Boch Motors

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boch Dodge, Inc., Boch Rambler, Inc., and National Discount Corp., All d/b/a Boch Motors and Metropolitan Boston Automobile Salesmen Local Union No. 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.' Case I-CA-6375 June 30, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On February 10, 1969, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Charging Party 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 this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this 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 Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Boch Dodge, Inc., Boch Rambler, Inc., and National Discount Corp., all d/b/a Boch Motors, Norwood, Massachusetts, its officers, agents, successors, and The name of the Charging Party appears as amended at the hearing 'Unlike our dissenting colleague, we agree with the Trial Examiner and find that the Respondent did not violate Sec 8(a)(5) The Trial Examiner found that the Respondent was confronted with confusing simultaneous claims which, together, did not clearly delineate the unit Further, the Union' s insistence at the July 3 prehearing conference on a unit composed only of used-car salesmen is not consistent with its letter of June 20 or its RC petition and highlights the inherent ambiguity in its earlier claims. Consequently, we find that the Union did not make consistent claims and that the Respondent could have been justifiably confused as to the unit requested assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER BROWN, dissenting in part: Unlike my colleagues, I would reverse the Trial Examiner insofar as he found that the Respondent did not violate Section 8(a)(5) of the Act. The Trial Examiner concluded that because of inconsistencies between the unit claimed in the Union's letter of June 20, 1968, and that claimed in its RC petition filed June 21, no effective demand had been made for the unit alleged as appropriate in the complaint. I would find merit in the Charging Party's contention that the units claimed in both the letter and the petition are readily understandable as comprehending the unit alleged in the complaint. As more fully set forth in the Trial Examiner's Decision, the Respondent operates two locations in Norwood, Massachusetts, where it is engaged in the sale of new and used cars, trucks, and motorcycles and leasing and wholesaling cars. At one location it employs new-car, truck and lease salesmen, at the other, used-car, motorcycle, and wholesale salesmen. The Union's letter of June 20, 1968, was addressed to Mr. Ernest Boch, Boch Rambler, at one of the locations and claimed that the Union represented a majority of "your" salesmen, without further describing the unit. The RC petition of June 21 listed Boch Motors, Incorporated as the Employer and Ernest Boch as the Employer representative, gave the address of the other location, and claimed a unit consisting of "all salesmen employed by the Employer at its location in Norwood, Massachusetts." On June 24, 1968, the Respondent filed an RM petition in which it declared that it had received a claim from the Union to represent a unit of "all new and used car salesmen employed by the Employer at its 859 and 1201 Route One, Norwood, Massachusetts, locations." The complaint alleges the appropriate unit to be "all motor vehicle salesmen, including new and used car salesmen ... ," with the usual exclusions. The Trial Examiner gave controlling significance to the fact that different categories of salesmen were employed at each location and found that the Respondent was faced with confusing simultaneous claims because of the difference in addresses. That the Respondent was not under any misapprehension as to the locations involved is demonstrated by the RM petition it filed. The Respondent may not now persuasively contend that it did not receive a claim for the unit which in its petition it declared had been claimed. And, as argued by the Union, there is no significant difference in the meaning of the words "all salesmen" and "all motor vehicle salesmen." In view of the above, I would find that the Respondent was presented with a sufficient demand for recognition in the appropriate unit and that the Respondent's misconduct, which violated Section 8(a)(1) and (3), reveals the Respondent's rejection of the concept of collective bargaining and was of such nature as to tend to undermine the Union's majority 177 NLRB No. 93 BOCH DODGE, INC. 671 status and prevent the holding of a free election.' Therefore, I would find that the Respondent violated' Section 8(a)(5) and would order that it bargain,with the Union upon demand. 'N L R E v. Gissel Packing Company, Inc., et al , 395 U.S. 575 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Boston, Massachusetts on October 7-9, 1968. The complaint dated August 15, 1968, based upon charges filed and served on June 24 and August 6, 1968, was issued by the Regional Director for Region 1 (Boston,; Massachusetts) on behalf of the General Counsel of the -National Labor Relations Board (herein the General Counsel and the Board). The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices by various specified conduct, including its failure to bargain in good faith with Metropolitan Boston Automobile Salesmen Local Union No. 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America' (herein the Union), as the bargaining agent of the majority of its employees in an appropriate unit and by discriminatorily discharging employees and otherwise discriminating against them, thus violating Section 8(a)(1), (3), (4), and (5) of the Act. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENTS BUSINESS At all times material Respondent has maintained its principal office and places of business in the city of Norwood, county of Norfolk, and Commonwealth of Massachusetts' where it has been engaged in the sale, distribution, repair, and reconditioning of motor vehicles. In the course and conduct of its business Respondent causes and has caused large quantities of motor vehicle and related products to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes and has continuously caused substantial quantities of motor vehicles to be sold and transported from said Norwood premises in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. Respondent annually receives from the sale and servicing of said motor vehicles gross revenue in excess of $500,000. In addition, Respondent receives motor vehicles having an annual value in excess of $50,000 at its Norwood premises directly from points outside the Commonwealth of Massachusetts. At all times material herein Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Metropolitan Boston Automobile Salesmen Local Union No. 122 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America at all times material has been an labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Overall Picture and Issues In the spring of 1968 discussions took place between Respondent's used car salesmen about improving their remuneration . With this in mind several attempts were made by them to meet with Respondent's president Ernest Boch. Failing in this objective the employees began talking about getting a union to represent them. To this end, on June 17 used car salesmen George Brown, Salvatore Bruno, and Thomas Marshall attended a luncheon meeting with John McDonald and Manny Cuchiania, two salesmen then employed by Cadillac-Olds, an automobile dealer whose employees were currently represented by the charging union. In addition to their employment by Cadillac-Olds McDonald and Cuchiania were trustees and officers of the Union. Marshall had formerly been employed by Cadillac-Olds and had been active in the Union - having been instrumental in bringing it in. At this meeting the three employees signed union authorization cards. Brown also took a supply of blank cards with him when he left. Later that day at the used-car building he solicited and obtained the signatures of four of the remaining five used-car salesmen.' Thereupon he went to the new-car location and got the signatures of three out of the nine new-car salesmen then employed. During the ensuing days numerous discussions concerning the Union took place between the used-car salesmen during working hours both on the showroom floor and in their various offices. On several occasions management officials broke up these discussions. On one of these occasions, according to the undenied and credited testimony of Marshall, Supervisor Nick Perella "banged on the glass" at a group in Bruno's office and told them that if they "wanted to have a meeting" to have it on their own time. On Saturday, June 15, Marshall and Used-Car Manager Richard Boch were the last ones left at the end of the day, according to Marshall's undenied and credited testimony, when Marshall addressed Boch and asked him if he knew that the men were talking about having a union . Marshall indicated that the men had approached him on the matter and suggested to Boch that the latter "ought to sit down and talk with them." Boch "more or less laughed it off." In his testimony, Boch admitted that Marshall had stopped him as he was leaving on that day At the hearing the General Counsel's motion was granted to change the name of the union from "Teamsters Local Union No. 122 a/w International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America" to "Metropolitan Boston Automobile Salesmen Local Union No 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America " 'It operates at two locations in Norwood situated about three fourths of a mile apart New car sales, leasing and truck sales are handled at its 1201 Providence Highway location while used car and motorcycle sales and wholesale operations are handled at its 859 Providence Highway site 'Marshall obtained the signature of Norman Kelsey, the only other used car salesman, on the following day at the latter's home. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and informed him that some of the salesmen had asked Marshall how to go about starting a union . Boch just said "Oh" and walked out the door explaining on the stand that he had already "heard this." According to Boch's further testimony he did not take this information seriously and thought nothing of it. On Thursday June 20, according to the undenied and credited testimony of used -car salesman Joseph Pimental, he was called into the conference room by Richard Boch. There they had a discussion involving Pimental's production during which Boch asked him "Do you know anything about a union?" Pimental said that he did not. The following day, Friday, June 21, five of Respondent's salesmen were discharged4 - four from the used-car department and one from the new -car department, all card signers. In the meantime (also on June 21) the Union had filed an RC petition (1-RC-10128) describing the unit as "all salesmen employed by the employer in its location in Norwood, Massachusetts," giving the employer's name as Boch Motors Incorporated, the employer's address as 859 Providence Highway, Norwood, Massachusetts. The Union had also mailed a letter to Respondent on June 211 as follows: June 20, 1968 Mr. Ernest Boch Boch Rambler 1201 Providence Hghwy. Norwood, Mass. Dear Mr. Boch: Teamsters Local Union No. 122 represents the majority of your salesmen and we are willing to prove it in any reasonable manner. We are requesting a meeting to sit down at the bargaining table with you as soon as possible. Sincerely yours, Ralph J. Gilman RALPH J. GILMAN Secretary-Treasurer Business Agent On Saturday, June 22, Boch was at the Boston Harbor Marina where he keeps a boat. While there he learned of the Union's letter by means of a telephone call from his office. He indicated that he would be in the following morning to look at it. At the office the next day, Sunday, June 23, he called in his attorney and turned the matter over to him for handling. Also on Sunday, June 23, used-car salesman Brown talked to several of the employees' and was informed by them that they would support a strike in protest of the discharges - Lindsey and Krajewski with reluctance however. On Monday, June 24, Respondent filed an RM petition (1-RM-700) calling for a unit composed of "all new and used car salesmen employed by the employer at its 859 and 1201 Route one Norwood, Massachusetts locations" with the usual exclusions . Also on Monday, June 24, Business Agent Gilman called on Boch and informed him that he represented "the salesmen" and that they were going out on strike. Boch replied that he had received the Union's letter, had turned everything over to his lawyer 'Raymond Casella , Anthony Corsi, Thomas Marshall, Joseph Pimental, and William Scanlon. 'The letter was dated June 20 but postmarked June 21 'He named Bruno, Marshall, Kelsey, Lindsey, Pimental, Scanlon, Grenga, and Krajewski. and suggested that Gilman see the lawyer. Gilman then proceeded to establish picket lines at both of Respondent's Norwood locations. However, when the picketing commenced four of the salesmen, Grenga , Krajewski, Lindsey and Kelsey had changed their minds and refused to participate. According to Brown's undenied and credited testimony he called Krajewski on the telephone and asked why he was not out on strike. Krajewski said that he along with Grenga had sat down with management and had a long talk and that he had "come to his senses." Late in the day on Tuesday, June 25, the strike was called off as a result of an agreement by the Company to take the discharged employees back (which it did) and, according to Gilman 's testimony, to agree "to any kind of an election" that the Union wanted . There was no explanation by Gilman as to what he meant by the phrase "any kind of an election that the union wanted." The General Counsel in a colloquy about it referred to Gilman's testimony as having "indicated that the Company was willing to go to an election on any unit" the Union presumably wanted. According to Boch's testimony the election was to involve a unit of at least the new and used car salesmen. On July 3 a prehearing conference was held at the Regional Office for the purpose of setting up an election in connection with the RC and RM petitions. At this conference the Union insisted on a unit composed only of the used car salesmen . As a result no election was arranged. On August 15, 1968, the complaint was issued alleging a refusal to bargain by Respondent with the Union as the collective-bargaining agent for an appropriate unit described as including "all motor vehicle salesmen, including new and used car salesmen , employed by Respondent at its Norwood, Massachusetts premises" with the usual exclusions. The main issues in this case are (1) whether or not the above discharges were discriminatory within the meaning of Section 8(a)(3) of the Act (along with some other alleged discrimination involving treatment of the salesmen after the strike and some independent 8(a)(1) allegations) and (2) whether or not Respondent's failure to recognize the Union violated Section 8(a)(5) of the Act. The Refusal to Bargain Among the many defenses raised by Respondent to the refusal to bargain allegation is the contention that no effective demand was made by the Union for recognition in the unit alleged to be appropriate in the complaint; that lacking this essential element of proof, Respondent was not obligated to bargain and thus did not violate Section 8(a)(5) of the Act. I agree with this contention. The law is clear that an employer is not required to bargain on the basis of a union's request for recognition where the union fails to make clear for what unit it is requesting recognition or where the bargaining unit requested by the union is not an appropriate unit. Here the Respondent was faced with two confusing simultaneous claims, one reflected by the Union's letter (which would appear to apply only to the new car, truck and possibly lease salesmen) and the other by the RC petition (which would seem to apply to the used car salesmen and possibly the motorcycle and wholesale salesmen). Whatever Respondent may have surmised about this situation, it can hardly be said that the prompt filing of the RM petition seeking a unit of new- and used-car salesmen was any indication that Respondent was BOCH DODGE, INC. 673 not genuinely perplexed as to what unit the Union was claiming to represent. Whatever the effect was at the July 3 Board conference of the Union' s insistence on a unit composed only of used car salesmen or whether such a unit was an appropriate one is unnecessary for me to decide since the General Counsel' s allegation of refusal to bargain goes not to such a unit but to a unit composed of .,all motor vehicle salesmen , including new and used car salesman . . . ." Nowhere in the record is there any showing that a request was made by the Union for recognition in such a unit. Accordingly I shall dismiss the 8(a)(5) allegation of the complaint. Discrimination A. The Discharges Respondent's defenses regarding the discharges are that (1) it had no knowledge of the union activity of the employees prior to the time they were discharged and (2) that the discharges were made solely for economic reasons. 1. Knowledge of union activities Richard Boch's admission that on June 15 Marshall had informed him that the employees had been inquiring how to go about starting a union should be sufficient in the circumstances here' to counter Respondent's contention that it had no knowledge of the union activity at the time of the discharges. But even then this knowledge was not news to Boch as appears from his further testimony that he had already heard about it. I reject his testimony that he did not take it seriously and thought nothing of it as being patently incredible. In any event if he did not take it seriously someone in authority certainly did as reflected by Respondent's subsequent actions, 2. The reasons for the discharges (a) Called as a witness under Rule 43(b) of the Rules of Civil Procedure Ernest Boch testified that there was "an individual reason for everyone of" the discharges' including "inadequate performance of some of the salesmen ..." and the fact that "business was slow at the time" but slow only in "the sale of used cars primarily and new cars secondari(ly)." This letdown he attributed to the assassination of Senator Robert Kennedy. A definite decrease in sales occurred immediately after his death and about a week later his managers informed him that if the slowdown continued they "would have to make some changes." Daily reports showed that the trend was continuing but when he asked them what they were going to do about it they would say, "Well, let's keep on waiting and see what happens." Nevertheless the managers finally came to him and "requested that they let some men go" and gave him the names of those to go. He said, "Well, if this is what you guys want to do, go ahead." 'he union discussions among the employees preceding the discharges were a matter of note to supervision and apparently interpreted as such as shown by Perella's comment on one occasion that if they "wanted to have a meeting" to have it on their own time 'Elsewhere in his testimony Boch was unable to state what the individual reasons for the discharges were except for Marshall about whom he said they had checked with former dealers Marshall had worked for and had received reports which were not "too good." Whether these reports included information that Marshall was generally considered in the Testifying later at the call of Respondent Boch now claimed that the slowdown in business was not the result of a drop in sales but that the profit was lower.' Actually for the period March through June the trend in used-car sales was slightly up showing 108 sales in March, 113 in April, 115 in May, and 117 in June. Moreover, the weekly total in used car sales had increased from 18 the week ending June 15 (the week following the assassination)'" to 26 for the week ending June 22 (the week in which the discharges took place) further refuting Respondent's claim that a continuing drop in sales was the reason for the discharges. (b) On Monday June 24 at a time when the five used-car salesmen had been let go because they were not needed Respondent nevertheless found it necessary to bring into the used-car department two salesmen from a different shift of the new-car department. In addition to this it also appears that Respondent hired a used car salesman on June 24. Richard Boch explained in his testimony that the new man had applied some weeks before but that he was not needed until the employees went out on strike. Actually in addition to the dischargees only one employee went out on strike. When asked, after testifying that business had been steadily falling off since April, if there was any reason why Respondent waited so long to let some salesmen go Richard Boch replied, "yuh, because to get help, to replace them is difficult, you know." (c) According to the undenied and credited testimony of Brown during the several years he had worked for Respondent there had never been a layoff or discharge for a lack of work. Not even in 1966 when the imposition of a state sales tax of 3 percent caused a decline in business which lasted several months and which was much worse than the brief period of slackness in June of 1968. (d) Marshall testified that Richard Boch had told him when he was discharged that business was slow and for that reason he and four others as the last hired" were being terminated. Marshall pointed to the bulletin board where the sales records of the men were posted and where he was second or third at the time and said, "Mr. Boch you don't let good men go when business is slow. You keep good men."'= Boch said, "Well, those are my orders. That's what I have to do." (e) Marshall testified credibly that in a conversation with Ernest Boch on July 22 or 23 when he had asked Boch why he had been discharged Boch told him that the discharges "he figured ... would end the union before it got started." Boch although admitting that he had a conversation with Marshall on this occasion did not contradict Marshall's testimony. automobile industry to be a union organizer was not indicated by Boch in his testimony. However, according to the undemed and credited testimony of Marshall, in a lengthy conversation that he had had with Boch on July 15, Boch had told him that it was "general knowledge in the automobile industry" that Marshall was a union organizer. 'Although he testified that he had records to prove this no such evidence was offered to corroborate this testimony. 'There is no question that the second week in June (the week following the assassination) was the lowest week for used-car sales for the entire period of April through June. "This was not the case with Casella "In the less than 2 months that Marshall had worked for Respondent he had established himself as a good salesman , as admitted by both Richard and Ernest Boch According to Marshall' s credited testimony the first month he was there he received a bonus for exceeding the quota he had been given and at the time he was discharged he was in second or third place 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing and considering the timing of the terminations, their abruptness and lack of prior notice, that they occurred just before a busy day - Saturday, and that in the last analysis they would do nothing to improve Respondent' s profit position since they involved only commission payments rather than wages , I am convinced and find that the discharges were directly tied in with the union activity of the employees and were for the purpose of discouraging the continuation of such activity as admitted by Boch in his remarks to Marshall. The Other Discriminatory Conduct Substantial evidence was adduced by the General Counsel that on June 26 after the men had been reinstated and the picketing had ended Respondent announced and began enforcing rules prohibiting conduct previously permitted by the salesmen as follows: 1. They were no longer allowed to use the restroom off of the main showroom . 2. They were no longer allowed to use the conference room for rest periods or for eating their lunch. 3. They were no longer allowed to go to the new car building or take customers there to show them recently traded cars. 4. They were no longer allowed inside the cashier's office when turning in deposits but now had to pass them through a window . 5. If late to work they were now required to take the day off where formerly they would just be talked to or fined $ 1 which went into a sales manager's fund . 6. In place of demonstrators and late model cars they were now required to drive older cars. With the possible exception of the restriction imposed on the cars the salesmen would now be permitted to drive Respondent offered no valid explanation at the hearing or to the salesmen at the time for the abrupt change in its policies other than that it was necessary and good business practice. With respect to the restriction on the choice of cars the salesmen could drive Respondent did offer some evidence that might tend to show that this was the result of a new advertising program pertaining to new tires on all used cars offered for sale. Even here, however, Respondent's failure to bring in any documentary proof as to exactly when this program started (such as newspaper ads showing the date of publication ) detracts from the generalizations it offered in defense . In any event a remark by Richard Boch to Brown at the time that the Union called the men out on strike would seem to indicate that the restrictions on the car use were imposed in retaliation for the union activity of the employees - i.e., the strike. Thus, according to Brown 's undenied and credited testimony, when Richard telephoned to inform Ernest Boch that the men were going out on strike, he turned to Brown and said , "Are you happy now, George? . . . Wait til you see what you drive home tonight, you guys will pay for this." On the basis of the foregoing and the circumstances surrounding the discrimination demonstrated by Respondent in connection with the discharges, I find that the enumerated restrictions all were imposed in retaliation for the employees' union activities and tended to and were meant to discourage such activity in violation of Section 8(a)(3) of the Act. In this connection I reject the General Counsel's contention that Marshall's suspension by Supervisor Nick Perella on July 18 for being late was also a violation of Section 8(a)(4) of the Act. Marshall had been at the Board office on that day giving a statement and told Perella that that was why he was late. Perella's comment in effect was that he did not care what Marshall's reason was for being late. It is apparent that regardless what the reason was for Marshall ' s tardiness on this occasion he would have been suspended under Respondent's original discriminatory motive. Independent Interference , Restraint, and Coercion According to Brown's testimony, on the evening of July 3 he was brought from the used car location by Supervisor Rossi to Boch's office at the new car location . When he got to the conference room on the second floor he found most of the used car salesmen there plus Richard Boch. Not present, however, was Tom Marshall . A discussion was going on between Richard Boch and the salesmen regarding the current "pay plan." Brown sat down to participate. Shortly he was informed that someone wanted to see him and Rossi led him into Ernest Boch 's office. There he and Boch alone engaged in an hour long discussion centering on the Union and Brown's reason for supporting it. Boch asked Brown if he "was mad at him" and said that "unions are good in their place" but that he could not understand why Brown "was doing it to him." He told Brown that "if the Union got in he'd liquidate the business . . . sell out." Brown's explanation to Boch was that he "was tired of the attitude towards an automobile salesman ... not much higher than garbage ..."; that he "wanted to be a little bit more respectable "; to be given a salary and in effect a chance to improve his economic stake in the business; that "when men give their lives to a certain employer, the man should ... take care of them." Boch admitted that perhaps he had "made a lot of mistakes" and asked why Brown had not come to him to talk about it. Brown replied that Boch had refused to see him or the other salesmen . Admitting that he was wrong about that Boch asked , "What if you did receive a salary and you did receive these benefits? Would you change your mind about the Union and vote against it?" Brown answered, "Apparently the men out in the conference room are down here for that reason . . . I suppose .. . they all feel the same way I do . . . I probably would." Brown then asked if "it would apply to everyone" and Boch said, "No, he couldn't pay everyone . because there weren't too many guys that had been with him any given amount of time." Then Boch agreed to a $50 a week salary for salesmen of at least 2 years tenure. Brown then asked about the other salesmen , "when it's over, will they be gone?" Boch in effect indicated that they would not be discriminated against. Regarding Tom Marshall, however, he said, "forget it. The Union is out, so is he." He pointed out that "he felt that Tom Marshall was a union organizer." He also indicated that he wanted the unfair labor practice charges dropped and the men to vote against the Union. At the end of the discussion the rest of the men were brought into Boch's office where he made the same proposition to them as he had made to Brown including an increase in the sales commission from 3 1/2 to 4 percent. Boch stated that the plan would become effective as soon as the "union business" was over indicating that "if (the) ... Labor Board audited the books . . . they'd know that we made some sort of deal." Boch also told the employees at this time "that he did not want anyone telling Tom Marshall about the meeting ... because Tom Marshall would go to the Union and tell them ." As the meeting broke up Boch asked Bruno if he "was ... happy about the new proposal ," and said, "Sal, I saw that house, and it looks pretty good."" "Bruno was involved in a real estate transaction that will be discussed BOCH DODGE, INC. 675 Brown also testified that before leaving that evening Boch talked directly to him about Marshall and asked Brown if he thought he could talk Marshall into quitting. Brown promised to try and Boch said that he would have his brother Richard check with Boch the following day which Richard did . At that time Brown had not heard from Marshall. On July 16, according to Brown's further testimony, Boch called him to the office and told him that he thought that Bruno was going to file unfair labor practice charges against him because of a misunderstanding regarding a house deal involving Bruno . Boch asked Brown to find out if this was true . The next day Boch called Brown at his home and told him that he now had learned that Bruno indeed was filing charges and asked Brown to stop him. Boch said something about there being "two days left within the 30-day range to agree upon an election" and that the filing of charges at this time would "shatter it a little bit." Boch added that "until this is over , you fellows can't receive the salary...." At work later that day Rossi asked Brown if he was going to do what Boch had asked him to do pointing out "basically . . . what Ernie said about the 30 days." Brown testified further about a conversation he had with Richard Boch on July 19 as follows: He just said, "I can' t understand," he says, "Bruno trying to blackmail Ernie into buying him a house." And he says, "this will be all brought up into court." "Well," I says, "Honestly, Richard, if I am subpenaed into the court room, I am not going to perjure myself for you or the union." Richard then said, "you bet your life Bruno will be the first one out of the door when this is over." Brown's testimony as to what took place in the whole group was corroborated by and augmented by Bruno. According to Bruno's testimony Boch also agreed to lower the penalty clause for selling under the sticker price from 25 to 20 percent of the salesmen's commission; but he refused a request by the Rhode Island salesmen to have gasoline furnished to them. Neither Richard Boch nor Rossi in their testimony alluded to what took place at the July 3 meeting with the employees. In his testimony Ernest Boch denied in effect taking the initiative for the meeting with the employees that night; denied making an agreement with Brown and denied threatening to liquidate the business. I credit Brown's version . In doing so I do not agree with Respondent's contention that Brown "openly exhibited hostility toward the Respondent throughout the proceeding and was an easy witness for the General Counsel to lead while building his case ." On the contrary it was apparent to me at first that Brown was far from a willing witness when interrogated by the General Counsel. Apart from this initial reluctance by Brown as demonstrated by a lack of recollection and vagueness on his part, as his stint on the witness stand wore on he became more definite in his testimony and at one point when Respondent's counsel was trying to induce him to deny that Boch had threatened to liquidate the business if the Union came in, Brown answered, "No, Mr . Tobin. I signed my name to that. That is . exactly what he said." By and large my impression of Brown was that he was not happy about being a witness but that in anything definitive that he said on the stand he was saying it truthfully to the best of his ability and, as he told Richard Boch, he had no intention to perjure himself in favor of more fully below. the Respondent or the Union. Regardless whether the employees met with Boch on the evening of July 3 at their request or not I find as contended by the General Counsel that at this time Respondent made promises of benefits and threats of reprisals to them for the purpose of influencing the employees in their support of and activities on behalf of the Union thus interfering with , restraining and coercing them in the exercise of rights guaranteed them in the Act in violation of Section 8(a)(1) thereof. I also find that Boch's inquiry of Brown in substance as to why he had taken the action he did on behalf of the Union amounted to illegal interrogation of Brown ." I further find that Boch's request on July 3 to Brown to try to get Bruno to resign and his request to Brown of July 16 to find out if Bruno was filing unfair labor charges and his request to Brown of July 17 to stop Bruno from filing unfair labor charges all amounted to further violations of Section 8(a)(1) of the Act. Some weeks before the Union came into the picture Bruno had enlisted Boch' s aid in attempting to obtain mortgage money to purchase a house. The bank had indicated that it was not handling mortgages but would try to do something because of Boch's interest . According to Bruno's testimony he had heard nothing further until the night of July 3 when Boch brought it up . At that time he told Bruno that the house sounded like a real good investment and that "the company should buy the house for (him) and ... hold the mortgage." Bruno "of course . .. accepted." In a discussion with Richard right after this Bruno asked how Respondent intended to handle the matter. Richard told him that Boch Reality would buy the house and hold the mortgage. Also at this time Richard asked Bruno if he wanted a 25 or 30 year mortgage. Some days later, according to Bruno's further testimony, he again talked to Richard who told him that before they went through with the deal "he wanted his father, Andrew Boch, to look at the house to make sure the investment was sound ." Thereafter on about July 12 Bruno arranged to show the house to Andrew Boch who "was very pleased with it" and indicated that it was an excellent buy. On July 16 Bruno called Richard and "told him to get everything prepared" for settlement within the next couple of days . That afternoon when he went to work Richard told him "that everything was off." Bruno was upset and asked for an explanation . The only thing Richard said was, "I don't know." Bruno then went to see Ernest Boch . Boch told him that he would not buy a house or obtain a mortgage for him or anyone else. In his testimony Ernest Boch offered an explanation which amounted to a claim that Bruno had misunderstood what Boch had indicated he would do in this matter. Whatever the truth here I find nothing in the evidence to support the General Counsel's contention that Boch's failure to aid Bruno in his deal amounted to a "reprisal for Bruno's continued support of the Union in violation of Section 8(a)(1)." So far as the record shows Boch had already succeeded in winning Bruno and the other employees to his side by his previous illegal promise to them. There is no evidence of any action on Bruno's part which would have called for any more coercive conduct toward him by Respondent. Accordingly I reject the General Counsel's contention. "Richard Boch's inquiry of Pimental on June 20 as to whether Pimental knew anything about a union amounted to further illegal interrogation chargeable to Respondent. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One other contention of the General Counsel I reject. According to Brown 's testimony, on June 24, the day of the strike, Respondent contrary to past practice monitored his telephone calls." Apparently as a result of this monitoring Richard Boch accused Brown of calling customers and telling them that they could not pick up cars that they had purchased . In his testimony Brown admitted that the accusation was true . Whatever Respondent's conduct amounted to here I would not call it surveillance of union activities as contended by the General Counsel. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 3. By interfering with, restraining, and coercing its employees in exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By eliminating or diminishing employee privileges and by discharging Raymond Casella , Anthony Corsi, Thomas Marshall , Joseph Pimental, and William Scanlon on June 21 , 1968, because of their union activities thereby discouraging membership in the aforesaid labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 5. Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8(a)(4) and (5) of the Act. The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Although I have found that the June 21 discharges by Respondent violated Section 8 (a)(3) of the Act there appears to be no need for an affirmative order in this connection since the matter of the discharge was settled by the parties and the men were reinstated . As for the other acts of discrimination found herein they were mostly in the nature of harassment rather than economic and as such will be more or less adequately remedied by a cease and desist order . To the extent that Respondent's conduct may have had a possible adverse economic affect (such as a conjectural loss of a sale when a salesman was discriminatorily sent home for being late) it is too speculative a situation upon which to attempt an affirmative order. In view of the nature of the unfair labor practices committed, I am of the opinion that the commission of similar unfair labor practices may be reasonably anticipated. I shall therefore recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed it by Section 7 of the Act. 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. Boch Dodge, Inc., Boch Rambler, Inc., and National Discount Corp., Inc., all d / b/a Boch Motors is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Metropolitan Boston Automobile Salesmen Local Union No . 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. "The Union had agreed that Brown instead of striking should stay on the floor during the strike to insure against any loss of commissions to the salesmen as a result of deliveries being made during the strike. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent Boch Dodge, Inc., Boch Rambler, Inc., and National Discount Corp., all d/b/a Boch Motors, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of Metropolitan Boston Automobile Salesmen Local Union No . 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or of any other labor organization , by discharge of employees or elimination or diminution of employee privileges or benefits or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with economic reprisals if they should vote for or chose the union to represent them as their collective-bargaining agent. (c) Illegally interrogating its employees concerning their union membership or activities. (d) Promising or granting benefits to its employees in an effort to cause them to reject the Union as their collective-bargaining representative. (e) Soliciting employees to prevail on fellow employees to cease their employment with Respondent for the purpose of discouraging union activity among employees. (f) Soliciting employees to prevail on fellow employees not to file unfair labor practices against Respondent or engage in other activity protected by the Act. (g) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights to self-organization, to form organizations, to join or assist Metropolitan Boston Automobile Salesmen Local Union No. 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its used-car and new-car locations in Norwood, Massachusetts, copies of the attached notice marked "Appendix."" Copies of said notice on forms "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the BOCH DODGE, INC. 677 provided by the Regional Director for Region 1, shall be posted by it immediately upon receipt thereof, after being duly sighed by Respondent, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 1, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith." Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region t , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Metropolitan Boston Automobile Salesmen Local Union No. 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization , by discharging employees, eliminating or diminishing employees' benefits or privileges, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with economic reprisals if they should vote for or chose a union to re resent them as collective-bargaining agent. WE WILL NOT illegally interrogate our employees concerning their union membership or activities. WE WILL NOT promise or grant benefits to our employees in an effort to cause them to reject the union as their collective-bargaining representative. WE WILL NOT solicit our employees to prevail on their fellow employees to cease their employment with us for the purpose of discouraging union activities of our employees. WE WILL NOT solicit employees to prevail on fellow employees not to file unfair labor practices against us or to prevent them from engaging in any other activity protected by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join, or assist the above-named union, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. All of our employees are free to become or remain, or refrain from becoming or remaining, members of Metropolitan Boston Automobile Salesmen Local Union No. 122 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. BOCH DODGE , INC., BOCH RAMBLER, INC., AND NATIONAL DISCOUNT CORP., ALL D/B/A BOCH MOTORS (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3353.