Jerry Roth Chevrolet, Inc.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jerry Roth Chevrolet, Inc. and International Associa- tion of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO. Case 27-CA-3213 November 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September, 14, 1971, Trial Examiner Herman Corenman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed cross-exceptions and a 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Jerry Roth Chevrolet, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. r The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3). We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CoRENMAN, Trial Examiner: This case was tried at Denver, Colorado, on July 29, 1971, on a complaint issued against Jerry Roth Chevrolet, Inc., herein called Respondent, on May 7, 1971, pursuant to a charge filed by International Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, herein called the Union, on March 30, 1971. The complaint alleges acts of interrogation of employees and threats of reprisal by the Respondent's president in violation of Section 8(a)(1) of the National Labor Rielations Act, as amended, herein called the Act. The Respondent's answer denies the alleged violations. Upon the entire record, observation of the demeanor of the witnesses, oral argument by the parties, and the brief of the General Counsel, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that the Respondent is a Delaware corporation with its principal place of business at Denver, Colorado, where it is engaged in the retail sale of automobiles, parts, and services. In the course and conduct of its business operations during the past year, the Respondent had retail sales in excess of $500,000 and received directly from points and places outside the State of Colorado goods and materials valued in excess of $50,000. I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION INVOLVED The Union, International Association of Machinists and Aerospace Workers and its District Lodge 86 , AFL-CIO, is now, and at all times material has been , a labor organization within -the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues In issue is whether the Respondent's president, Gerald Roth, engaged in the following conduct in alleged violation of Section 8(a)(1) of the. Act: (1) interrogated employees concerning their activities on behalf of and in support of the Union; (2) asked an employee if he had attended a union meeting; and (3) threatened an employee that the Respondent would not negotiate with the Union, would close its doors before negotiating with the Union, and there would be no work if the employees selected the Union as their representative. B. Background The Union during March 1971 was openly conducting a union organizational campaign of service department employees of automobile dealers in the Denver area. The Denver daily newspapers, through advertisement and news items, publicly announced two meetings to be held Saturday, March 20, 1971, at 10 a.m. and at 2 p.m. for all auto dealer mechanics and other service department employees, at the Denver Labor Center. The newspaper advertisement in the March 18, 1971, Denver Post announced the object of the meetings "to formulate plans-to gain recognition and bargain for our various skills and related services." Mr. Gerald Roth, Respondent's president, testified that he had received a complaint from another automobile dealer that one of his employees had come to that dealer's premises to discuss union organization with his mechanics. Mr. Roth agreed with the complaining dealer that this was improper and promised to check on it. He ascertained on checking with his service manager, Bob Dobbins, that Bill Humphrey was the employee who had visited the other 194 NLRB No. 57 JERRY ROTH CHEVROLET, INC. 353 auto dealer's establishment the previous day. Mr. Roth also learned on the morning of March 24 that three of his mechanics were wearing union buttons. They ' were Humphrey, Woolverton, and Sixta. Roth first talked to Humphrey and then to Woolverton. Roth testified, "I felt it was my duty as the owner to investigate; not to investigate but to see if there was a gripe, what his chief gripe was." - About 10 a.m. that March 24 morning, Roth approached Woolverton who was then at work in his service stall and asked if he could speak to him. Woolverton accompanied Roth to the office of the service manager where Roth engaged him in a conversation which lasted 5 to 10 minutes. No one else was present during this conversation. C. Woolverton's Version of the March 24 Conversation According to the testimony of Woolverton, Roth began the conversation by saying, "Are you for the union," to which Woolverton replied "yes." Roth then asked, "What do you hope to gain," and Woolverton replied, "Better wages, better benefits, insurance, things of that nature." Roth said, "It won't work," and then asked, "Are you aware of the dealer situation in the Oakland area?" Woolverton replied that he was. Roth said that there were many dealerships that were bankrupt and closed down and many mechanics out of work because the Union had tried to organize them. Roth told Woolverton that his job was better than no job at all, like many workers were experiencing in the Oakland area. Roth went on to say that he could not afford to pay any more because the service department was $10,000 in the red. According to Woolver- ton, Roth further stated, "What more can I give, I can only give so much"; and, Roth said further "you have been talking with guys in the service department that are for the Union, haven't you," and at another point, Woolverton testified that Roth said, "I will not, negotiate; I will close the doors before negotiating." Roth said further, according to Woolverton, "We gave you a break by hiring you from George Irwin Chevrolet, and then you bring their problems with you and it is just like slapping me in the face." Woolverton replied, "No it is not personal; I am just fighting for something I believe in and want to see happen." Woolverton testifies that Roth said, "He will close it down before he negotiates and there wouldn't be any work for anybody." Toward the end of the conversation, according to Woolverton, Roth said, "Did you attend that meeting on Saturday morning, to which Woolverton replied, "I don't believe I will answer that question; do you know that what you are saying can be used against you." i Roth acknowl- edged it could. Woolverton told Roth that he felt he was a good mechanic and he would continue his good work and that the union matter would not affect his work. Roth replied, "Fine, that is all I want out of you." Roth told Woolverton he knew Woolverton was a good mechanic because Service Manager Bob Dobbins had told him. According to Woolverton, Roth then said, "Before you 1 Woolverton testified he made this remark to Roth because at the March 20 meeting at the union hall a paper was distributed to those make any decisions, look into the situation more thorough- Y, •) Woolverton testified he had never been alone with Roth prior to this conversation. Woolverton quit working for the Respondent in the latter part of June 1970 to take a job with another auto dealer. The parting was on a friendly basis, and before leaving, Woolverton stopped in to thank Roth for his employment and for providing him additional schooling while in his employ. D. Roth's Version Roth's version of his March 24 conversation with Woolverton differs in some respects from Woolverton's. Roth testifies he started the conversation with the remark, "Evidently you are unhappy," and Woolverton replied, "I want to make money. I want to go to college. I want to be an instructor." Roth then said, "Well, you have been just working for a short time. I understand you are a good mechanic. We are giving you as much work as we possibly can." Roth testified he noted that Woolverton was wearing the union button, and he inquired if Woolverton was aware of some of the Respondent's problems. He also pointed out to Woolverton Respondent's fringe benefits, such as insurance, Blue Cross-Blue Shield, vacations, and life insurance and inquired of Woolverton if he was aware of these company benefits as he had been with the Respon- dent only 2 or 3 weeks at the time. Roth agrees that he ,did mention the problem in Oakland where dealers have gone out of business, and agrees that he told Woolverton the Respondent's service department had lost $10,000 in ,the year just concluded. Roth testified he emphasized that, the Respondent was paying the highest percentage rate of the West Colfax dealers. Roth testified he did not ask Woolverton if he was for^the Union; he assumed as much because Woolverton was wearing the union button. Roth further denied that he said in substance to Woolverton that he would not negotiate, he would close the doors before negotiating. Roth testified further that he said nothing about "closing the doors specifically," but did state in effect that "I had lost $10,000 in the Service Department, it is a tough department to break even on, to beat the other high demands when people are already griping about paying these rates." Roth denied that he said anything about giving Woolverton a break by hiring him from George Irwin Chevrolet, and testified he had been unaware that Woolverton had worked at George Irwin Chevrolet. Roth further denied that during this conversation he asked Woolverton if he had attended the Saturday union meeting or any other union meeting. Roth acknowledged that at one point during the conversation, in answer to a question, by him, Woolverton replied, "I won't answer the question.,Do you know that what you said can be used against you?" Roth testified that this was in connection with "discussing union activities, the button, the badge he was wearing." Roth testified he told Woolverton "in no way could I influence him one way or the other, and it was strictly his present entitled "Fair Warning," describing conduct employees were prohibited from doing and protected activities employees could engage in 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to make." Roth also recalls telling Woolverton, "Well, Bob Dobbins, service manager, has informed me you are a very capable employee." Roth testified that at the time he conversed with Woolverton on March 24, he was unaware of the March 18 and 19 newspaper publicity concerning a union meeting or that there had been a union meeting on March 20. Roth concedes that when he spoke to Woolverton on March 24, he did not tell Woolverton that he did not have to speak with him if he didn't want to. Analysis and Conclusionary Findings The Respondent, while conceding that the Respondent's president, Gerald Roth, engaged Woolverton in a conversa- tion concerning the Union on March 24, denies that during this conversation Roth in effect asked Woolverton (1) are you for the Union; (2) did you attend the Saturday union meeting; or (3) threatened that he would not negotiate with the Union, he would close his doors first. Woolverton has testified that the aforesaid interrogation and threats of reprisal were made by Roth, and Roth denied having made them. I credit Woolverton's testimony that the remarks were made and do not credit Roth's denial. Initially, it is noted that Roth made no notes of his conversation with Woolverton whereas Woolverton on April 1, 1971, only 1 week after the March 24 conversation, gave an affidavit to a Board agent setting forth, among other things, the alleged interrogation and threats made by Roth which are in issue. The affidavit, which appears in the record as Respondent's Exhibit 1, agrees in substance with Woolverton's testimony at the hearing. Because Woolver- ton's description of the March 24 conversation was set forth in writing when the facts were fresh in his mind, his testimony, which I find agrees with his April 1 affidavit, is more reliable and accurate than Roth's. Additionally, it is pointed out that Woolverton left the Respondent under friendly conditions and feels obligated to the Respondent for the free schooling he received while in Roth's employ. Under these circumstances, there is little reason to believe that Woolverton would be less than candid and objective in relating his March 24 conversation with Roth, whereas Roth, as is obvious, still has an interest as any part litigant, to maintain his position of "no violation." Additionally, it is difficult to accept Roth's testimony that he was unaware of the newspaper publicity given on March 18 and 19 in the Denver Post and the Rocky Mountain News to the approaching union meeting in connection with the Union's citywide campaign to organize the Denver area dealership shops .2 I find, therefore, that in the course of the March 24 conversation Roth did in fact ask Woolverton if he was for the Union,3 asked whether he attended the Saturday union meeting, and threatened that he would not negotiate with the Union but would close down first .4 I find that the aforesaid interrogation and threats of 2 It is also noted that this testimony by Roth that he was unaware of this publicity appears to be inconsistent with the stipulation at the outset of the hearing that "On or about March 24, 1971, Respondent was aware that there was an organizational campaign going on in the Denver Area at the various auto dealers' shops."" 3 In making this finding, I have in mind the fact that Woolverton was wearing the union button at the time, and that Roth was aware of this fact. reprisal by Roth to Woolverton interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and constituted unfair labor practices within the meaning of Section 8(a)(1) of the Act. Although Roth's remarks were made only to one employee, I find nevertheless that a Board remedy, is warranted under the circumstances. Initially, it is noted that the conversation was carried on in a managerial locus by the highest executive of the Respondent and not by a minor supervisor. The conversation was carried on deliberately to persuade and coerce Woolverton to abandon his union adherence; and it is reasonable to presume that Roth could foresee that his remarks, especially his threats not to negotiate with the Union but instead to close down his business and put the employees out of work, would be relayed to other employees by Woolverton. The interroga- tion employed by Roth is a common device to explore the scope and depth of employee adherence to unionism and carries with it the promise of later retaliation against those who continue their union adherence, I will therefore recommend remedial action by the Board. See Auto Workers (Omni Spectra, Inc.) v. N.L R-B., 427 F.2d 1330, and cases cited therein. International Woodworkers of America v. N.LR.B., 380 F.2d 628 (C.A.D.C.); N.L.RB. v. Marsh Supermarkets, Inc., (C.A. 7), 327 F.2d 109; Harold Brown Co., 145 NLRB 1756; L & H Trucking, Inc., 155 NLRB 104. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed 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 shall recommend that Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating an employee concerning his adher- But it is reasonable to conclude that an employer in the course of an argument against unionism would stress his antagonism by such an inquiry. 4 On cross-examination, Woolverton testified that when Roth said he wouldn't negotiate with the Union, he was "very angry-very sincere-he was red in the face." Woolverton testified on cross that Roth said, "I will not negotiate. I will close the doors first. There won't be any work for anybody." JERRY ROTH CHEVROLET, INC. 355 ence to the Union and whether he attended a union meeting, and by threatening to refuse to negotiate with the Union and instead to close down and put the employees out of work, the Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5 ORDER Respondent, Jerry Roth Chevrolet, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union adherence and union activity. (b) Threatening to refuse to negotiate with a union and instead to close down and cease operations. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its place of business in Denver, Colorado, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 27, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.? 5 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 6 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 Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 7 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to refuse to negotiate with International Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, if selected by the employees. WE WILL NOT threaten to close our business and put our employees out of work rather than negotiate with the aforesaid Union. WE WILL NOT interrogate our employees with respect to their union membership, activity, or adherence. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, including the Union herein, to bargain collective- ly through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities. JERRY ROTH CHEVROLET, 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, 260 New Custom House, 721-19th Street, Denver, Colorado 80202, Telephone 303-297-3551.