Mid Missouri Motors

MID MISSOURI MOTORS Mid Missouri Motors and District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 17-CA-4565 December 13, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 4, 1971, Trial Examiner Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting 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 and brief 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 ameilded, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Mid Missouri Motors, Waynesville, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Members Fanning and Jenkins agree with the Trial Examiner that Respondent violated Section 8(a)(5) of the Act and that, in view of the Respondent's additional violations of Section 8(a)(1), a bargaining order is warranted. They therefore find it unnecessary to adopt or pass upon his discussion of Wilder Mfg. Co, 185 NLRB No 76; Snow & Sons, 134 NLRB 709, and Linden Lumber, Div., Summer & Co., 190 NLRB No 116 These cases involved situations where no independent violations of Section 8(a)(1) occurred. The legal questions with respect to such cases need not now be considered where, as here and in United Packing Company, 187 NLRB No. 132, the applicable principle derives from the Supreme Court's decision in Gissel Packing Company, 395 U.S. 595, in which the Court clearly held that a violation of Section 8(a)(5) accompanied by serious 8(a)(1) conduct warrants a bargaining order. Chairman Miller concurs in the bargaining order remedy here for the same reason as that sel forth in his concurring opinion in United Packing In his view, the confusion, which could have been readily avoided by adopting the rationale set forth in that opinion, takes on new dimensions when Gissel is viewed as simply holding that "a violation of Section 8(a)(5) accompanied by serious 8(a)(1) conduct warrants a bargaining order " It is, and always has been, axiomatic that conduct in violation of Section 8(a)(5), without more, warrants a bargaining order to restore the status quo ante. The Chairman doubts that his colleagues intend by their interpretation of Gissel to limit the Board's remedial powers in such a. case only to those situations involving serious 8(a)(1) conduct. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 505 HENRY L. JALETTE, Trial Examiner: This proceeding was initiated by a charge filed by the above-captioned Union on January 27, 1971,' against the above-captioned Employer, pursuant to which complaint issued on March 11, alleging that Respondent had engaged in independent 8(a)(1) conduct and had refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. On April 21 and 22, a hearing was held at Waynesville, Missouri. Upon the entire record,2 including my observation of the witnesses, and after consideration of the briefs filed by General Counsel and Respondent, I make the following findings of fact, conclusions of law and recommendations: FINDINGS OF FACT I. JURISDICTION Respondent, an automobile dealer engaged in the retail sale and service of automobiles in Waynesville, Missouri, annually derives gross revenues in excess of $500,000 from such sales and services and annually purchases products valued in excess of $50,000 directly from sources outside the State of Missouri. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The events in this case may be capsulized very quickly. About the first of the year, Respondent's service depart- ment employees became interested in union representation and signed cards received from the Union expressing their interest in representation. These cards, whose legend was not disclosed, were mailed to the Union a day or two before January 14. On January 14, Respondent held a meeting of the service department employees to discuss the circulation of the cards. On January 20, a majority of the service department employees signed cards applying for membership in the Union, and on January 21, the Union demanded recogni- tion. An answer was deferred to January 22 at which time Respondent refused to grant recognition. Thereupon, a majority of the service department employees went on what is alleged to be an unfair labor practice strike and began picketing. The strike was still in progress at the time of the hearing, but four of the strikers had returned to work. The foregoing represents the principal and undisputed events in this case. Certain minor matters described hereinafter are also undisputed, but in the main what i Unless otherwise noted, all dates are in 1971. 2 Respondent's unopposed Motion to Amend the Record is hereby granted, and the motion is hereby received into evidence as Resp. Exh. 15. 194 NLRB No. 79 506 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD follows is sharply controverted, beginning with the first meeting between Respondent and its employees on January 14. The conflict in testimony is such that the only explanation for it is that witnesses testified falsely. Although I cannot state with certitude who the false witnesses were, I can articulate my reasons for the conclusion I have reached. Apart from salesmen Jewel Parker, Wayne Sloan, and Gerald Roam, and secretary Sharon Myers, all the witnesses had an interest in the case. Even these four witnesses were not totally disinterested because they are employees of Respondent, yet had they testified about the crucial matters I might have been aided in deciding credibility. As matters stand, Parker, Sloane, and Roam testified on a minor issue, and secretary Myers clearly had no independent recollection of the January 14 meeting, the only event with which she was connected.3 Supervisor Sarnes might also be said to have been disinterested, at least, less interested than the main witnesses, but he was not a very convincing witness, and for some unexplained reason, he was not examined about the January 14 meeting which forms such a major part of this case. These witnesses aside, I have been given a choice on the one hand of Union Representative Bert Townsend and strikers Don Anderson, 'James Homer, Clint Helton, Ronald and Curtis Sasseen, and on the other hand Respondent's president, Julian Harrison, and his brother, Vice President Lloyd Harrison, and Thomas Roberts, Alan Sarnes, Robert Major, and Marion Hunter, employees who abandoned the strike and withdrew from the Union. These last four mentioned witnesses testified only to one main portion of the disputed facts and on this limited point all were less than candid. Why neither party examined them about the January 14 meeting is not explained, but in any event, they were of no help in trying to resolve credibility. In the final analysis, the case reduced itself to the credibility of Julian and Lloyd Harrison (for brevity's sake hereinafter referred to simply as Julian and Lloyd). If they were to be credited, the major portions of this case could readily be disposed of. I have concluded that their testimony was not deserving of credence. The decision to discredit the Hamsons was not an easy one, because they appeared no less candid and honest than General Counsel's witnesses, and they were more articulate than General Counsel's witnesses. Moreover, the extrava- gant nature of the accusations against them (e.g., that Lloyd said for $50 and a picture, he would get them rubbed out) caused me to doubt the credibility of General Counsel's witnesses. The balance was struck, however, when I reviewed the testimony of the Harrisons respecting the alleged refusal to bargain. As noted above, on January 21, the Union demanded recognition. At the time Union Representative Townsend 3 Myers attended the January 14 meeting to take notes In making my credibility resolutions, I have considered her notes which do not contain any of the 8(a)(1) statements attributed to the Harrisons by General Counsel's witnesses. I have concluded that the notes are entitled to little made the demand he presented a recognition agreement to the Harrison providing for recognition in a unit of employees of Respondent's service department. Although the agreement consisted of only one sentence and Julian read enough of it to object to it as a "blank ticket," he nevertheless claimed that he did not read the agreement, at least not "in its entirety," and because the agreement inadvertently referred to "service departments" instead of service department, Julian attempted to have me believe that he did not know which group of employees the Union claimed to represent. When confronted with the fact that when the meeting ended he gave the Union representatives a tour of the service department, Julian lamely explained his action as a courtesy available to anyone who asked. In my judgment, Julian's testimony about the meeting with Townsend on January 21 was clearly designed to deceive. In addition, in order to support Respondent's contention that the appropriate bargaining unit herein is a unit of all employees, including salesmen and mechanics, Julian gave testimony respecting the similarities between the work performed by salesmen and mechanics which was in my judgment a conscious distortion of facts. For the foregoing reasons, which are applicable generally to Lloyd also, I have concluded that the Harrisons were not credible witnesses. The result is that General Counsel's witnesses are credited. Their testimony is not without some difficulties. For instance, there are discrepancies in the versions they gave of the January 14 meeting and Ronald Sasseen, for one, was completely mistaken about the time of the meeting, However, one learns from experience that where there are several witnesses to the same event it is seldom that they all give the same description of the event. All things considered, General Counsel's witnesses are more deserving of credit than the Harrisons. B. The Alleged Independent 8(a)(1) Conduct 1. The meeting of January 14 This meeting was called because the Harrisons had heard of the circulation of union cards and that employees were being told the Harrisons approved of their signing the cards. At the outset of the meeting, Julian advised the employees that any rumors that he approved of the distribution of cards were false, and he initiated a discussion of the pros and cons of a union shop. According to General Counsel's witnesses,4 in the discussion that followed the following statements were made: Lloyd: the Union was nothing but a bunch of gangsters and for $50 and a picture, they could get anybody who wanted a union rubbed out; Julian: those who wanted a union could pick up their paychecks after the meeting; weight. Admittedly, they were taken in longhand, and they are not quite three pages long although the meeting lasted by all accounts at least 45 minutes. It is obvious much was omitted from the notes. 4 Don Anderson, James Homer, Ronald Sasseen, and Clint Helton MID MISSOURI MOTORS 507 Julian and Lloyd: before Respondent went union, they would close the shop and farm out the work.5 In addition, during the meeting Julian asked who had been passing out the cards. I do not credit the denials of the Harrison that they made such statements and I find such statements, including the inquiry about who,had been passing out cards, coercive and violative of Section 8(a)(1) of the Act. . One statement attributed to Julian was that from that day on those who wanted a union would not receive holiday pay. I do not find that Julian made such a statement in haec verba. The record indicates that before the start of any union activity Respondent's salesmen had complained about the fact that they were not receiving holiday pay as everyone else was, including line mechanics who, like the salesmen, worked on straight commission. The Harrisons checked into the matter, concluded they could not afford to pay holiday pay to both the salesmen and mechanics, and the salesmen were advised that holiday pay would be discontinued for line mechanics after January 1. The mechanics were not told of the decision, but when Ronald Sasseen brought up the subject of holiday pay at the meeting, Julian told the employees of the decision and that it affected only the line mechanics. Under the circum- stances, I conclude that the statement to the employees did not violate Section 8(a)(1) of the Act. 2. The events following commencement of the strike a. The solicitation of strikers The complaint alleges that on January 27, at an employee's home, Julian solicited striking employees to withdraw their union authorizations and to abandon the strike, and that Lloyd did the same thing on the same day in the shop. It is undisputed that on January 23, the Harrisons solicited the strikers on the picket line to abandon the strike. They testified they made no threats or promises, and, except for Clint Helton, none of the strikers attributed any threats to either Julian or Lloyd. According to Helton, however, Julian told him and Bob Major that "if we didn't come in he was going to have to lease the shop out " I credit this testimony.6 I am persuaded that Helton would not have acted in the fashion described in the footnote below had his testimony been a fabrication. Bob Major denied that Julian made any threat such as Helton described, but Major didn't impress me as a credible witness. - Later that same morning, strikers Alan Sarnes and Tom s Paragraph 10(e) of the complaint alleges that Julian threatened employees with layoffs if the service department went Union. I find no support for such an allegation, and General Counsel may have intended it merely as a variant of the threat to lock the doors and subcontract the work. I shall recommend dismissal of paragraph 10(e) 6 Respondent made a motion to strike this testimony on the ground that the complaint did not allege that Respondent violated Section 8(a)(1) on January 23 I denied the motion because in my judgment Helton's testimony could not be divorced from consideration of the complaint allegations that Respondent had unlawfully solicited strikers to abandon the strike and to withdraw from the Union. Respondent was given the opportunity to contradict Helton and availed itself of the opportunity by calling Bob Major. The Harrisons had already testified and were not recalled, but their testimony prior to this was sufficiently broad to include Roberts, who had been picketing and had been among those solicited by the Harrison to return to work, decided to abandon the strike. They told strikers Ronald and Curtis Sasseen of their decision. According to Roberts, Ronald Sasseen said it would be bad for his health if he crossed his own picket line and he would be fined $500 by the Union. Sasseen did not deny making this statement. Nevertheless, both Roberts and Sarnes went into the shop and told the Harrisons of their decision and what Ronald Sasseen had told them. Both signed statements prepared by the Harrisons to the effect that they had not been promised raises or additional benefits, nor had they been threatened, in connection with their abandonment of the strike and return to work. Later that same day striker Marvin Hunter decided to abandon the strike, and on Monday, Bob Major returned to work. They also signed a prepared statement identical to that signed by Roberts and Sarnes. On January 27, at work, Roberts, Sarnes, Hunter, and Major, were all approached by either Lloyd or Julian and were handed a typewritten letter addressed to the Union which they were requested to sign. The letter was a withdrawal of authorization to represent the employee for purposes of collective bargaining and a resignation from the Union. All four signed the letter. On the evening of January 27, Julian went to the home of striker Curtis Sasseen and spoke to him and his son Ronald. A conversation ensued as a result of which both Sasseens signed a letter and a statement identical to those described above. Respondent contends that the foregoing conduct was not unlawful, because it was in response to the requests of its striking employees for aid to get out of the Union to avoid union fines for crossing the picket line. I find no merit to this defense. First, I do not credit Julian's testimony that his visit to the Sasseen home was prompted by a call from Ronald Sasseen. Instead, I credit the testimony of Ronald and Curtis Sasseen that Julian was the one to telephone the Sasseen home, that he arranged for the meeting, and that he was the one to suggest that they abandon the strike and withdraw from the Union, and who told them exactly what to write. Second, in the case of the solicitation of Roberts, Sarnes, Hunter, and Major, at work on the morning of the 27th, the record does not support Respondent's assertion that they sought its assistance. Roberts, who had been threatened by Sasseen and had told the Harrison of the threat, did not testify that he asked for assistance. Major and Hunter did a denial of Helton's accusation. They were therefore not prejudiced by my permitting Helton's testimony to stand. Respondent also moved to strike Helton's testimony on the ground it violated my ruling on sequestration of witnesses I also denied this motion The testimony was given by Helton when recalled by General Counsel as a rebuttal witness. In his earlier testimony Helton had testified on cross-examination that he had heard Julian make a statement on the picket line about locking the doors, but his testimony was somewhat uncertain. As a rebuttal witness, he testified that his memory had been refreshed by listening to the testimony of other witnesses and he had volunteered that fact to counsel for General Counsel who recalled him to testify. Counsel for Respondent knew that General Counsel's witnesses were staying in the hearing room after testifying, understood they might be recalled, and stated he had no objection to their staying 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not testify that they had expressed any fears of a union fine or any desire to withdraw from the Union. Nevertheless, these employees were solicited, to-withdraw from the Union. Moreover, the letter prepared by Respondent did not confine itself to a withdrawal from membership; the only thing required to protect the employees from fines; rather, it stated: "I no longer wish to be represented by Machinist District #9 for the purpose of collective bargaining. I hereby withdraw all authorization that I have given to that union to represent me and I hereby resign from the Union.,, On the facts found, it is clear that the idea and means of withdrawal of union authorization originated with Respon- dent and that such conduct had the deliberate purpose of dissipating the Union's strength and frustrating the employees' right of self organization. While there is no evidence that the employees were threatened in the process of soliciting their withdrawal, a finding of restraint and coercion does not depend on overt threats. The mere presentation of prepared letters of withdrawal to employees who have just returned from a strike clearly tends to restrain and coerce them. Few employees will have the fortitude to refuse to sign such letters. Apart from the foregoing, assuming, arguendo, that the employees had indicated their disaffection with the Union, and a desire to withdraw from it, the Board has clearly held that an employer may render no more than "ministerial aid." Southwestern of Dallas Optical Company and Tru- Optics, Inc., 153 NLRB 33; Movie Star, Inc., 145 NLRB 319, enfd. 361 F.2d 346 (C.A. 5); Winn-Dixie Stores, Inc., 128 NLRB 574. In the last cited case, it is noteworthy at page 580 that the Board did not adopt the Trial Examiner's holding at page 581 that an employer may render even a "minimum" of assistance to employees seeking assistance. In this case, it is undisputed that Respondent's assistance was more than a minimum ; as a matter of fact, it could have done no more. In short, I find that by soliciting the Sasseens to abandon the strike and withdraw their union authorizations and by soliciting the returned strikers to withdraw their union authorizations, Respondent violated Section 8(a)(1) of the Act. b. The threat to discharge strikers On January 29, Respondent sent the following letter to strikers Don Anderson, James Homer, and Clint Helton: Sir: On Friday, January 22, 1971, I Julian Harrison offered to continue your employment with Mid Missouri Motors, Inc. I made this offer in sincerity with no reservations or restrictions and no alternative motive in mind. I will continue to offer you employment until Tuesday February 2, 1971 at 8:15 AM. If in the event you do not report for work as set out above I will assume that you are no longer interested nor desirous of continuing your 7 In my opinion, Respondent's letter is clearly distinguishable from the letter in B,-Rite Foods, Inc., 147 NLRB 59. While Respondent's letter of April 17 clarified that the strikers had not in fact been discharged, it was employment with Mid Missouri Motors, Inc. and that you have voluntarily severed your employment. If in- the, event you do not return to work Tuesday morning February 2,1971 at 8:15 AM you will leave me no-other alternative but, to, secure other personnel; in order to continue the free flow of business. Sincerely yours, Julian Harrison Although the Sasseens had signed a statement requesting reinstatement on January 27 and had withdrawn their authorization from the Union, they did not abandon the strike. On February 1, Ronald Sasseen resumed picketing and that same day he and his father received a telegram identical to the letter set forth above except that their jobs were to remain open until February 5. General Counsel contends ' that the letters and telegrams threatened the strikers with discharge and they were therefore violative of Section 8(a)(1) of the Act. Respon- dent contends that the letters were no more than a reiteration of statements at the picket line to strikers that their jobs were still available with the additional statement that "in order to continue the free flow of business" they would be replaced if they did not return by a specified date. Pursuing this argument with case citations , Respondent asserts that it is the substance of what it has done which must be considered over the words it has used. I would agree with Respondent were the issue here , as in its cited cases, whether or not it had in fact discharged the strikers. The complaint does not allege that the strikers were discharged (the record clearly indicates they were not) but merely that they were threatened with discharge. In Kerrigan Iron Works, 108 NLRB 933, strikers were sent a letter similar to the letters in this case. The Board rejected the contention that the strikers had been discharged, but a majority of the Board stated that they "do not condone the use of such a letter, as they regard it as an unlawful strike- breaking technique violative of Section 8(a)(1) of the Act. They construe the letter as a threat of discharge, designed to coerce the strikers to abandon the strike." (Emphasis supplied.) It does not appear that the Board has ever overruled Kerrigan and I deem it applicable to Respon- dent's communications here. While Respondent did not state that it would terminate the strikers who did not return by the deadline set, its statement that it would assume the strikers were no longer desirous of employment and that they had voluntarily severed their employment imparted to the strikers the identical message. Any striker receiving such a letter could not help but conclude that unless he abandoned the strike he was no longer an employee of Respondent. Accordingly, I find that Respondent's letters and telegrams to the strikers were coercive and violative of Section 8(a)(1) of the Act .7 c. Picket line threats The complaint alleges that on January 28, Lloyd insufficient to erase the effects of the threat of discharge in the earlier letter and a cease-and-desist order and notice are deemed necessary to effectuate the policies of the Act. MID MISSOURI MOTORS 509 threatened that local businessmen would shoot the pickets down if they continued picketing, and that on February 1, Julian told pickets they had better "stand tall" because the town's merchants were going to get rid of them. The January 28 allegation is based on the testimony of striker Don Anderson, which I credit, that on that date he was approached on the picket line by the Harrisons and that Lloyd told him the businessmen at the chamber of commerce were going to shoot him if he didn't take the picket line down. Julian added that the town was not ready for a union and the people would not go for it and if his Irish father-in-law were there he would shoot Anderson. Striker Ronald Sasseen testified that on or about February 4 at the picket line, Julian made the remark that "we had better stand tall while we were out there because the merchants were out to get us, they were going to get rid of us." I credit Sasseen. According to Sasseen, his father and James Homer and Clint Helton were present when this remark was made, yet none of them testified to having heard the remark. This does not mean that Julian did not make the remark. They were not specifically asked about such a remark, and, though present when it was made, may not have overheard it. The statements described are clearly coercive and violative of Section 8(a)(1) of the Act, as alleged. C. The Alleged Refusal To Bargain 1. The appropriate unit The complaint alleges, and the General Counsel con- tends, that an appropriate unit consists of Respondent's service department employees, excluding all other employ- ees. Such a unit, which General Counsel concedes includes the parts department employees and a janitor, numbers 12 employees. Respondent contends that the appropriate unit is one consisting of all its employees, including office clerical employees and automobile salesmen, excluding supervisors only. Such a unit numbers 23 employees. In order to establish the existence of a community of interest between the salesmen and mechanics, Julian testified that salesmen do minor repair work, road test customer's cars, and diagnose mechanical problems, and that salesmen have even performed major repair work. Julian also tried to establish that mechanics sell cars. As I 8 The record does not support General Counsel's assertion that Fulmer is a supervisor within the meaning of the Act. Although I have serious reservations about Jack Sarnes' testimony relative to his status as a supervisor, I am constrained to find that he is a supervisor within the meaning of the Act. 9 I do not include in this list Howard Callahan, Kenneth Harrison, LeRoy Fulmer, Jr., Peggy Ann Anderson, and Karen Harrison. According to Resp. Exh 7, Callahan and Kenneth Harrison are part-time parts department employees, LeRoy Fulmer, Jr is a part-time clean up employee, and Peggy Anderson and Karen Harrison are shop clerical employees. However, Respondent offered no evidence that any of these male employees were in fact regular part-time employees or that the female employees were shop clericals. Res. Exh. 7 was merely identified by secretary Sharon Myers as a list of employees of Respondent as of January 21, 1971, taken from company personnel records. While I deemed her identification of the list sufficient to warrant its being received into evidence, I do not deem the mere inclusion of an individual's name on the list proof that such individual was in fact an employee within the unit found herein appropriate as of January 21, 1971 According to General have already indicated his testimony in this connection reflected adversely on his credibility. It is clear from the record that whatever repair work salesmen may do is purely incidental' to their essential function as salesmen, and it is noteworthy that any repair work which required use of the service department facilities was performed after regular hours when service department employees were not working. A unit of service department employees has long been held to be appropriate in automobile sales and service establishments and Julian's testimony was insufficient to warrant the inclusion of salesmen in the service department unit contrary to Board policy. Austin Fora Inc., 136 NLRB 1398; Hanna Motor Company, 94 NLRB 105. Respondent's arguments for inclusion of the office clerical employee are clearly without merit. 2. The union's majority status The unit found appropriate consists of 12 employees: Bill Bowling, LeRoy Fulmer,s Robert Major, Thomas Roberts, James McKinnon, Marvin Hunter, Alan Sarnes, Ronald Sasseen, Curtis Sasseen, Don Anderson, Clint Helton, and James Homer .9 Of these 12, all but James McKinnon, LeRoy Fulmer, and Bill Bowling, signed cards on January 20, 1971, applying for membership in the Union and authorizing the Union to act as their bargaining representa- tive. Accordingly, I find that on January 21 and 22, 1971, when the Union demanded recognition it represented a majority of Respondent's employees in the unit found appropriate herein.10 3. The demand for recognition Bert Townsend, business representative of the Union, accompanied by organizer Lonnie Kenoyer, went to Respondent's place of business on the morning following the execution of the membership application cards and met with Julian and Lloyd. Townsend testified he first identified himself and then told the Harrisons that he represented a majority of their service department employ- ees, that he was prepared to prove this, that in fact 10 of their service department employees were members of the Union, and that they had requested him to demand recognition and he was doing so. Townsend showed the Harrisons a form document which stated: "This is to certify that , recognizes District No. 9, International Counsel's witnesses, the only employees in the service department were the 12 listed above. Respondent did not challenge this testimony, and I accept it and find the unit consisted of the 12 employees listed above. An additional reason for excluding Kenneth Harrison and Karen Harrison is that they are the children of the two principal stockholders and are, in effect, individuals employed by their parents. Foam Rubber City #2 of Florida, Inc., 167 NLRB 623. 10 Respondent contends that the membership application cards should all be declared to be invalid because they were signed at a meeting of employees which was attended by Supervisor Jack Sarnes who "vigorously espoused" the Union's cause. I do not agree. The record clearly indicates that the meeting at which the cards were signed was arranged by the employees themselves, a majority of whom had antecedently signed cards at the behest of employee solicitors indicating they were interested in union representation. Under the circumstances , including the fact that there was some doubt of Sarnes' supervisory status, I do not consider Sarnes' remarks favorable to the Union sufficient basis for invalidating the cards. Compare WKRG-TV, The, 190 NLRB No. 34. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association of Machinists and Aerospace Workers, as Bargaining Agent for the employees in their Service Departments [sic] in regard to wages, hours and working conditions." Below this statement was a place for signature by Respondent and the Union. Julian Harrison replied that Respondent was a corpora- tion and they couldn't make a decision such as Townsend's demand required without consulting the rest of the corporation. Townsend agreed to give Respondent 24 hours. The following morning, Townsend, accompanied again by Kenoyer, met with the Harrison in Julian's office. According to Townsend, the Harrisons said they wanted all the service department employees to be present and Townsend said he had no objection. Accordingly, the service department employees also entered the office. Townsend repeated his request that Respondent sign the letter of recognition and Julian replied by stating that he did not believe the employees had been given all the facts. Townsend interrupted and said he was not there to discuss such a matter, that he was there to ask Harrison to sign the letter of recognition. Julian refused, so Townsend told the employees "Let's go." Eight or nine employees followed Townsend and a picket line was set up. On the basis of the foregoing, a finding is warranted that the Union made a proper request for recognition in a unit of service department employees and that Respondent refused to grant recognition. Respondent admits that it refused Townsend's request for recognition, but it contends that Townsend never specified the unit for which he was seeking recognition and that absent an unambiguous request a refusal to bargain may not be found. Respon- dent's position is predicated on the testimony of the Hamsons and salesman Gerald Roam that Townsend said he represented "their employees" without ever specifying that he meant service department employees. I attach no weight to Roam's testimony, because he was not present during the 'meeting and heard only the introductory remarks, and I have already indicated in my introductory remarks that the entire circumstances surrounding the demand for recognition compel a finding that the Harrisons knew that the unit for which recognition was being sought was a unit of service department employees and that the effort of the Harrison to persuade me otherwise militated against their credibility. I credit Townsend and find that on January 21, the Union made a demand for recognition as the representative of employees of Respondent in a service department unit. 4. The obligation of Respondent to bargain with the Union General Counsel contends that in view of Respondent's independent 8(a)(1) conduct as set forth herein a bargain- ing order is warranted in keeping with the principles established by the Supreme Court in N.L.R.B. v. Gissel Packing Company." At the outset, I reject any contention that Respondent's unfair labor practices are so flagrant or "so coercive that, even in the absence of a Section 8(a)(5) 11 395 U s.575 12 Id at 615 violation, a bargaining order would have been necessary to repair the unlawful effects of those [unfair labor practices]." 12 In my judgment, the issue for decision is whether Respondent's unfair labor practices belong to that class of cases wherein the possibility of erasing the effects of past practices and insuring a fair election by the use of traditional remedies, though present, is slight and employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, or whether they belong to that category of minor or less extensive unfair labor practices which will not sustain a bargaining order. Both parties cite cases for their respective viewpoints and these have been carefully considered. None of them, or for that matter none of the cases studied by me in considera- tion of this issue, answers the question for this case., In the final analysis, cases of this type must be decided on their own particular facts. In my judgment, the possibility of erasing the effects of Respondent's unfair labor practices by the use of traditional remedies is slight and the desire for union representation exhibited by a majority of the employees in an appropriate unit on January 22 can only be protected by a bargaining order. Respondent's opposition to the Union in this case was so intense that immediately upon learning of the distribution of cards it called a meeting of all employees in the unit and indicated to them that rather than operate a shop with a union it would close the shop and farm out the work. It invited all those who desired union representation to draw their paychecks and uttered threats of bodily harm. Despite these threats on January 14, a majority of the employees designated the Union to represent them on January 20. It may be argued that this is evidence that the threats had no coercive effects and they should not therefore form the basis for a bargaining order. A similar issue was considered in Merritt Motor Company, 181 NLRB No. 172, and the Board there stated: i3 Is there any reason to regard unfair labor practices of the same nature as likely to have less serious or less lasting effects because they took place just as organiza- tional efforts were getting underway? I am satisfied that the designation of a bargaining agent following such unfair labor practices does no more than render the true effect of the unfair labor practice a matter of speculation. The central fact remains, and it appears equally viable whether the unlawful conduct occurs before.or after the designation, that the employer by his own act has created a situation in which it is still uncertain whether the employees can freely choose a representative by use of the election route. In the instant case Respondent's opposition to union organization had been expressed, its threats had been made, its benefits had been conferred. At the moment of signing the authorization cards, the employees may have regarded this as of insufficient consequence to withhold the designation, but this scarcely insures that as long as the unfair labor practices remained unremedied, the employer's preference and threats may not once again have reasserted themselves, and that at the ballot box discretion may not have become the better part of valor 13 TXD. MID MISSOURI MOTORS 511 and have affected the choice. The Board has never sought to evaluate the subjective impact of an employer's nusconduct. The Board has always relied upon the nature of the employer 's conduct and the effect that it is reasonably calculated to have on employees. Whether an employer's conduct has been aimed at preventing a majority from coming into being, or has been directed at dissipating one which presuma- bly exists seems irrelevant. Affirmative support for a union as expressed in employee designations following the unfair labor practices is nothing more than a subjective expression of the possible ineffectiveness of the employer's unlawful conduct. The vice of the employer's conduct, however, has not been erased. Having launched an offensive calculated to interfere with free choice by the election process, the employer has tainted that usually more reliable method, and thereby rendered the designation 'cards the more reliable gauge of employee choice. In the instant case, Respondent's unfair labor practices were not confined to that single meeting of January 14. To the contrary, on January 22, the same employees witnessed their employer reject their demand that he recognize the Union as their bargaining representative under circum- stances which must have persuaded them that he knew that a majority wanted union representation . Thereafter, Respondent did not file a petition to resolve the question concerning representation through the Board 's election processes, a process it now urges be used, but rather it tried to break the strike by threatening the strikers with discharge and by picket line threats. At the same time, Respondent undermined the Union's support by successfully soliciting employees to withdraw their authorizations and to withdraw from the Union. In my judgment, given all these circumstances, there is really no possibility that an election held hereafter will reflect the free choice of the employees. For the foregoing reasons, I conclude that by its refusal to recognize and bargain with the Union Respondent violated Section 8(a)(5) and (1) of the Act and a bargaining order should issue. 14 General Counsel has asserted that Respondent's refusal to recognize and' bargain with the Union was violative of Section 8(a)(5) and (1) of the Act even if it were found either that Respondent committed no other unfair labor practices, or its other unfair labor practices did not warrant issuance of a bargaining order. General Counsel contends, in effect, that Respondent knew that the Union represented a majority of its employees and that in such a circumstance it could not lawfully refuse to recognize the Union. General Counsel relies on Arthur F. Derse, Sr., President, and 'Wilder Mfg. Co., Inc., 185 NLRB No. 76, and Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709, enfd. 308 F. 2d 687 (C.A. 9). Since the hearing in this case, and since General Counsel filed his brief, the Board has issued a decision in Linden Lumber Division, Summer & Co., 190 NLRB No. 116, which, in effect, in my opinion, overrules Wilder. As I construe Linden, the Board will not 14 Since Respondent's refusal to recognize the Union was violative of Section 8(a)(5) and (1) of the Act, and the strike was caused by such refusal, it follows, as alleged in the complaint, that the strike was an unfair labor practice strike. This is further' reason for holding that Respondent's issue a bargaining order in any case based on a card majority (except another Snow & Sons case) where an employer commits no unfair labor practices. Accordingly, I reject General Counsel's alternative contention in support of a bargaining order. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, 'intimate and substantial relationship 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. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Mid Missouri Motors is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 9, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All service department employees of Respondent, at its Waynesville, Missouri, facility, including parts men and the janitor, but excluding office clerical employees, salesmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. District No. 9, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is the exclusive representative of the employees of Respondent in the above-described unit within the meaning of Section 9(a) of the Act. 5. By threatening employees with physical injuries because of their union activities, by threatening to close the shop and to subcontract the work if they selected a union -to represent them, by telling employees who desired union representation that they could pick up their paychecks, by threatening strikers with discharge if they do not abandon their strike, by soliciting employees to abandon the strike and withdraw from the Union, and by interrogating employees about the identity of those who passed out union cards, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 6. By refusing to recognize and bargain with the Union, Respondent has engaged in and is engaging in unfair labor letters and telegrams to the strikers described above, were unlawful, because Respondent could not threaten to replace unfair labor practice strikers. 512 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD practices within the meaning of Section 8(a)(5) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 15 ORDER Respondent, Mid Missouri Motors, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with physical injury because of their union activities. (b),Threatening to close the shop and to subcontract the work if employees select a union to represent them. (c) Threatening employees with discharge by telling those who desire union representation to pick up their paychecks. (d) Threatening strikers with discharge if they do not abandon the strike and soliciting employees to abandon the strike and to withdraw from the Union. (e) Interrogating employees about the identity of the employees passing out union cards. (f) Refusing to recognize and bargain with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining represent- ative of its employees, in the above-described unit. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above- named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Waynesville, Missouri, facility, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by it 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. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision as to what steps have been taken to comply herewith.17 IT IS FURTHER RECOMMENDED that the, allegation of paragraphs 10(e) and (f) of the complaint be dismissed. 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. 16 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 " 17 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 17, 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 After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. WE WILL NOT refuse to bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL bargain collectively, upon request , with this Union as the exclusive representative of all our employees in the bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed agreement. The bargaining unit is: All service department employees , including parts men and the janitor , but excluding office clerical employees, salesmen , guards, professional employees, and supervisors as defined in the Act. WE WILL NOT ask you who has been passing out union cards. WE WILL NOT threaten strikers with discharge if they do not abandon the strike. WE WILL NOT tell you to pick up your paychecks if you desire union representation. WE WILL NOT solicit strikers to abandon the strike and to withdraw from the Union. WE WILL NOT threaten to farm out the work if you select District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union, to represent you. You are free to become and remain members of District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. MID MISSOURI MOTORS (Employer) 15 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 Dated By findings, conclusions, and recommended Order herem shall, as provided by (Representative) (Title) MID MISSOURI MOTORS 513 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone its provisions, may be directed to the Board's office, 610 This notice must remain posted for 60 consecutive days Federal Building, 601 E. 12 St., Kansas City, Missouri from the date of posting and must not be altered, defaced, 64106, Telephone 816-374-5181. or covered by any other material.