letter of September 16, which in material part was as fol- lows: We view your request as another attempt on the part of Local 604 to circumvent the recognition of Local 1 as bargaining agent and the collective bargainmg agreement between Sherwood Ford and Local 1. In .August of 1968, Local 604 attempted a similar maneu- ver but was repulsed. Subsequently, in October of the same year, Local 604 attempted a different direction and again was unsuccessful. We view this as only an- other maneuver to attain the same ob ective of recogni- tion and collective bargaining. Your request is therefore denied. Furthermore we question the validity of the appointment of another union as agent and rep- resentative. Local 1 is the authorized bargaining representative with which Sherwood Ford has now a valid collective bargaining agreement. We are required by law to rec- ognize it and deal only with it as such representative. We are so bound and shall respect our legal obliga- tions. There followed over the next 3 months a barrage of cor- respondence which contained on the one side a series of requests that Respondent bargain with Local 604 on a vane- ty of questions and on the other a re ented flat re ection 133 recognized bargaining representative and that "All arrange- ments for negotiations should be made directly with our agent." Talent rejected that request on the usual basis on November 4, concluding his letter as follows: The Company is willing to meet with Local 1 and its duly and validly authorized representatives at any con- venient time and place to negotiate wages under the reopener clause in the contract provided proper notice thereunder is given. It will make no arrangements therefor with Local 604. Refusals to bargain are also claimed by reason of the following: At a sales meeting on November 3, Sales Manager Gil- liam told the salesmen that if they would "stop having this union problem," he would, pursuant to a promise to Berdos, show them a copy of Berdos' proposed new pay plan. Gil- liam produced a sheet of paper which contained Berdos' notes and went over with the salesmen various details of the new plan, which embraced a number of added or increased benefits to the salesmen. All the salesmen were present, including the officers of Local 1, but no notice was given the Union that Respondent desired to bargain with it concern- ing Berdos' proposal. Respondent stipulated that on December 1 it instituted a program of split shifts, not theretofore used, that such shifts were actually used during the week of December 1 through 6, and that it did not consult with Local 1 before making the change.4 Berdos testified that the changes were made- on December 1 for disciplinary reasons because the salesmen were coming in late and were not working properly. Gilliam, who announced the changes, testified similarly. of those requests on the basis stated inpTalent's letter, with 2. Concluding findings added statements to the effect that Respondent would not The Section 8(aX5) issues herein include (a) Respondent's be aparty to any subterfuge which attempted to circumvent refusal to deal with Local 604 as the bargaining agent of Section 9 of the'National Labor Relations Act. By and large Local 1, and (b) the question whether its various unilateral the correspondence was directed toward advancing, in self- actions, reviewed above, constituted refusals to bar ain serving statements, the respective positions of the parties as with Local 1. g previously outlined. (a) Consideration of the first issue begins properly with We note briefly two of the principal subjects of controver- noting that Section 9(a) of the Act creates a mandatory sy: On September 16, Ferris endeavored to present a griev- ance pertaining to the dischar e of Larry Giffin informing obligation on the employer's part to deal exclusively with the ` bargaining representative whom the employees have cho- Respondent that he had been 'officially authorized by [Lo- cal 1] to represent them in matters of this type " and on sen, exacting, as the Supreme Court held in Medo Photo- October 4, Ferris renewed his attempt to handle that griev- Supply Corporation v. N.L.R.B., 321 U.S. 678, 684, "the neg- ance, requesting that it be submitted to arbitration and ative duty to treat with no other." Pertinent also was the requesting a meeting for the purpose of nominating an arbi- further holding that: Petitioner trator. Though Talent rejected those requests on the basis was not relieved from its obligations because stated in his previous letters, Berdos wrote Giffin and Lo- the employees asked that they be disregarded. The stat- cal 1 on September 30 that, having reconsidered the dis- ute was enacted in the public interest for the protection charge, he was willing to reinstate Griffin, but added that, of the employees' right to collective bargaining and it "We are also making a rule in the future that any man who may not be ignored by the employer even though the does not make his draw for two (2) months in a row will be employees consent (citing cases) or the employees sug- automatically discharged." Roberts protested that action by gest the conduct found to be an unfair labor practice. his letter of October 2 (Emphasis supplied.) claiming an imppropper following of As Respondent could not lawfully have recognized Local the grievance procedure and claiming r that Berdos 604 as the bargaining representative of the employees, we was improperly attempting to change the the contract terms turn to the question whether it was required to recognize unilat On eOctober 21, Ferris wrote Berdos that, as the duly that Local as the bargaining representative of Local 1. Set- desi nated agent for Local 1, he was electing to reoppenu the tins aside for the moment the legalisms in which the reso- contgract for the of negotiating a was lution is couched, the record otherwise fully supports calling as of Ja n attention o Respondent's contention that the August 21 maneuver was 1, 1970. Talent repined urpose on October 28, wages his prior letters and stating that Respondent would deal a patent attempt to substitute Local 604 as the bargaining only with Local I or its valid and proper representative. agent in place of Local I and that it was a device, subter- Roberts in the meantime write Berdos on October 23 that 4 Other changes in working practices announced at the same time were Ferris and Strain (president of Local 604) had full authority claimed by the General Counsel to be violations only of Section 8(axc) and to act for Local 17 and to bargain for it on behalf of the are reviewed in Section 3, infra. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fuge, or stratagem by which the two locals sought to circum- vent the earlier rulings of the Regional Director. Fur- thermore the record is silent why the Unions chose to resort to such circumvention, since as the General Counsel con- ceded at the hearing, a new and valid affiliation could have been effected by giving proper notice of a meeting and holding a new affiliation vote. It was plain from the evidence that the salesmen wanted Local 604 to be their collective-bargaining representative as early as August 1968. The 1969 activities reflected no differ- ent object, for what the salesmen desired was to obtain a better contract, better representation and the better (Team- sters') benefits which they thought they would obtain. Their thinking was exclusively in terms of effecting a new affilia- tion. Even Roberts, who was more careful than other wit- nesses in phrasing the aims of the employees, referred at one point to 'having "affiliated" with Local 604, and Arthur Schulte, Jr., testified that his oral motion, made at Roberts' request before Weinhaus produced the formal resolution, was to affiliate with, or loin, Local 604. Furthermore, after Arthur Brown resumed his salesman's job on September 8 and renewed his membership in Local 1 , he was informed by Treasurer Fred In ggrrim that because the salesmen had agreed to affiliate with Local 604 , the dues would be the $10 dues 'of that union. Their actions were wholly consistent with those aims. They signed both applications for membership and formal designations of Local 604 as their "representative for pur- poses of collective bargaining." Though there was no evi- dence of formal admission to membership , the salesmen were informed that Teamsters' dues were $10 a month (in- stead of the $5 dues of Local 1), and that sum was thence- forth collected and remitted to Teamsters . Significantly also no salesman attempted to withdraw or cancel the formal designation of Local 604 as his bargaining representative and such designations are still retained by that Local. Against this background we examine the elaborate legal- istic phrasing of the resolution, which was prepared in ad- vance by Weinhaus, then attorney only for Teamsters. Though the preample paragra hs sought to lay a foundation for associating the services of an expert to aid Local 1 in bargaining with Respondent , its other provisions themselves tended to confirm the conclusion that an actual substitution was intended of Local 604 as the bargaining representative of the salesmen. Not only were the dues doubled to conform with Teamsters dues (without proper authorization within Local 1 so far as shown by the record), but such dues were to be remitted to Teamsters as its fee for services. More significantly, the officers of Local 1 , were directed to follow and to carry out all instructions of Local 604 on matters of collective bargaining. It was there that the switch became manifest , for the dog had now become the tail, and Local 1 was thenceforth to be wagged at will by Local 604. Under elementary principles of agency law, however, the principal controls the agent, not the reverse. But eschewing again alegalistic approach, I find that the resolution itself supports the conclusion , which I draw from the entire evidence, that the Unions were at- tempting to substitute Local 604 in place of Local 1 as the statutory bargaining representative of the salesmen . Despite the agreement of the employees, Respondent was not free to agree to the circumvention of the earlier rulings of the Regional Director, for it would nevertheless have engaged in an unfair labor practice . Medo Photo-Supply Corp., supra. Though the General Counsel cites authority for the famil- iar principle that a statutory bargaining representative may select outside experts and other advisors as personnel of its bargaining team,5 the facts in the present case leave that principle without application, for here the parties were at- tempting an outright substitution of representatives , not just the association of expert aides. I therefore conclude and find that Respondent did not refuse to bargain with Local I within the meaning of Section 8(a)(5) by refusing to recognize or to bargain with Local 604 in an respect as the bargaining representative or agent of Local 1 or of Respondent's salesmen. (b) The issues concerning Respondent's unilateral actions stand on an entirely different footing, for the refusals to bargain occurred, if at all, directly in relation to Local 1. The General Counsel by brief contends that such refusals resulted from the following conduct: (1) Berdos' immediate, retaliatory announcement on Au- gust 22, imposing, without notice, more stringent conditions on acceptable deals. (2) Berdos' new rule, without notice , on September 30, under which automatic discharge would follow a failure to make the "draw" for 2 months in a row. (3) Gilliam's presentment, direct to the salesmen on No- vember 3, (again without notice to Local 1) of Berdos' pro- posed new pay plan. (4) The institution of split shifts , without notice, on De- cember 1. We begin by noting that Respondent's chief defense is the broad management rights clause in the contract under which the Union recognized that "any and all rights con- cerned with the management of the business and the direc- tion of the working forces are exclusively that of the Company" except as modified , limited, or restricted by provisions of the contract , and that such rights included, among other things, the right to lay off, to discipline, and to discharge for cause, and to "establish and maintain rules governing the employees ' conduct and work, to determine the schedule of work," etc. However, the contract also con- tained a lengthy article on wages, with detailed provisions covering such matters as commissions , drawing accounts, annual bonuses, and compensation for finance and insu- rance sold as part of an accepted deal. Briefly stated, I uphold the General Counsel's conten- tions on items (1) and (3), supra, while I find with Respon- dent that the management rights clause justified the unilateral actions covered by items (2) and (4). Items (1) and (3) plainly involved matters which went directly to the commissions, earnings , or other remunera- tion of the salesmen. The increase in the minimum gross profit necessary to conclude a sale would obviously affect the salesmen's commissions through loss of sales which would have been acceptable at the prior lower figure. An though there was no evidence that Berdos actually adhered to the new profit figure, there was also no evidence that he ever informed the salesmen or Local 1 that he was revoking it. Gilliam's presentation of Berdos ' new pay plan involved a number of matters which affected both the earnings of the salesmen and other benefits they would receive if they would "stop having this union problem." Such dealings with employees, bypassing their statutory bargaining reppresenta- tive, plain' constituted a refusal to bargain with the latter. Waycross Sportswear, Inc., 170 NLRB No. 139. On the other hand, Berdos' announcement of September 30 was directly related to management's right to discharge for cause. Since there was no restriction on that right, Res- pondent was free to act for any reason it chose (save a discriminatory one) and with or without notice of a change. S See, e.g, Standard Oil Co, 137 NLRB 690, enfd. 322 F.2d 40 (C.A. 6); Minnesota Mining & Manufacturing Co., 173 NLRB No. 47, enfd. 72 LRRM 2129 (C.A. 8) SHERWOOD FORD, INC. As for the split shift requirement instituted on December 1, the General Counsel's position is substantially prejudiced by his consession that other similar changes made at the same time (i.e., requiring attendance at daily sales meetings, requiring 10 daily calls and mailings to prospective custom- ers, and maintaining daily activity sheets and "up" sheets) fell with the management rights clause, albeit discriminato- rily motivated. See Section C, infra. I reject the General Counsel's contention that the split shift was such a radical departure from established practice that it was incumbent upon Respondent to demonstrate that Local 1 waived its right to bargain about the matter and I find, to the contrary, that it differed in no realistic way from the other changes which the General Counsel disclaimed as a refusal to bar- gain. C. Restraint and Discrimination Cases 14-CA-5405 and 5462 The General Counsel offered considerable evidence con- cerning events in 1968 for the purpose of showing both animus against Teamsters and a discriminatory motivation behind the treatment accorded the salesmen within the 10(b) period. As it was plain throughout the record that Respondent was at all times opposed to Teamsters, the background evidence is significant mainly for the light it throws on the allegations of discrimination. The chief witness was Joseph Whittaker (himself an alleg- ed 8(a)(3)), who was a sales manager from January 1967, until February 1969, and who remained as a salesman until laid off on January 30, 1970 . His testimony, largely uncon- troverted, was to the following effect: Whittaker reported to Berdos what he learned of the Teamsters' activities in 1968 and they discussed what should be done. Berdos referred in part to alleged experience in Chicago with the Mafia, said lie would never be organized in St. Louis, and if he were organized it might be tough for everyone involved. He asked Whittaker to 'put down" the movement, and Whittaker agreed to do so. Whittaker later reported back the results of his campaigning among some ofthe salesmen for support of the Company , and Berdos commented that he would know who voted for the Union and would eliminate them one by one , picking his own time, and that he would get rid of Louis Mathenia and Kenneth McBride riaway. Thereafter Berdos called Mathenia and McBride a separately to his office and, in Whittaker's presence, told them he was letting them go . Following pro- tests by each of them, however , Berdos told them they could stay on. Testimony by Mathenia and McBride was in accord. Ber- dos did not deny Whittaker's testimony concerning their discussion of the Teamsters' activities , but he endeavored to justify Mathenia's discharge (and immediate reinstatement) as a scare tactic to stimulate Mathenia to increase his pro- duction. I credit Whittaker's testimony. Whittaker also testified that around the same time Berdos stated he was going to get rid of Joe Schultz, and that after Schultz later "got rid of himself," Berdos commented, "That is number one." 135 respects, and in resolving the. conflicts I have taken into consideration the usual factors including demeanor and manner of testifying and such other evidence in the record as throws light on their testimony. In brief, I am unable to credit Mathenia's testimony, which was also denied in a number of respects by witnesses other than Brown and which was in other respects unreliable on its face.6 Brown's credited testimony, briefly summarized, was as follows: Brown candidly admitted that he discussed Local 604 with the salesmen several times in 1968 and 1969, beginning with the first affiliation in October 1968, and that on and after June 16, 1969 his discussions with groups of salesmen, including Mathenia, related mainly to the fact that Gary Roberts (a new-car salesman) was obstructing used-car sales by carrying on union activities (on behalf of Local 604) in the used-car office. He ordered Roberts out of the office on one occasion, and on several others he asked Mathenia to tell Roberts to get out of the office and to come in only for business because Roberts was disrupting the sales. Brown also told the salesmen that business was down, that they were losing sales because of their Local 604 activities by not paying attention to business, and they.they should stop their union activities, get the Union out of their minds, and get back to selling automobiles . Such discussions con- tinued down to September 8. Brown testified further that he discussed with Berdos the fact that the union activities were upsetting business in that the salesmen were sitting around the office talking union activities and not waiting on the customers. On some occa- sions the salesmen asked him why Berdos was opposed to Local 604, and he replied that the activities in the dealership were upsetting business, and if they would leave their activi- ties outside the dealership and sell cars everyone would be much happier. Other. evidence was directed to complaint allegations which attributed coercive statements to Berdos, Sinclair, and Gilliam. Roberts and Whittaker gave undenied testimony that when Roberts delivered Local l's letter on August 22, Ber- dos reacted heatedly with the statement that if they wanted to be rough, he would show them how rough he could be, that thenceforth the minimum profit margin on an accepta- ble deal would be $150 and that he would also make up a list of other requirements which the salesmen would have to abide by. Whittaker testified, without denial, that in November Berdos stated he understood the dues had been changed to $10, and asked Whittaker what the reason was. Whittaker replied he did not know. Mathenia testified to alleged coercive statements made by Gilliam in September and by Sinclair in October and November, but I do not credit his testimony over the denials of Gilliam and Sinclair. Other testimony concerning Sinclair's efforts in November to persuade Mathenia to re- sign is considered below on the matter of Mathenia's layoff on December 12, as is also Mathenia's claim that his work-, m% schedule was reduced in November. Whittaker testified that less than a month prior to the Other background testimony was from by Arthur Brown, who was the used-car sales manaer 7rom March 1968, until 6 The following examples are illustrative : Mathema testified to alleged September 8, 1969, and who was gthereafter a used-car sales- coercive statements made by Brown upon Mathema's return from vacation man. Brown was himself the agent through whom Respon- in June 1969, in commenting upon "another letter" which Berdos had re- ceived was charged with numerous items of alleged coercive ceived from the Union. The record establishes , however, that the battle of conduct during the 10(b) period, and his testimony was correspondence did not get under way until after Brown ceased being a sales manager on September 8. elicited in direct relation to that of Louis Mathenia, who Mathenia's claim of a discriminatory curtailment in his work schedule in preceded him to the stand. Though both were witnesses for November was, in turn, exploded by testimony of Francis L. Lurk (secretary the General Counsel, their testimony conflicted in material of Local 1), who testified both for the General Counsel and for Respondent. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 12 layoff, he overheard Gilliam say to Lurk and Mathenia that Berdos had instructed him not to take any deals from Roberts but he had refused to do so. Gilliam denied making such a statement, and the General Counsel did not seek to verify it by either Lurk or Mathenia. I credit Gilliam's denials. Whittaker also testified that in November Sinclair ex- pressed the wish that Roberts would stop sending letters to the Greek (Berdos) because it was upsetting him, and that at dinner on the same evening, Sinclair continued, that if Berdos would let him handle the matter in his way, he would have it all over with by laying off all those who had anything to do with the union activity. Sinclair admitted that it was "very possible" that he commented on the letters which Berdos was receiving but denied the remainder of Whittaker's testimony. Sinclair ad- mitted in a different context, however, that until the middle of November he took part in discussing union problems with the men when the subject cropped up in "bull" sessions but when he realized their complaints were becoming more serious, he avoided further discussions even in a kidding vein.? As the incident occurred during the earlier period when Whittaker did not abstain from discussing the union problem, I credit Whittaker's testimony that Sinclair sug- gested his own solution of the problem. It was stipulated by Respondent that at a sales meeting on December 1, Gilliam announced certain changes in working schedules and practices, which were actually used for the week of December 1 to 6, as follows: Split shifts were instituted and the salesmen were required to attend dail' sales meetings, to maintain daily activity sheets and "up ' sheets, and to make telephone calls and mailings to not less than 10 actual or prospective customers daily. There was some conflict in the testimony, however, concerning what reason Gilliam assigned for making the changes. According to Mathenia and McBride, Gilliam coupled the changes directly with statements concerning the Teamsters' activi- ties. Gilliam denied that testimony, and his denials were supported by Roberts, a witness for the General Counsel, who admitted on cross-examination that the reason which Gilliam gave was the business situation and the condition of the business. I therefore do not credit the testimony of Mathenia and McBride. The remaining evidence centered around the layoffs which were made on December 12 and January 30 and around other alleged discrimination against some of the salesmen involved. The first layoff was announced by Gil- liam and the second by Berdos, and in each case it was stated that the layoff would include three salesmen, to be selected on the basis of the lowest producers for the preced- ing 3 months. On that basis Mathenia, Martin Basola, and Frank Hathcock were chosen for the first layoff and Whit- taker, McBride, and Richard Lee for the second. The reason which was assigned for each layoff was business or eco- nomic conditions generally and the drop in Respondent's sales, though there was some conflict concerning other statements which Gilliam made on December 12. Roberts, Basola, and Mathenia testified that Gilliam rep- resented that he and Sinclair had sought to talk Berdos out of making the layoff and Basola and Mathenia testified that Gilliam referred further to an alleged argument he made to Berdos that business did not warrant one. Gilliam testified in denial that he referred to business being slow and sales 7 Sinclair sometimes also commented on the personality clash and the friction between Berdos and Roberts and suggested that things might have been smoother if the salesmen had chosen someone whose personality was more agreeable to Berdos. being down, to the fact that other dealers were making layoffs, and stated that though Berdos had tried to avoid it, a layoff must be made. Resolving the conflict, I find that though Gilliam mentioned an effort to talk Berdos out of the layoff (as Roberts testified), he did not represent that business did not warrant a layoff. There was also testimony that the question of seniority was raised and that Gilliam replied that seniority did not mean anything.8 I also credit Roberts' testimony that Gil- liam stated he hoped he would not have to lay off anyone else, but if business continued slack, there would be more layoffs, and I credit Gilliam's testimony that he stated if business picked up in the future, the men would be called back. A postscript to the meeting concerned an arrangement whereby the laid off salesmen were permitted to retain their demonstrators for a week. The General Counsel sought to establish discrimination both in the types of demonstrators involved and in a special arrangement later made with Hathcock to retain his demonstrator (for pay) for longer than a week. Crediting Berdos' testimony concerning the matter, I find baseless the General Counsel' s claim of dis- criminatory treatment. We turn backward, briefly, to testimony by Mathenia relating to alleged discrimination against him in the layoff and in a curtailment of his working schedule after he re- turned from an illness in November. Mathenia testified that on at least three occasions, Sinclair, then used- car sales manager, pressured him to turn in his resignation because of failure to make his "draw," pointing on one occasion to a posted bulletin to the effect that as of October 1 any salesmen who did not make his draw for 2 months would be automatically discharged. Sinclair testified he had a single conversation with Math- enia about resigning, around November 20, in which he referred to the fact that the Company was losing money and was going to have to lay off some salesmen based on prod- uction. He suggested that Mathenia do himself a favor and "find a home before the axe drops." Sinclair denied the other portions of Mathenia's testimony, and I credit his denials. Mathenia also testified that after his illness his working hours were cut on posted schedules authorized by Sinclair, who ignored his complaints that other salesmen were al- lowed to work more hours than he. Respondent refuted that testimony by calling Lurk, elsewhere a witness for the Gen- eral Counsel, who testified that he customarily made out the work schedules, submitting them to Sinclair for approval. Lurk consulted with Mathenia about the 3 weeks in ques- tion to ascertain what hours Mathenia wanted to work and offered to let Mathenia work part of Lurk's schedule during a time when Lurk was to be absent. Mathenia declined. Lurk did not discuss the schedules in question with Sinclair nor did he discuss Mathenia's hours with Sinclair. I credit Lurk's testimony. Finally, Mathenia testified that on December 5, Gilliam congratulated him in Berdos' presence for doing a swell job in that particular week, stating that Mathenia's ^roduction was about 50 percent greater than anyone else s. Gilliam denied that testimony, and pointed out that he was not Mathenia's supervisor at the time and had not been so since the first of October. I credit Gilliam's testimony. Mathenia's testimony also included other statements 8 The contract contained no seniority provisions and no other provision which limited Respondent's right to make layoffs or discharges for cause. Gilliam testified that in the conference which preceded the layoff , Berdos stated it was not necessary to lay off according to seniority because he looked it up in the contract. SHERWOOD FORD, INC. W which Sinclair and Gilliam allegedly made from time to time and which they denied. As f credit the denials (see fn. 6, supra) it is unnecessary to review Mathenia's testimony. As for the January 30, layoff, there was no substantial conflict in the evidence that Berdos announced that because of the worsening economic situation and because sales were down, he was forced to make further layoffs , and he direct- ed Gilliam to take the keys to the demonstrators of McBride and Whittaker and to notify Richard Lee, who was ab- sent.9 What is in dispute are certain statements which Gil- ham allegedly made to Whittaker and McBride after they left the meeting and while Gilliam was driving them to McBride's home. In brief, Gilliam was charged with saying that the layoff was a surprise to him, that he was not consulted, and that he did not know who was to be laid off. In response to statements by Whittaker and McBride that they intended to file a grievance or a charge , Gilliam replied he did not blame them. Though Whittaker testified that Gilliam concurred in the conclusion he expressed that union activities must have been the reason for the layoff, McBride testified Gilliam was noncommittal on that and simply replied he was sur- prised and was not consulted. Gilliam testified that what he told Whittaker and Mc- Bride was that though he knew the layoff was coming, he was surprised at the way it happened . To their stated inten- tion of filing a grievance or a complaint, Gilliam responded, "Go ahead. I can't stop you." As for the suggestion that the layoff must have been for union activities, Gilliam made no response except a "hah." much of the foregoing testimony is reconcilable in light of the fact that Gilliam was not aware either that Berdos had reached a final decision Or that he intended to proceed on the 30th . See footnote 9, supra. Thus his expressions of surprise, of not being consulted, and of not knowing who was to be involved were understandable. I find , however, that Whittaker and McBride either misinterpreted or read too much into Gilliam's reaction to their statements about filing a grievance or a complaint or about their union activi- ties. Indeed, McBride agreed, as noted above, that Gilliam was noncommital on the latter point . I therefore credit Gilliam's testimony. Respondent offered testimony by Berdos and excerpts from its records in support of its defenses that there was economic justification for the layoff and that the selections were made on a nondiscriminatory basis . Berdos testified that business was slowing down in November , that other dealerships were laying off employees, that he examined a financial statement and a record of sales and , deciding that some layoff would have to be made , talked with his attor- ney, Talent, concerning the manner in which it could be made. After looking through the contract , Talent advised him the layoff could be made if not based on his "labor problems" and that the selection could be based on prod- uction. Though November ended with a profit of $4,000, that was less than for October, and by December 10 Res- pondent was operating at a loss.10 Since a check of the 'sales records through the 10th showed that the trend of business was downward , Berdos 9 Gilliam testified that Berdos talked with him and Sinclair about business conditions a day or so before the layoff and stated in part that with business not coming in it looked as if they would have to lay off three more men-"the three lowest guys." Gilliam, who was off on the 29th, did not know when he came in on the 30th that Berdos had already decided to proceed with the layoff. 10 Ultimate losses of $10,000 in December were followed by $17,000 in January, $11,000 in February, $2,000 in March and $2700 up to mid-April Losses in January 1969, were $4,173, and in August, $ 14,000 talked with his sales managers and 'decided to lay off the three salesmen who were the lowest producers in the preced- ing 3 months. As any salesman might have a bad single month, the longer period was considered to be more repre- sentative for measuring the respective capabilities of the salesmen. When the sales records showed that Hathcock, Mathenia and Basola we're the lowest producers for the months of September, October, and November, Berdos di- rected Gilliam to lay them off on December 12. Berdos testified that though he took, into account that Mathenia was absent for 2 weeks (by going back 2 Weeks further), the results still left Mathenia as the third lowest. The sales record confirmed that the salesmen in question were the lowest producers for the 3 months' period-indeed, the results would have been no different if July and August had also been included. Each sold a total of 9 or 9-1/2 cars, compared with a total of 18-1/2 sold by Roberts, who was- the' next lowest producer. The layoff on January 30 was made on the same basis as the former. The fall slump not only continued, but it deepened during the winter months as attested by Respondent's losses as noted above. Respondent's selection of McBride, Whittaker, and Rich- ard Lee as the three lowest salesmen for the three prior months was again confirmed by Respondent's records, which show that Whittaker sold a total of 15 cars, McBride a total of 16-1/2 and Lee a total of 18-1/2, with the next lowest producer being Lurk with 23 cars." Respondent laid off a porter at the same time as the salesmen and laid off a new car mechanic in early February. Neither of those employees was recalled, but around March 9 Berdos began recalling the salesmen in inverse order of layoff as vacancies occurred and as sales began to improve. McBride was recalled on March 9, Lee was offered reins- tatement on April 1, but refused; and Whittaker was also offered reinstatement on April 1, but refused to accept un- less he was first paid his back wages. Thereupon Basola was recalled. On April 9, Mathenia was offered reinstatement but refused it unless he was first paid his back wages. No offer was made to Hathcock who had moved away from the area. Concluding Findings Under the credibility resolutions made above, it is possi- ble to state in briefest terms my findings on alleged interfer- ence, restraint and coercion. I do not find coercive Brown's discussions of Local 604 with the salesmen at any time between June 16 to September 8, 1969, when Brown again became a salesman. Because Robert's activities on behalf of Teamsters were interfering with sales and the worktime of the salesmen, I also find that Brown could properly order Roberts to stop those activities during worktime in the used-car office.12 I also do not find coercive Gilliam's announcement of changes in work sched- ules and work practices on December 1. I find that by the following conduct Respondent inter- fered with, restrained, and coerced employees in the exer- cise of Section 7 rights: Berdos' imposition of a new minimum profit margin on August 22 in retaliation for Local l's request that Respon- dent deal with Local 604 as its representative and Berdos' threat to prepare a further list of requirements to be ob- served. 11 Roberts, who left voluntarily on January 16 to take other employment, sold only 13 cars prior to his resignation. 12 See Republic Aviation Corporation v. N L P_ B, 324 U.S. 793 , 803, quoting with approval from Peyton Packing Company, 49 NLRB 828, 844, the Board's familiar holding on the subject, "Working time is for work " 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Berdos' inquiry of Whittaker concerning the increase in dues and the reasons for it. Sinclair's statement to Whittaker that, if permitted by Berdos, he would handle the union matter by-lay ing off all those who had anything to do with the union activities. Some of the allegations on discrimination may also be summarily disposed of. Thus I find without substance, on the basis of prior credibility resolutions, the General Counsel's contentions that discrimination was involved in the reduction of Mathenia's work schedule in November, in the changes in work practices in the week of December 1 to 6, and in the arrangement for-the retention of demonstrators by the salesmen involved in the first layoff. Reaching now the issues concerning the layoffs , it is to be noted preliminarily that different factors will become mate- rial in determining the issue of discriminatory motivation according to whether Respondent substantiated or failed to substantiate its defense of economic justification. I shall therefore begin with the latter question, considering it out of its normal order, for it is one which is easily resolved and will facilitate consideration of the remaining issues . In brief, I find it to be manifest both from the slump in Respondent's business and from economic conditions generally that the layoffs were warranted . I note in addition to the uncontra- dicted evidence which Respondent offered, matters of com- mon knowledge (and concern) in the national economic situation. The slump in business conditions generally which began in the fall of 1969 continued not only through the winter and into the spring, but it became more pronounced. The entire automotive industry was directly affected, with cutbacks in productions and consequent layoffs following from a general decline in sales. Though the facts fully warranted Respondent in making the layoffs, its actions were nevertheless thrown under dark suspicion by reason of its long standing animus against Teamsters and Berdos' early threats to eliminate all sup- porters of that Union.13 However, an openly antiunion em- ployer is not precluded from discharging employees for cause, and Respondent was not precluded from making layoffs because of the worsening condition of its business if it were the real reason and not a pretext by which it sought to cloak a desire to discourage further pro-Teamsters senti- ments among the salesmen. Furthermore, even if the deci- sion to make the layoff were not discriminatorily motivated, Respondent may have made a discriminatory selection so as to reach Teamsters' supporters or the leaders in the move- ment. On the latter point we note , however, that all salesmen were required to be members of Local 1 under the union security provisions of the contract, that they were unan- imously in favor of making Local 604 their bargaining rep- resentative, and that they voted unanimously for the resolution which sought to accomplish^that result. Thus any layoff would inevitably result in removing salesmen who were both members of Local I as well as supporters of Local 604. Furthermore, the record showed plainly that Respondent's animus was directed most strongly against those who were backing the Teamsters' movement, partic- ularly Roberts, the president of Local 1 , who was at all times the leader, to Respondent's knowledge. The other officers of that Local, who presumably shared Roberts' sentiments, were the secretary, Francis Lurk, and the treasurer, Fred Ingrim, neither of whom was reached for layoff despite the 13 Sinclair's statement to Whittaker in November 1969, though coercive, indicated that Berdos had rejected his similar suggestion for solving the current problem. fact that Roberts was next in line in December and Lurk was next in line in January. Those who were chosen in each layoff plainly qualified under the criteria which Respondent set and none was shown to have any stature, save as rank- and-file members of Local 1. Though Mathenia and Mc- Bride were presumably involved in the first Teamsters' movement in 1968, the record is silent concerning any sub- sequent activity by McBride. Mathenia in turn resigned as treasurer and as steward of Local 1 in mid-September 1969, and the record showed no further activity on his part. Aside from the foregoing, the criterion which Respondent used, productivity, was free of apparent taint of discrimina- tion, though the General Counsel argues the contrary by suggesting that Respondent should more reasonably have chosen seniority. But the failure to follow seniority was without significance in view of the contract provisions and Respondent's reliance on advice of counsel that productivi- ty could properly serve as an objective criterion. It may also be noted that if Respondent had opted for seniority, the layoff would again have involved only union members and supporters, thus still leaving it open to a claim of discrimina- tion.14 Of final significance was the fact that the layoffs included other personnel, none of whom were recalled, while Res- pondent reinstated or offered reinstatement to the salesmen as vacancies occurred and as business improved.15 I therefore conclude and find on the entire record that the General Counsel failed to establish by a preponderance of the evidence that the layoffs of December 12 and January 30 were discriminatorily motivated. 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 em- ployees in the exercise of rights guaranteed in Section 7 of the Act as found in Section C, supra, Respondent engaged in unfair labor practices proscribed by Section 8(aXl) of the Act. 2. All salesmen of new and used passenger automobiles, excluding clerical and professional employees, guards and supervisors as defined in the Act, mechanics, parts employ- ees and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since on or about August 29, 1967, Auto- mobile Salesmen's Union, Local No. 1, has been the exclu- sive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 4. Respondent refused to bargain with Local 1 on August 22, 1969, by changing, without notice, preexisting condi- tions of wage payments and again on November 3, by pre- senting directly to the employees, without notice to or discussion with Local 1, the terms of a new wage proposal, thereby e a and unfair labor practices proscribed by Section 8(a 5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce u The recent case of Burns Fort, inc., 182 NLRB No. 113, presents an interesting comparison, for there the Board rejected the General Counsel's contention that discrimination was demonstratable from Respondent's use of seniority, on advice of counsel, instead of productivity as here. 15 I find without substantial basis the General Counsel's contentions that some of the salesmen were discharged . There was no dispute that both actions were announced as layoffs, and I have found also that Gilliam stated further that the men would be called back if business improved. SHERWOOD FORD, INC. within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in discrimination within the meaning of Section 8(a)(3) as alleged in the complaints in Cases 14-CA-5405 and 5462. 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 as out- lined below, which I find to be necessary to remedy and to remove the effects of the unfair labor practices and to effec- tuate the policies of the Act. 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 Sherwood Ford, Inc., its officers, agents, representatives, and assigns shall: 1. Cease and desist from: (a) Interrogating employees concerning the increase in union dues and the reasons for the change. (b) Imposing or threatening to impose changes in preex- isting conditions of wage payments and additional require- ments concerning work practices in retaliation for pro-Teamsters sentiments or activities. (c) Threatening to lay off or discharge employees because of their pro-Teamsters activities. (d) Reusing to bargain with Automobile Salesmen's Un- ion, Local No. 1, as the exclusive collective -bargaining rep- resentative of the salesmen in the appropriate unit herein found by changing unilaterally, without notice to and an opportunity to consult, preexisting conditions of wage pay- ments and by presenting directly to the employees , without notice to Local 1, the terms of new wage proposals. (e) In any like or similar manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, except as authorized in Section 8(a)(3). 2. Take the following affirmative action: (a) Post in its showrooms and offices , including new- and used- car sales offices, copies of the notice attached hereto marked "Appendix B".16 Copies of said notice, to be fur- nished by the Regional Director for Region 14, shall after being duly signed by Respondent's representative, be ost- ed by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in con- spicuous 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. (b) Notify the Regional Director for Region 14 in writing, within 20 days from the receipt of this Decision what steps Respondent has taken to comply herewith.17 I recommend that the complaints in these cases be dis- missed in all respects save those in which violations have been found above. 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted Pursuant to a Judgment of 139 the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 17 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director in writ- mg, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A AUTOMOBILE SALESMENS UNION Local No. I An Unincorporated Voluntary Association RESOLUTION KNOW ALL MEN BY THESE PRESENTS that pursuant to written notice given to each of the members a reasonable time in advance, a meeting of the membership of Automobile Salesmen's Union, Local No. 1, sometimes hereinafter re- ferred to as the "association," the membership being re- stricted to and comprising new and used car salesmen of Sherwood Ford, Inc., in St. Louis County , Missouri, was duly convened and conducted this 21st day of August, 1969, at which the following motion was duly made, seconded and passed by unanimous secret vote of all those in attendance, such members constituting more than a majority of the membership of the said association. "WHEREAS, said Automobile Salesmen's Union, Lo- cal No. 1 was organized by a person or persons who failed to perform any of the responsibilities, obligations and duties imposed upon organizers of a labor organi- zation; and "WHEREAS, since entry into a collective bargaining agreement with Sherwood Ford, Inc., said Automobile Salesmen's Union, Local No. 1 has appeared to be without clear purpose or function and its members and officers are without experience whatever as to collec- tive bargaining matters, and said association has not heretofore had in its employ or service agents or repre- sentatives experienced in any way to police or enforce the present collective bargaining contract entered into by and between said association and Sherwood Ford, Inc., nor has said association by reason of such absence of experience heretofore been able to effectively adjust or resolve grievances or to continue bargaining (such as reopening the contract) for and on behalf of the mem- bers of the association working for Sherwood Ford, Inc.; and "WHEREAS, Automobile Transport Chauffeurs, Dem- onstrators & Helpers, Local Union No. 604, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, sometimes her- einafter referred to as "Local 604", and its business representatives represent a great many automobile salesmen in the Metropolitan St. Louis area and its officers and representatives have a broad range of ex- perience in collective bargaining, experience which would be of inestimable value to the association, its membership and those it represents, and "WHEREAS, the membership of said association have determined and do hereby find as fact, that they and the association and members of the bargaining unit whom the association has been recognized to represent, will best be served for collective bargaining purposes by retaining the services of Local 604 for the purpose of aiding, assisting and appearing on behalf of the asso- ciation and its members and those it represents in col- 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lective bargaining and all other matters related to the hours, wages and other terms and conditions of em- ployment of the sales force employed by Sherwood Ford, Inc., "Now, THEREFORE, BE IT RESOLVED, that Automobile Salesmens Union, Local No. 1, forthwith retain for a period commencing from the date hereof for a time equal in length to the existence of the present bargain- ing agreement (whether in the same or modified form), and for all extensions and renewals thereof , but not less than one year, four months, ten days in any event, the services of Automobile Transport Chauffeurs , Demon- strators & Helpers, Local Union No. 604, and said Local 604 be and is hereby designated as a duly consti- tuted representative of the association to appear on behalf of and represent said association and the afore- said bargaining unit with Sherwood Ford , Inc., in all matters relating to collective bargaining and the wages, hours and other terms and conditions of employment of the said named employer's new and used vehicle salesmen, and said Local 604 shall be and is hereby authorized to do all things necessary and/or reason- ably convenient or desirable by it in such capacity in behalf of the association and the sales employees of Sherwood Ford, Inc., including without limiting the generality of the authority herein granted by such re- tention, the opening, re-opening, negotiation or rene- gotiation, and the cancellation of any collective barg^aining agreement with Sherwood Ford , Inc.; and "BE IT FURTHER RESOLVED, that in consideration for such services by said Local 604, authorized to be re- tained herein, on the tenth day of each month the asso- ciation is empowered to pay Local 604 an amount equal to that aggregate which said Local 604 would monthly derive by dues and initiation fees were those within the bargaining unit represented by the associa- tion under the aforesaid collective bargaining aggree- ment with Sherwood Ford , Inc. members of Local 604 and represented directly by it; and "BE IT FURTHER RESOLVED that the by-laws, if any, of the association be amended accordingly and that the president and secretary of the association and their successors be and they are hereby authorized and di- rected to take all actions and execute all papers, doc- uments and instruments as may be necessary or reasonably convenient to effect such retention of serv- ices, and said officers shall further regularly review all collective bargaining matters involving Sherwood Ford, Inc. with said Local 604 and its business repre- sentatives, and are authorized and directed on behalf of the association to follow and carry out all instruc- tions received from said Local 604 as it relates to mat- ters of collective bargaining." Dated at St. Louis County, Missouri, this 21st day of August, 1969. Gary R. Roberts President Francis Lurk Secretary APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning in- creases in Union dues or concerning the reasons for changes. WE WILL NOT impose or threaten to impose changes in preexisting conditions of wage payments or threaten additional requirements concerning work practices in retaliation for pro-Teamsters' sentiments or activities among our employees. WE WILL NOT threaten to layoff or discharge employ- ees because of their pro-Teamsters' activities. WE WILL NOT refuse to bargain with Automobile Salesmen's Union, Local No. 1, as the exclusive collec- tive-bargaining representative of the salesmen in the bargaining unit described below by changing unilat- erally, without notice and an opportunity to consult, preexisting conditions of wage payments or by pres- enting directly to the employees, without notice to Lo- cal No. 1, the terms of new wage proposals. The bargaining unit is: All salesmen of new and used passenger automo- biles, excluding clerical and professional employ- ees, guards and supervisors as defined in the Act, mechanics, parts employees and all other employ- ees. All our employees are free to become, remain, or refrain from becoming or remaining members of Automobile Salesmen's Union, Local No. 1, or any other labor organiza- tion, except to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) or the Act. SHERWOOD FORD, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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 Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167.