McPeak Motor Co.

MCPEAK MOTOR COMPANY McPeak Motor Company and Automobile Salesmen's Union Local 1095, Retail Clerks International Association, AFL-CIO. Case 20-CA--6869 July 13, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 2, 1972, Trial Examiner David E. Davis issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a brief in support thereof and the General Counsel filed an answering brief in support of the Decision and limited exceptions. Pursuant to the provision 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 briefs and has decided to affirm the Trial Examiner's rulings,' findings,2 and conclusions and to adopt his recommended Order,3 as modified herein. We agree with the Trial Examiner that Respondent violated Section 8(a)(5) and (1) of the Act and his conclusion that a bargaining order in this case is necessary to effectuate the purposes and the policies of the Act. The Supreme Court in N. L. R. B. v. Gissel Packing Co.,4 so far as is relevant here, agreed that the Board has authority to issue a bargaining order to redress unfair labor practices "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order [is] necessary to repair the unlawful effect of those' 15 unfair labor practices. The Court also approved the Board's authority to issue bargaining orders in less extraordinary cases, involving less pervasive practices, when the Board decides that "even though traditional remedies might be able to ensure a fair election, there [is] insufficient indication that an election (or a rerun . . . ) would definitely be 1 Respondent, an automobile dealer, excepts to the Tnal Examinees refusal to reopen the record and admit into evidence a "directive" from its distributor that it employ additional salesmen As the letter is not alleged to be newly discovered or unavailable at the time of the hearing, we find no merit in Respondent's exceptions and affirm the Trial Examiner's ruling thereon Wisconsin Rubber Products Co, Inc, 160 NLRB 166, 167 Moreover, we note the letter merely suggests possible future needs of the dealer and is far from mandatory. 2 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 the relevant evidence convinces us that the resolutions are 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 179 a more reliable test of the employees' desires than the card count before the unfair labor practices oc- curred." 6 We find that a bargaining order is warranted under either of the above standards by the facts of this case. Thus, immediately upon receipt of the Union's demands for recognition and bargaining, which was based on the fact that it had authorization cards from six out of the seven employees in the unit, Respondent through its high level management, its owner McPeak, and its manager, Guernsey, coercive- ly interrogated its employees concerning their union sympathies and desires, threatened its employees with economic reprisals or discharge because of their activity on behalf of the Union; bargained directly with its employees individually and as a group to frustrate the employees' right to self-organization; 7 threatened to blacklist the employees in the industry; threatened to "get" employees; promised them benefits to dissuade them from continuing to adhere to or maintain membership in the Union; and hired additional salesmen in order to reduce its employees' earnings. Respondent further, in violation of Section 8(a)(3) and (1), constructively discharged Bruce Holbrook, its top new-car salesman. The foregoing unlawful conduct not only preclud- ed the holding of a fair election in the representation proceeding the Union had instituted, but, in our judgment, was of a sufficiently pervasive and extensive character, considering the small size of the unit, to have likely served Respondent's intended purpose of undermining the Union's preexisting majority. In these circumstances, we believe that the restoration of the status quo ante is required in order to vindicate employee rights and prevent the Respon- dent from profiting from its own unfair labor practices. We are further of the opinion that the lingering effects of the Respondent's past coercive conduct renders uncertain the possibility that tradi- tional remedies can ensure a fair election. We therefore conclude, on balance, that the Union's majority card designations, obtained before the unfair labor practices occurred, provide a more reliable test of employee representation desires and 3 The General Counsel excepts to the Trial Examiner's Decision in that (I) although he found Respondent committed certain specific 8(a)(1) violations which he set forth in the "Notice to Employees," he inadvertently failed to include them in the Order, and (2) the appropriate unit as set forth in the "Notice to Employees" contains obvious typographical errors We will amend the Order accordingly 4 395 U.S. 575. 5 Ibid at 615 6 Ibid at 616 r The Trial Examiner also found that by bargaining directly with its employees individually and as a group when it knew that the Union represented a majority of its employees Respondent violated Sec 8(a)(5) and (1) of the Act Since we are issuing a bargaining order under Gissel, we find it unnecessary to consider and pass upon this aspect of the case. 198 NLRB No. 32 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better protect employee rights than would a rerun election. Accordingly, we find that by refusing to recognize and bargain with the Union and by engaging in the aforesaid unfair labor practices, the Respondent violated Section 8(a)(5) and (1) of the Act and that the policies of the Act will best be effectuated by imposition of a bargaining order to remedy such violations.8 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, as modified herein, and hereby 'orders that McPeak Motor Company, Walnut Creek, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as so modi- fied: 1. Renumber paragraphs 1(b) and 1(c) as 1(g) and 1(h), respectively, and insert the following para- graphs to be numbered 1(b) through 1(f), inclusive: "(b) Coercively interrogating its employees con- cerning their union activity, sympathies, and desires. "(c) Threatening its employees with economic reprisals or discharge because of their activity in behalf of the above-named Union or any other labor organization. "(d) Bargaining directly with its employees individ- ually or as a group to frustrate the employees' right to self-organization. "(e) Promising benefits to its employees in order to dissuade them from continued union adherence or membership. "(f) Hiring additional salesmen in order to reduce its employees' earnings because they engaged in union activity." 2. Substitute the attached notice for the Trial Examiner's notice. 8 Solvay Baking Company, 180 NLRB 418 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activity on behalf of Automobile Salesmen's Union Local 1095, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discharging any of our employ- ees or by discriminating against any of our employees in any like manner in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT coercively interrogate our em- ployees concerning their union activities, sympa- thies, and desires. WE WILL NOT threaten our employees with economic reprisals or discharge because of their activity in behalf of the above-named Union or any other labor organization. WE WILL NOT bargain directly with our employ- ees individually or as a group to frustrate their right to self-organization. WE WILL NOT promise benefits to employees in order to dissuade them from continued union adherence or membership. WE WILL NOT hire additional salesmen in order to reduce our employees' earnings because they engaged in union activity. WE WILL offer Bruce Holbrook immediate and full reinstatement to his former position, without prejudice to his seniority and other rights and privileges, or, if that job no longer exists, to a substantially equivalent position, and we will make him whole for any loss of pay he may have suffered as a result of the discrimination against him. WE WILL, upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of our em- ployees in the unit found appropriate by the National Labor Relations Board for the purposes of collective bargaining with respect to pay, wages, hours of employment, and other condi- tions of employment and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All new- and used-car salesmen employed by McPeak Motor Company at its facilities located in Walnut Creek, California, exclud- ing all other employees, guards, and supervi- sors as defined in the Act. MCPEAK MOTOR COMPANY (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. MCPEAK MOTOR COMPANY 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 compli- ance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: This case was heard on November 30 and December 1, 1971,1 at San Francisco, California, pursuant to a charge filed2 on July 123 amended on August 264 and a complaint issued on September 10 by the Regional Director for Region 20 of the National Labor Relations Board, herein called the Board. The complaint alleged that McPeak Motor Compa- ny, herein called Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, herein called the Act. Upon the entire records and in consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS The complaint alleged and the answer admitted that Respondent is a California corporation engaged in retail sales and services of new and used automobiles; that during the past year it has purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California and that during this period its gross revenue from sales and services exceeded $500,000. Accordingly, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer admitted, and I find that the Union, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. i Hereafter all dates will refer to the year 1971 unless otherwise specified 2 The charge was filed by Automobile Salesmen's Union, Local 1095, Retail Clerks International Association, AFL-CIO, herein referred to as the Union or Charging Party 3 Served on Respondent on July 13 4 Served on Respondent on August 27 5 The record is corrected at p. 81, 17, by changing May 8 to May 18 6 G.C Exh 2 T G C Exh. 3 8 G.C. Exh 4 III. THE UNFAIR LABOR PRACTICES A. The Issues 181 The unfair labor practices alleged in the complaint and litigated at the hearing may be summarized as follows: 1. Did Respondent by its agents, officers, or represent- atives engage in certain conduct which interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act? 2. Did Respondent constructively discharge Bruce Holbrook because of his protected or union activities? 3. Did Respondent unlawfully refuse to recognize and bargain with the Union on and after May 18, 1971? 4. Does Respondent's conduct warrant the issuance of a bargaining order? B. Preliminary Findings General Counsel's Exhibits 2 through 5 were admitted in evidence by stipulation. They showed and I find: (1) The Union filed a representation petition on May 186 for a unit consisting of "new and used car salesmen excluding all other employees, guards and supervisors as defined in the Act." (2) An election was conducted on July 67 which resulted in three votes against the Union, one challenged ballot, and none for the Union. (3) Objections to conduct of elections were filed by the Union on July 12 alleging that the employer on or about June 4 bargained with the employees in an attempt to exclude the Union and induced the employees to draw up a list of demands and by these acts dissipated the union majority and interfered with the employees' free choice. (4) On September 8, the Regional Director issued a Report on Oblections9 in which he ordered the election conducted on July 6 to be set aside on the ground that his investigation showed that the Employer had interfered with the employees' free choice by engaging in interroga- tion and making promises of benefits.io General Counsel introduced into evidence six authoriza- tion cards dated May 8 signed by Respondent' s sales employees which were received with the stipulation by Respondent that they were authentic.ii C. Holbrook's Testimonial Account Holbrook testified that he was first employed by Respondent in August 1967 as a new-car salesman and continued his employment until July 3; he had a break in service from January 1969 to April 1969; he was trans- 9 G.C Exh 5 iU Respondent did not appeal this order and finding of the Regional Director i i The GC G.C. G.C GC GC G C. cards so received were marked as follows Exh 6, Bruce Holbrook Exh. 7, William Henderson Exh 8, Kenneth Hart Exh 9, George Sullivan Exh. 10, Alfred E Graffius Exh 11, Robert A Cullen 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferred to the sale of used cars about June 15; he and another salesman, Ken Hart,12 contacted Vincent Fulco, executive secretary of the Union at Fulco's Oakland office; Fulco informed them as to the procedure necessary to have the Union represent the salesmen and gave them a number of authorization cards for distribution to Respondent's salesmen; Hart, George Sullivan, and himself passed the cards out; six of the seven salesmen employed, by Respondent met with Fulco at a bowling alley about May 15; Fulco told them that McPeak was out of town but would be back on May 18 and he would contact him at that time; on May 18 after Fulco left Respondent's premises, Luzern F. Guernsey, Respondent's sales manag- er,13 approached Holbrook and asked him to go into his office; Guernsey called him an obscene name saying "You're the instigator of the Umon movement. I'm going to get you and all of you"; Guernsey asked who had signed cards and Holbrook informed him that all the salesmen except Bob Nelson had signed; "he [Guernsey] was just ranting and raving and kept trying to say that I caused it"; Holbrook replied that there was no instigator that all signed cards; later that day Guernsey said that Bill Henderson had come to work for Respondent Just to establish the Union; Guernsey again said that he was going to get Holbrook and the rest of the salesmen; on May 20 Bob Cullen and himself were called into Guernsey's office; Guernsey said that by forming their own union and getting an outside attorney they might have won as McPeak would then be in serious trouble; Guernsey went on to say that the Union wouldn't be of any benefit to them; Fulco was worthless, that he would fight this to the end; McPeak was prepared to fight a lot longer than the men could hold out and that he would make sure none of them would be there much longer; Guernsey continued by discussing commis- sion earnings in a union establishment, making compari- sons, and saying they were not so out of line; and Guernsey promised if they would drop the Union, he would guarantee them a commission structure equivalent to union shops. Holbrook further testified that on May 29 McPeak presided over a meeting of all the sales employees for the first time since Holbrook's employment in 1967; during the meeting salesmen complained that all incoming calls about new cars were being channeled to Nelson thus hurting the sales possibilities of other salesmen; McPeak asked for a list of recommendations advising the men to keep it as simple as possible; he would weigh them thoroughly and see what he could come up with; and McPeak said he couldn't promise due to the forthcoming election but said, "You know, I'm a man of my word, and if you people do not go Union, these things will be taken care of." Holbrook then identified General Counsel's Exhibit 12 as a list of recommendations which Cullen and Sullivan commenced to type but, as Sullivan's typewriter was not in working order, Holbrook had his wife complete the typing and_ it was presented to McPeak the following week about June 4. He further testified that the salesmen met with Fulco again on June 7 or 8 and after some discussion took a vote to go Union; the next day Guernsey called the salesmen to his office; 14 Guernsey said that he had talked with McPeak and that Guernsey had been given full authority to fight the Umon; the salesmen could not talk to McPeak and that he, Guernsey, was going to handle it his way; all "matters" would have to be verified and signed by him; and he was going to load the showroom with salesmen and make it as rough as possible. Later that day Holbrook tried to talk to McPeak as McPeak was getting into his car to leave . McPeak replied, "I don't want to talk to you, I've had it with you. I've talked to ..Reynold C. Johnson 15 and told him that you were the creator of this movement and he said that Johnson had cut Holbrook off `the list.' " Holbrook further testified that on June 5 the draw checks 16 were distributed and Hart did not receive one. As a result Hart resigned. According to Holbrook, Guernsey came out of his office "boiling" and accused Holbrook of causing Hart to quit. The next day, Holbrook was transferred to the used-car department and Guernsey told Holbrook to get his stuff out of the office. Holbrook testified he received no prior notice or warning of his transfer and continued to work in the used -car department until he resigned on July 3. Holbrook related that he had not been assigned to used-car sales during his entire employment with Respondent; from January 1968 to June 1971 he was the top new-car salesman in Respondent's employ; daily sales were posted on the bulletin board and summarized at the end of the month and this showed that he was the top salesman; during the 3-1/2 year period he was the leader each month except for 3 or 4 months; he was the only salesman then employed by Respondent who was a member of the Volkswagen Guild; membership in the Guild is awarded for superior sales performance and includes only about 10 percent of Volkswagen salesmen; and sometime in June Respondent employed two addition- al new-car salesmen. Before concluding his direct examina- tion, Holbrook testified as follows: When you resigned, Mr. Holbrook, did you give your resignation-the reason for your resignation to Mr. Guernsey or Mr. McPeak? A. Mr. McPeak. Q. What did you tell him? A. Well, I stated in the resignation, due to personal friendship, that I thought it was best for him and myself to give my resignation, and that we knew the Union election would not be voted in our favor, and that Ken Hart was gone, and Bill Henderson was gone. On cross-examination, Holbrook admitted that he had a break in service with Respondent for about 3 months because he was discharged as a result of a drinking problem; he worked as a used-car salesman for about 4 weeks when he was first hired ; he was transferred to used- car sales in June because Guernsey was trying to force him out of the "dealership"; Bob Fusch, the used-car manager, told him that ; as a used-car salesman he did not have as much opportunity to meet customers who walked into the new-car showroom as the used-car department is at the 12 Kenneth Hart, the transcript erroneously refers to him as Ed Hart 15 Volkswagen Distributor for Northern California and Nevada 13 An admitted supervisor within the meaning of the Act 14 Holbrook thought Nelson was out sick that day. 16 An advance against earnings. MCPEAK MOTOR COMPANY 183 other end of the showroom , about 120 feet away; that Holbrook himself had little interest in selling used cars and did not like it; he felt the dealership (Respondent) was not going union and that he was going to be fired anyway; McPeak told him regardless of the outcome of the union matter, his employment would not be affected ; he believed he couldn't produce as a used-car salesman but did not speak to Guernsey or McPeak about it ; he told Fusch about a week after his transfer that he was not going to stay in the used-car operation ; he was going to leave; McPeak said that he couldn't do anything about condi- tions till after the election ; and his resignation dated July 1 introduced in evidence as Respondent's Exhibit 1 reads as follows: I hereby tender my resignation from McPeak Motor Company as a salesman, effective July 3, 1971. This resignation is submitted solely as a courtesy in recognition of my respect for you. I trust that our business and personal friendship will continue as it has in the past. D. General Counsel's Additional Evidence Vincent J. Fulco, executive secretary of the Union, testified that on May 18 he went into Respondent's establishment, asked Guernsey where he could find McPeak, and was directed to McPeak's office ; that he introduced himself to McPeak , told him that he represent- ed his men, and had a letter of demand; and that he handed McPeak the letter,17 McPeak read the letter, and said, "Okay, thank you, I'll contact you." William Henderson testified that he is currently em- ployed by a Volkswagen dealer in Oakland, California; he worked for Respondent from November 1970 to June 1971 as a new-car salesman ; he left Respondent's employ because he could no longer make a living ; and this resulted from the pressure arising from the union activity and the fact that two new-car salesmen were hired. Henderson's further testimony corroborated Holbrook's testimonial account with regard to the steps taken to organize Respondent's salesmen and the meeting with Fulco. Henderson then testified that on the morning of May 18 he was called into Guernsey's office where Guernsey asked him if he was aware of this "thing with the Union." After Henderson replied in the affirmative , Guernsey asked Henderson if he knew "that he would not be working there much longer"; that McPeak, about 1 or 2 weeks later, called him into his office and asked him why "we wanted the Union to represent us . . . or why we didn 't come to him with our requests .:. prior to going to the Union." Henderson replied that the men had considered that but had decided they would all be discharged if they did not have the backing of the Union. Henderson's testimony concerning the meeting of salesmen with McPeak on May 29 differed from Holbrook 's account in that Henderson recalled that toward the end of the meeting McPeak asked if he was correct in assuming that if there was a vote the result would be a nonunion store and a couple of salesmen replied "Yes." Kennth J. Hart testified that at the present time he was employed as a Ford car salesman in Martinez, California; he was employed by Respondent from October 1967 until June 1971 ; he started his employment with Respondent as a used-car salesman but became a new-car salesman about 1 year later; about March he was asked to return to selling used cars by Guernsey and Fusch because of the reemployment of Robert Cullen ; he, as a new-car sales- man, earned $300 per month more than as a used-car salesman ; and several weeks before leaving Respondent's employment he had an urgent need for about $300 and asked Guernsey for an advance of that sum. When Guernsey said he would get him the money, Hart said that he did not want to be obligated to Guernsey by promising to go one way or the other on the union problem; Guernsey replied that naturally he would like him to go his way but he didn't have to; Guernsey then brought him a check and said, "Ken, I realize when you went up there, you went up there because I asked you to go up there. And you're not going to be obligated to pay this back , I'll have Mrs. Stone write if off the used -car department"; thereaft- er on June 15 when the regular draw checks were being passed out, Hart did not receive one ; he then went to Guernsey and accused Guernsey of lying to him about the $300 advance; and Guernsey said that McPeak had decided that the $300 was a draw and that Hart was obligated to pay it back. Thereupon Hart told Guernsey that he was quitting his job and left the premises. Hart thereafter testified to his union activity and affirmed Holbrook's account of the organizational meetings of the employees. Hart further testified that on May 18 he was in Guernsey's office and Guernsey and himself had the following conversation: What's this I understand you want to go union? I said, "That's right, Joe, I want union representa- tion." And then, he proceeded to say, "You realize, you no longer have a job with McPeak Volkswagen , or as far as that's concerned, you'll never be able to get a job at another Volkswagen dealer, not as long as I'm in the chair or the position to do anything about it." So I told him, "Well, Joe, this is something that I want." Then, he proceeded to ask me, "Who is the instigator of this whole thing?" Hart told Guernsey there was no instigator ; that about a week later McPeak asked him to come to his office and said to him, "I understand you want to go union." Hart replied in the affirmative saying that he thought he would make more money with union representation ; that McPeak then said he did not want a union, didn't need it, and that if he wanted to he could sell the business the next day as he didn't need it. With respect to the meeting of the salesmen with McPeak on May 29, Hart testified that McPeak said that he can't commit himself but if they could get together and bring in a list of things, such as to match union scale, that they could more or less have his word that they would get exactly that ; McPeak said he could not commit himself right then; after May 18 Guernsey stopped him several times and mentioned that he heard Holbrook was the instigator ; two additional salesmen were hired after 17 G C Exh 14 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guernsey said at a salesmen's meeting that he would flood the floor; and this had no effect upon him because he was then in the used-car department. On cross-examination Hart was repeatedly asked wheth- er McPeak had made any promises to the men. Hart replied, "Yes, as far as I'm concerned, he did." He then explained that he got that understanding from McPeak's repeated statement that his word was good. Asked whether at the same time McPeak said he could not promise anything, Hart replied: At the very beginning of the meeting, he did mention this. He says, you know, just like you can't, you're not supposed to come right out and say, you've got it, it's yours. But in so many words, he left me, as an individual, definitely with the impression that whatever we wanted, he would match the Union and perhaps, even better. This is my version of it. That was the whole idea of the meeting. E. Respondent's Evidence Alfred E. Graffius testified that he was a new-car salesman in Respondent's employ since 1962; he signed a union authorization card in May after being approached by Holbrook and Hart; thereafter Guernsey called him into his office and asked him why he signed a card; and he replied the others had signed so he might as well. Graffius further testified that Guernsey never told him nor did he ever feel that his job was in jeopardy because of his signing the card; McPeak also asked him whether he signed a card and why he signed it; he told McPeak he signed because the others did; and McPeak mentioned nothing about his employee status because of the signing. With regard to the employees' meeting with McPeak on May 29, Graffius testified that the salesmen had gotten together and put a few things down that they would like to have done, whether or not they joined the Union, and presented them to McPeak; and that McPeak said that he couldn't and wouldn't promise them anything as the law wouldn't allow it. On cross-examination Graffius insisted that McPeak at no time told the employees that he would satisfy their demands or words to that effect. Luzern F. Guernsey, called by Respondent, testified that he was Respondent's sales manager for the past 8 years; in May he was told by Vincent J. Fulco, executive secretary of the Union, that his organization represented a majority of Respondent's salesmen; on the same day, after Fulco left, Guernsey talked with all of the salesmen ; he was angry because he felt that they had destroyed their faith in him and that when he talked with Bruce Holbrook he was very discourteous and told Holbrook that, regardless of "how this came out, he would never work with me again"; Holbrook concluded the conversation with a statement that he was going to get Guernsey; he again talked to all the salesmen "a couple of days" later and told them that he could not or would not fire them regardless of the result of the union problem; he did not want to discharge any of his salesmen as he had a good crew; and he never liked the Union and "hated it with a passion." On cross-examination, Guernsey admitted that he had stated to a Board agent the following: That day, I talked to all or some of the salesmen over the course of the day. I may have called them into my office or otherwise, spoke to them individually, and asked them why they joined the Union. I didn't ask them if theyjoined the Union. Richard J. McPeak, Respondent's owner, testified that on May 18, Fulco came into Respondent's place of business and handed him a letter; he read the letter and "got the message"; he then walked outside and showed the letter to Guernsey; he was angry at the time and consulted with his attorneys the next day; he transmitted the information he received from his attorneys as to what he could and could not do to Guernsey in order that Guernsey could straighten out with the salesmen anything the might have previously said; and after May 18 there was ,a complete change of attitude of "everybody toward everybody." The salesmen, in my opinion, were not concentrating on sales to the best of their previous ability. !There seemed to be a great deal of bickering going on, and production had gone down. On cross-examination, McPeak admitted that within a !week or 10 days after May 18 he spoke with each of the salesmen and asked them why they joined the Union. !McPeak further stated that he avoided speaking to ,Holbrook as he felt Holbrook instigated the movement. F. Analysis and Conclusions The crucial events related by the General Counsel's !witnesses are essentially admitted. Indeed, counsel for Respondent in its brief admits that both Guernsey and McPeak interrogated Holbrook, Henderson, and Hart concerning their reasons favoring union representation. Graffius, a salesman called by Respondent, likewise testified that he was interrogated by Guernsey and McPeak. In addition, Guernsey and McPeak admitted that they !interrogated all the salesmen. It is academic that questions addressed to employees during an organizational drive which seek to uncover their union sympathies, member- ship, and reasons for their union sympathies or member- ship are coercive and violative of the Act. Accordingly, I find that each incident of interrogation by Guernsey of employees on May 18 and by McPeak about I week later ;constituted coercive interrogation and violated Section '8(a)(1) of the Act. I further find that Guernsey informed Holbrook, Henderson, and Hart during their interrogation that they would be discharged and that he would attempt to blacklist them from employment as salesmen in other Volkswagon establishments. I fmd that this threat of reprisal was made because of their union adherence and sympathies. I therefore find that each of these incidents was violative of Section 8(a)(1) of the Act. Respondent, in its brief, argues that as Guernsey !subsequent to May 18 assured employees that their job was not in jeopardy because of their union activity and that McPeak, the owner of the business, also gave this assurance to employees; therefore, the argument is made, Guernsey's threats of reprisal were nullified and no violation of the Act should be found. I disagree. Respon- dent's continued attempts to interfere and frustrate its employees' rights to organize, as found below, demonstrate MCPEAK MOTOR COMPANY 185 that Guernsey's and McPeak's assurances were merely window dressing and meaningless. The true intent of the discharge threats and reprisals is amply demonstrated by the employment of two additional new-car salesmen as foretold by Guernsey when he said he would "flood the floor," by the June assignment of Holbrook to used-car sales and by the demand that Hart repay his $300 advance.18 The evidence shows that Guernsey suggested to Hol- lbrook and Cullen that an internal organization would be 'acceptable to Respondent. The meeting of the salesmen with McPeak on May 29 was designed to further this end. While it is true that McPeak at the May 29 meeting did estate that he could not commit or promise anything, nevertheless he made it clear to the salesmen that if they repudiated the Union, he would make conditions and commissions at least equal to those of the Umon. I credit the testimony of Holbrook, Hart, and Henderson on this aspect and therefore find that Respondent attempted to (bargain with its employees at a time when it knew that a majority had authorized the Union to act as their collective-bargaining representative. As this attempt at bargaining was engaged in without the knowledge and ,assent of the Union and was designed to frustrate the ,employees,, right to self-organization, I find thereby that Respondent violated Section 8(a)(1) of the Act. As Respondent knew that the Union represented a majority of its salesmen in an appropriate unit when it engaged in the foregoing conduct, I find that Respondent likewise violated (Section 8(a)(5) of the Act.19 Respondent's antipathy toward the Union, abundantly illustrated by the course of conduct summarized above, includes coercive interrogation upon the advent of the Union, threats of reprisals and reprisals against employee adherents of the Union, promises of benefits to employees to dissuade them from continued union support, and other conduct constituting gross interference with the employees' Inght to form, join, or support a labor organization of their choice, and to engage in mutual aid and protection. In this atmosphere, I have no difficulty in concluding that Respondent constructively discharged Holbrook by creating a situation so unbearable to Holbrook that he quit ,rather than continue in the employ of Respondent. That Holbrook tendered his written resignation without mention of the reasons is understandable on several grounds, including the fear of being blacklisted in the industry as threatened by Guernsey. Having been the top salesman of new cars over a period of several years and now relegated to the sale of used cars, competing with two additional new-car salesmen, deprived of his usual access of custom- ers entering the new-car showroom, and disliking sales of used cars, it is self-evident that Holbrook was faced with a situation that would reduce his income to a marked degree. It is likewise self-evident that all of the foregoing conditions, except Holbrook's dislike of used-car sales, ,were created by Respondent to further its purpose of frustrating its employees' right to be represented by the Union. It is unquestionable that Holbrook was Respon- dent's chief target as Guernsey from the outset had labeled him as the instigator. I find that Holbrook's constructive discharge because of his protected activity constituted a violation of Section 8(a)(1) and (3) of the Act. As the election of July 6 has been set aside by the Regional Director, it does not constitute a bar to a bargaining order. As I have found above that since May 18 Respondent has engaged in a course of conduct violative of Section 8(a)(5), it is appropriate, under all the circum- stances, to apply the rationale of Gissel.20 Clearly a new election would not be free from duress or enable the employees to express a free choice. The bitter resentment displayed by Guernsey and McPeak at the very idea that their salesmen would seek to be represented by a labor organization, their unlawful campaign which resulted in the negative vote against the Union, and my appraisal of their attitude when they testified convinces me that they continue to harbor union animus which would destroy reasonable prospects that a fair and truly representative election could be held. In addition the departure of at least half of the original employees who advocated union organization because of Respondent's pressures amply establish this premise.21 Accordingly, I shall, as part of the remedy, order that Respondent recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of a unit comprising Respondent's salesmen. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By coercively interrogating employees concerning their union activities, sympathies, and desires, by threaten- ing employees with economic reprisals, by attempting to bargain directly with employees at a time when it knew they were represented by a labor organization, by promising employees benefits to dissuade them from continued union adherence, by adding two new salesmen to its new-car sales force, and by threatening employees with discharge Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 2. By creating conditions which caused Bruce Hol- brook to resign his position, Respondent violated Section 8(a)(3) and (1) of the Act. 3. At all times material herein the Union has been and now is the exclusive representative of the employees in the appropriate unit found below: All new and used car salesmen employed by McPeak Motor Company in Walnut Creek, California, exclud- ing all other employees, guards and supervisors as defined in the Act. 4. By refusing to bargain with the Umon on May 18 and by engaging in a course of conduct thereafter in an iS 1 credit Hart in his recital of this incident. Guernsey in his testimony failed to allude to this incident 19 Arthur F Derse, Sr, President, and Wilder Mfg. Co., Inc, 185 NLRB ,No 76 20 N L R B v. Gissel Packing Company, 395 U.S. 575 2i Henderson gave as one of his reasons for quitting the fact that he could no longer make a living after the hiring of two additional new-car salesmen. Hart left because Respondent reneged on his gift of $300 Holbrook, as found above, was constructively discharged 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempt to undermine the Union's majority status, Respona dent violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within thel meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged to certain unfair labor practices, it shall be recommended that, it cease and desist therefrom and that it be required to take certain affirmative action designed to effectuate the; 'policies of the Act. As Respondent unlawfully discriminated against Bruce' 'Holbrook on June 5, 1971, by transferring him to used-car sales, thereby causing Holbrook to quit his employment on July 3, it will be recommended that Respondent offer Holbrook immediate and full reinstatement to his former or substantially equivalent position, without prejudice to, his seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for him. It will also be recommended that Respondent make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him, by paying to him a sum of money equal to that he normally' would have earned as wages from June 15, 1971, to thell date of Respondent's offer of reinstatement , less his net earnings during said period. The amount of backpay due shall be computed according to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest one backpay computed in the manner set forth in Isis Plumbing, & Heating Co., 138 NLRB 716. Payroll and other records in possession of Respondent are to be made available to the Board or its agent to assist in such computation. It will also be recommended that Respondent bargain collectively with the Union and, in view of the nature of the unfair labor practices which I have found to have been, committed, I shall further recommend that Respondent' cease and desist from in any manner interfering with its employees' rights guaranteed under Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby. recommend that there be issued the following: 22 ORDER Respondent, McPeak Motor Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Automobile Salesmen's Union Local 1095, Retail Clerks International Association, AFL-CIO, or any other organization of its employees, by discharging any of its employees because of their member- 22 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 23 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 ship in, sympathy for, or activity in behalf of the above named Union or any other labor organization, or by discriminating against its employees in any like or related manner in regard to hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain with the above-named Union as the exclusive representative of its employees in the unit found above to be appropriate for the purposes of collective bargaining. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Bruce Holbrook immediate and full reinstatement to his former or substantially equivalent ,position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth ,in the section of this Decision entitled "The Remedy." (b) Notify the said employee, Bruce Holbrook, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the 'Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request, bargain collectively in good faith with the above-named Union as the exclusive representative of the employees in the unit heretofore found appropriate, concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due and to analyze reinstatement rights under the terms of this recommended Order. (e) Post at its place of business in Walnut Creek, California, copies of the attached notice marked "Appen- dix."23 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.24 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 " 24 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 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply (herewith.