Popular Volkswagen

POPULAR VOLKSWAGEN 441 Popular Volkswagen and District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 14-CA-7030 August 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 27, 1973, Administrative Law Judge Jennie M . Sarrica issued the attached Decision in this proceeding . Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Popular Volkswagen, Poplar Bluff, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. CHAIRMAN MILLER, dissenting: I would remand the case to the Administrative Law Judge for more definitive credibility resolutions. Her analysis begins with a statement that most of the testi- mony stands uncontradicted and that none of the witnesses "presented a demeanor which would reflect adversely on his sincere attempt to present the facts as he saw them." Yet the testimony of employee Adkins is to the effect that the employees, acting on their own, and with the help of their union steward, initiated a move toward a 4-day, 10-hour-per-day, workweek, and drafted and circulated a petition seeking such a change. According to Adkins, when the full-time union representatives "balked" at this, and refused to go along with the employees' desires, the employees engaged outside counsel and filed a decertification petition. That is a quite different version of the facts from the one presented by the findings of the Adminis- trative Law Judge. It is true that employee witness Mantis painted a picture much like the findings of the Administrative Law Judge. It is also true that Respondent did not call any management personnel to counter the clearly damaging testimony of Manns, and it is quite proper to draw inferences adverse to Respon- dent therefrom But with Adkins' story so different from Manns', I think it essential that a credibility resolution be made as between those two witnesses. I would remand for that limited purpose. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of 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 her findings 2 Contrary to our dissenting colleague, we see no credibility issues of any substance which need to be resolved It is not significant really whether it was the employees or management officials who initiated the move toward a 4-day workweek because the record as a whole, including the testimony of Adkins, the sole witness called by the Respondent, clearly establishes that the Respondent dealt directly with its employees concerning a term and condi- tion of employment It was this direct dealing with employees about the 4-day workweek by which the Respondent circumvented the employees' duly au- thorized bargaining representative. Accordingly, we would affirm the Ad- ministrative Law Judge's finding that this conduct was in derogation of Respondent's statutory obligation to deal only with the exclusive bargaining representative of its employees DECISION STATEMENT OF THE CASE JENNIE M. SARRICA , Administrative Law Judge: This pro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (29 U.S.C. 151, et seq.) hereinafter referred to as the "Act," was tried before me at Poplar Bluff, Missouri, on November 8, 1972, upon a charge filed August 29, 1972; a complaint issued October 12, 1972, presenting allegations that the Respondent , Popular Volkswagen,' committed unfair labor practices within the meaning of Section 8(a)(5) and ( 1) and Section 2(6) and (7) of the Act; and Respondent's answer denying those allegations . Repre- sentatives of all parties were present and participated in the heanng. Briefs were filed by the General Counsel and the Respondent . Based on the entire record,2 including my ob- Formerly Popular Motors, Inc , as stipulated by Respondent's represent- ative at the heanng 2 The General Counsel's motion to correct the record set forth in the Appendix B [omitted from publication], to which no opposition was filed, is hereby granted except as follows- The references to page 7 in the first two proposed corrections clearly apply to material on page 8 of the transcript of hearing and page 8 is corrected accordingly The requested insert of the word "one" after "gone" at page 69, line 16 of the transcript appears to be a typographical error which adds confusion rather than meaning to the sen- tence Instead the word "on" is substituted for the first "and" following the word "gone" at this point in the transcript of the hearing 205 NLRB No. 62 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD servation of witnesses and after due consideration of briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION Respondent, a Missouri corporation, at its place of busi- ness on Highway 67 in Poplar Bluff, Missouri, is engaged in the retail sales and service of new and used automobiles, automobile parts, and related products. During the 12 months ending September 30, 1972, a representative period, Respondent's sales from this business exceeded $500,000. During the same period Respondent purchased, and caused to be transported to its place of business directly from points located outside the State of Missouri, goods and materials valued in excess of $50,000. Respondent admits, and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION The Charging Party, District No. 9, International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principle issues to be resolved in this proceeding are whether Respondent, as the General Counsel contends, vio- lated the Section 7 rights of its employees and its statutory collective-bargaining obligation, inter aha, by dealing di- rectly and individually with employees rather than through their designated representative, by urging employees to abandon their representative and form their own union,3 and, thereafter, by negotiating with said representative with no intention of reaching agreement. In its answer Respondent advanced as affirmative defen- ses assertions that it complied with the terms of the contract until the expiration date thereof when employees sponsored a decertification petition; that the Union claimed coverage of and sought to represent an inappropriate unit by insisting upon inclusion of a supervisor or managerial employer (the parts department manager); and that the unit is inappropri- ate because Respondent does not employ many of the vari- ous classifications named in the contract and in the complaint. B. Background It is admitted that from January 7, 1972, Cliff Carver, general manager, and John Vincent, service manager, held 3 As the allegations in the complaint establish the issues in a Board pro- ceeding and the charge herein is sufficient to support this allegation, I find no ment in Respondent's challenge of this issue on the ground that it was not specifically set forth in the charge the positions in Respondent indicated and were supervisors within the meaning of Section 2(11) of the Act, the former individual until September 7, 1972, and the latter individual until July 20, 1972.1 Respondent and the Union are parties to a 3-year collec- tive-bargaining agreement effective from September 1, 1969, which, by its terms, covered a unit of Respondent's employees at the facility involved herein described as fol- lows: Journeymen automobile and truck mechanics, machin- ists, electrical machinists, welders, trimmers, met- almen, fender, body, painter, radiator repairmen, refrigeration, automotive air conditioning mechanics, garage men, service salesmen and towermen, appren- tices and working foremen. This unit, excluding salesmen, office clerical employees, professional employees, guards, and supervisors as defined in the Act, is alleged in the complaint to be the appropriate unit. I find that the unit set forth is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act.' As previously indicated Respondent asserts that the parts department manager is a supervisor within the meaning of the Act William 0 Manns, who has this title, testified that he is the only employee in the parts depart- ment, that he keeps the parts inventory, buys the parts needed, and issues parts to mechanics in the shop and to customers over the counter In his absence the office employee or service manager handle the parts department He has no authority over any employee and has never been asked for nor recommended any action affecting the employment condition of any other employee It appears that for a time some 4 years previously, while Manns was hospitalized and when he was present but busy, the owner's son helped out in the office and parts department During that time when Manns was present, if the son had a parts department question he would ask it of Manns, and had he put things in disarray-like turning the cards upside down- Manns stated he would have reprimanded him By contract the Parts De- partment Manager receives an hourly rate with a minimum guaranteed wage plus a percentage based on parts sales None of the other shop employees covered by the contract receive any type of percentage as part of their compensation The record indicates that the sales manager, a supervisor, also receives compensation based in part on a percentage of sales, whereas the service manager, an admitted supervisor, does not I find no supervisory indicia in the method of compensation On the basis of the foregoing I conclude that Manns has not been, at any time relevant herein, a supervisor within the meaning of Section 2(l 1) of the Act Nor does the fact that he annually attends distributorship's parts conferences, or the fact that he had not been given a specific dollar ceiling for parts purchases, establish that his interests are so aligned with management as to require his exclusion from the appropriate unit I find that parts department employee Manns has been, and is, appropriately a part of the unit involved 5 Respondent's challenge directed to the appropriateness of its own con- tract unit is based on the assertion that it does not employ many of the classifications named However, Respondent presented no evidence identify- ing the particular classifications it had not filled or does not use The record evidence shows that during the relevant period there were at least three automobile mechanics in the service shop with some degree of skill, one of whom may have been the apprentice referred to, and there was one parts department employee The record is silent as to which of the other classifica- tions are employed but indicates there were at least seven shop and parts department employees whom Respondent treated as covered by the collec- tive-bargaining agreement A service shop and parts department unit, exclud- ing sales department and office employees, is a traditional bargaining unit in automobile sales agencies, although various descriptions are utilized by the parties involved As the parties to this proceeding themselves adopted in their agreement the description set forth above, as the record fails to establish which of the various named classifications are not filled, and as the parties obviously were able to identify which employees their contract covered, I find no merit in Respondent's challenge to the appropriateness of the unit and no necessity to redefine the unit for purposes of this proceeding POPULAR VOLKSWAGEN 443 C. The Conduct Involved Generally speaking, by contract Respondent's shop em- ployees were on a workweek consisting of 5 consecutive 8-hour days, between the hours of 7 a.m. and 5:30 p.m., Monday through Saturday, with overtime applicable to hours in excess of 8 in 1 day and to days in excess of the established workweek. A workweek consisting of 4 10-hour days, known as the 4-day plan, apparently is a work pro- gram adopted by some Volkswagen dealers in various areas of the country designed to permit longer hours of operation on a 6- or 7-day basis in order to accommodate more cus- tomers as well as those who must travel considerable dis- tances for shopping and service. According to Respondent's witness, mechanic Eugene Adkins, this plan had been dis- cussed on television and among shop employees when he was first employed by Respondent 2 years before and more recently in a feature article in the Volkswagen publication. In early April 1972, a call went out by an unidentified person stating "they wanted everybody upstairs"-a room above the auto service shop. "Everybody" consisted of the shop and parts employees, and the meeting was conducted by John Vincent, service manager, who, according to em- ployee Manns, did all the talking. In substance, Vincent told employees that the business as a whole, and specifically the service shop, was not making money and that to make it possible for the shop to be open more hours so that it and the sales operation could increase business as well as to service out-of-town customers, the Respondent wanted to switch its working schedule to the 4-day plan. Adkins testi- fied that this meeting came about as a result of "open dis- cussions in the shop" regarding the desirability of the 4-day plan as the "route to go to help us out of our problem" which was "indication of slacking of business and unavaila- bility of service to customers that couldn't get there during our normal hours of operation." Soon after this meeting a document dated April 7, 1972, on the letterhead of Popular Volkswagen, was circulated for signature among unit employees. The document stated in substance that the signatories desired to amend their collec- tive-bargaining agreement, and supplied proposed contract language which would establish a regular workweek of 4 consecutive 10-hour days. According to Adkins, he and the shop steward, Kirkman, wrote out the document in long- hand and handed it to the office girl for typing after which they passed it around among employees for signatures and then to Mr. Carver who sent it to the Union at their request. Manns testified he did not know who prepared the docu- ment, but that it was handed to him through the parts win- dow by Mr. Carver with the instruction to read it and sign it. The document bears the signatures of seven unit employ- ees and General Manager Cliff Carver. A second meeting between management and employees was held in the same location around mid-April. According to Manus, Vincent spoke first at this meeting concerning the financial condition of the operation and mentioned the pos- sibility of having to close if the business losses continued. Carver addressed himself to the details of the 4-day plan. Adkins indicated that at this meeting employees worked with management on the details and had set a date to put the plan into effect. Adkins further testified that throughout this entire period there was: general discussion and get together once in a while .. . we were all quite anxious to get this going. The employ- ees and the company were working together as far as to get the plan initiated and actually the plan was well under way when we came across the first technicality. We thought we had better clear it with the Union. We had a date to start this on and we wanted to get the approval and get the Union's reaction to it prior to starting, and that time was running out . . . and we thought maybe we better get another message out. Adkins testified that he and Kirkman, therefore, "drew up the second one [document] to indicate [to the Union] the urgency, that we would like to get this under way." 6 Adkins further testified that this second document was prepared and circulated in the same manner as the first, then deliv- ered to Mr. Carver to send to the Union. Employee Manns testified that it was Mr. Carver who handed this document to him with verbal instructions to look it over, sign it if he wanted to, and pass it on to other employees. After receipt of the April 7 communication, Union Busi- ness Representative Kenoyer and shop steward Kirkman met with Carver at the shop office. During this meeting, Carver explained the business reasons for switching to the proposed 4-day plan and the Union advised that it would not agree to the contract change. Carver then stated that Respondent would live up to the current agreement until its termination date of September 1, 1972; after that date he did not know what course Respondent would take. As a result of receipt of the April 17 document which was signed only by employees, Kenoyer and another union busi- ness representative, Timmerberg, met with unit employees on May 2, and the following morning called on Carver at the shop. The latter meeting was also attended by Vincent and Kirkman. The 4-day plan was again discussed, Carver advancing the business reasons favoring the change and advising the Union the Agency was losing money. Carver displayed to the union representatives the last monthly sum- mary showing that the Company had experienced a better financial result for that month than it had for any month since it was established but that it was still losing money overall; the service department, however, had "paid its way" with "100 per cent shop absorption." Carver stated that in view of this financial record the Company might only be there another 9 months, and that he needed to make a good showing. The union representatives suggested ways Respondent could, under the present contract provisions, remain open on Saturdays, and advised Carver that employ- ees, individually, could volunteer to work beyond 8 hours each day. The Union also brought up the matter of in- creased health and welfare benefit premiums which had been imposed by the insurer and for which their contract 6 The document addressed to the Union, dated April 17, and bearing the signatures of the seven unit employees, sets forth the nature of the restrictions on "the owner of this agency" created by the contract workweek provision, and states "the owner of this agency cannot see operating in this manner any longer at a loss" , that the 4-day plan would entail the employment of three more mechanics whereas the "present restrictions will require the layoff of at least two of the present employees", and that "each union employee of this agency" is "in agreement with management" and "very much in favor of this plan " DECISIONS OF NATIONAL LABOR RELATIONS BOARD had failed to provide. Carver advised that the agreement was for a stated fee and the Company would not increase the payment. The Union advised it would not agree to a change in the contract workweek provisions. Carver charged the union representatives with failing to seek what the employees wanted and stated that the agreement was only in effect until September; "after that we might not be here." The meeting ended with Carver requesting the union representatives to leave his office, his following them through the shop and his ordering them to leave the proper- ty. Sometime after the April 17 document was dispatched, Respondent held one or more additional meetings with em- ployees in which the 4-day plan was discussed. Manns testi- fied that at one such meeting 7 Carver told employees the Union did not want to go along with the 4-day plan; that as far as he was concerned he could live with the Union or he could live without the Union; that employees did not have to have the Union for a 4-day workweek; that they could form a union of their own, have an attorney, and use the old contract as a guide, and that he would sign it. At one of these meetings, Manns recalled, Vincent told employees "it would be better ... if we had our own union to go on a 4-day week than run the risk of the place being closed on account of losing money." On June 28, 1972, the Union gave the required notice forestalling the automatic renewal of the collective-bargain- ing agreement and advised the Respondent that specific proposals for contract modification would follow. Such pro- posals dated July 25, 1972, were received by Respondent. Adkins testified that he first saw these proposals the day when Carver received them and brought them into the shop to show them to employees. At this time Carver stated he thought the proposals "were out of the ball park," and employees told Carver the demands were not what the em- ployees had initiated; and that employees were "all, more or less" agreeable to a continuation of the present contract until "the company could see its way clear." During the first few days of August, Carver spoke to employee Manns at a lodge meeting. Carver told Manns of the receipt of the Union's bargaining demands and stated that the amount proposed was ridiculous. Manns agreed that the amount mentioned by Carver was ridiculous. He told Carver he personally would be willing to continue at the present wage for a year and that he had told the Union this when employees met on contract proposals. Carver told Manns "I'm not even going to talk with them about it. I'm not even going to answer them. We have so many days .. . and the contract is up. They can hit the street." Adkins testified that as a result of the 4-day workweek "balk by the Union" he and two other employees discussed the matter among themselves and that sometime after the Respondent received the Union's contract demands, he went to Carver and told him of their interest in getting rid of the Union. In this conversation Adkins asked Carver if he would negotiate 7 Manns had some difficulty in fixing the time of these meetings in relation to when he was asked to sign the second document addressed to the Union on the subject of the 4-day week I do not view this vagueness as to the time factor as affecting the accuracy of his recollection of what the employees were told by management representatives in such meetings with the employees on a continuing contract basis. Carver said he would, and on the subject of procedure suggested that employees hire an attorney. The employees did see an attorney who, Adkins testified, prepared and filed a decerti- fication petition with the National Labor Relations Board. Early in August 1972, Kenoyer and Carver held a bar- gaining session in Carver's office where they discussed the Union's contract proposals. During this meeting Carver ac- cused the union representative of failing to seek what the employees wanted. This was denied by Kenoyer. They pro- ceeded to discuss the union proposals, as well as the 4-day workweek. Kenoyer told Carver that each of the Union's contract proposals was negotiable, but Carver stated "it did not matter"; he could not afford to grant anything; the Company was in bad financial trouble; and none of his mechanics were really journeymen anyway and did not need a wage increase. Carver said he might possibly sign the same agreement they had but he was not sure he would do this. Kenoyer testified that Carver repeatedly stated that "we were there until September 1, and after two hours of discussion, Carver said he had work to do, ending the meet- ing with the comment ". . . up until September 1, that is it." No agreement was reached on any proposal. In mid-August Kenoyer called Carver to arrange a sec- ond negotiating session and August 24, 1972, was set by mutual agreement. Kenoyer became ill and asked Timmer- berg to substitute for him. Thus, a day before the scheduled meeting date, Timmerberg called Carver to verify the ar- rangement for the 24th. Carver advised Timmerberg he had engaged an attorney and that the Union could contact the attorney for a meeting. Timmerberg did so and a meeting date was arranged for August 30, 1972. Although both had copies of the contract proposals with them at the appointed time, no negotiations took place. About 20 minutes was spent in introduction and greetings and in attempting to clarify the status of the negotiations as neither had partici- pated in the previous discussions. In the course of this at- tempted clarification, the union representative mentioned he had heard that the employees had obtained a local attor- ney. Respondent's attorney stated that he thought he had better speak with that attorney and would contact the Union. On this note the meeting ended. The following morning in a telephone call by the union representative Respondent's attorney advised that the employees indeed had engaged a local attorney and that "they were sitting on a petition to file when it became legal." No further meetings were suggested and there have been no further bargaining sessions. D. Analysis and Findings Neither of the management officials involved in the events herein appeared as witnesses and most of the testi- mony stands uncontradicted. Nor would I find from my observation that any one of the witnesses presented a de- meanor which would reflect adversely on his sincere at- tempt to present the facts as he saw them. There are some minor variants, notably Adkins' inclination to run all events together and to generalize-creating certain internal incon- sistencies, and in Manns' confusion in attempting to fix the time of the various meetings with management and assign POPULAR VOLKSWAGEN 445 the various statements by Vincent and Carver to a particu- lar meeting.8 1. Direct dealings In summary, I find that beginning in early April 1972, during the term of the collective-bargaining contract, Re- spondent dealt directly with some of its shop employees informally and with all unit employees in formal meetings to reach agreement on and institute a change in contract working conditions, and that adoption of the 4-day work- week plan was well under way including the fixing of the starting date "when the first technicality arose," in that it was decided they "had better clear it with the Union." Em- ployees and the Respondent then dispatched to the Union a document requesting amendment of the contract to ac- commodate their agreement, with specific amendment lan- guage.' Respondent continued to deal directly with employees on this plan without advising them of the disap- proval by their representative after the Union contacted Respondent upon receipt of this document and advised that the Union would not agree to the contract change. Only after the Union conducted a meeting with the employees and again met with Respondent with respect to the pro- posed change did Respondent advise employees that the plan would have to be dropped.10 The legal principles here applicable are well settled. "The National Labor Relations Act makes it the duty of the employer to bargain collectively with the chosen representa- tive of his employees. The obligation being exclusive . . . it exacts `the negative duty to treat with no other,' " and it is without significance who originated the idea for discussion or requested the meetings." The evidence establishes that 8 Resolution of such confusion and inconsistencies, however, to the extent that this is necessary to the determination herein, can be made on the basis of the probabilities when related to other events and the documentary evi- dence 9 It is immaterial who drafted this document, it was signed by both man- agement and the employees and was an attempt to gain the Union's acquies- cence in the results of their direct bargaining 10 Respondent defends its dealings with employees with respect to the 4-day plan on the ground that the idea was originated among employees who sought each meeting with management, and that it merely indicated its approval while advising employees that the Union's approval was required because of the existing labor agreement I need not decide whether such conduct would be violative of Section 8(a)(5), because the evidence does not support this statement of the facts Rather , it establishes, through the testimo- ny of Adkins, that the idea of adopting this well-known plan, which was utilized by a number of Volkswagen agencies, arose in open discussions in the shop, that employees and the company were working together to get the plan instituted , and that they had set the date for it to become effective before the matter of the Union's approval was mentioned There is no indica- tion that Vincent and Carver were not a part of the open discussions in the shop. Indeed Adkins' testimony that the purpose of considering the plan at all was as a possible solution to "our problem," which when specified turned out to be management problems of "slacking of business" and "unavailabili- ty of service" to certain customers-the very arguments in favor of the plan advanced by management in the meetings with employees and in the later conferences with the Union That management participated in the shop discussions is further indicated by the fact that the second document signed by employees and dispatched by management to the Union gave in specific numbers how company personnel would be affected both by approval and by disapproval of the plan Also, there is no evidence whatsoever that em- ployees requested any of these meetings, and Adkins testified that it was not in the first, but in the second formal meeting, that management first indicated union approval would be necessary 11 Medo Photo Supply Corp v N L R B, 321 U S 678, 683-684 (1944), and cases cited therein during April and at least through early May, 1972, Respon- dent dealt directly with employees with respect to the 4-day workweek plan, bypassing their contract representative. I find that this conduct was in derogation of Respondent's statutory obligation to deal only with the exclusive bargain- ing representative of its employees and that the Respondent thereby violated Section 8(a)(5) and (1) of the Act. After the May 2, 1972, conference with the Union, Re- spondent had one or more additional meetings with em- ployees in which it advised them the Union would not accept the proposal but that they did not need to have the Union as their representative in order to have a 4-day work- week; they could form a union of their own, have an attor- ney, and Respondent would sign a contract with them using the old contract as a guide. Not only is such conduct a blatent attempt to undermine the statutory representative in violation of Section 8(a)(5) and (1) of the Act, but here again, by offering a contract with specific terms, Respondent's conduct was in the nature of dealing directly with employees in derogation of its Section 8(d) obligations and in violation of Section 8(a)(5) and (1) of the Act. I also find that by relating or showing to individual and groups of employees the Union's written contract demands and by soliciting their reactions to the Union's bargaining proposals, Respondent engaged in acts designed to under- mine the Union's representative status and also continued to bypass the bargaining representative, each in derogation of its duty under Section 8(a)(5) and (1) of the Act. 2. Bad-faith bargaining As indicated by the foregoing findings, upon the Union's firm refusal on May 2 of the proposed contract changes, the Respondent made no effort to accommodate its expanded hours plan within the framework of the contract which had been suggested by the Union but, instead, led employees to believe that the abandonment of the entire plan, and any resultant adverse consequences, was caused by the Union. It is clear from the Respondent's conduct beginning around the first of April 1972, and continuing throughout the rele- vant period, that it undertook a course of action which would have the forseeable effect of undermining the repre- sentative status of the incumbent union. That this was a continuing approach is apparent in Respondent's actions after receipt of the Union's written contract demands on July 25, when Respondent sought employee expressions with respect to those proposals and told at least one employ- ee that Respondent was not going to talk to the Union about the proposals, and when, in response to Adkins' expression of the desire of three employees to get rid of the Union, Carver suggested that employees hire an attorney and promised that Respondent would negotiate with employees on a continuing contract basis." 12 Where the employer undertook a course of conduct violative of 8(a)(i) and assisted in the circulation of a decertification petition calculated to undermine the incumbent union and destroy its majority status, the Board has rejected the employer's asserted bona fide doubts concerning the union's continued representative status See, e g Baron Clay Products, 174 NLRB 895, I view Carver's suggestion to the assembled unit employees that they did not need the Union to have the 4-day workweek, they could form a union of their own, have an attorney and a contract, and his promise to Adkins that Continued 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's intention not to reach a new agreement with the Union and not to continue recognition beyond the term of the contract is also apparent in its bargaining ap- proach. Thus, during the only meeting at which any discus- sion of the specific contract proposals took place, Respondent's stance was one of intractability, failing to make any counterproposals and refusing to commit itself even to the expression of a willingness to renew the current contract or reach any agreement, asserting that it did not matter that each of the Union's proposals were viewed by the Union as negotiable, repeatedly stating that they were there only until September 1, the expiration date of the current agreement, a theme the Respondent had empha- sized at the May 2 discussion, and finally terminating the meeting after only 2 hours with the comment "up until September 1, that is it." Even in Respondent's dealings with the Union away from the bargaining table, Respondent demonstrated the absence of good faith, by its failure to advise the Union in advance of the August 24 bargaining date that further discussions were to be held with Respondent's attorney, thus causing a delay of any meeting until the last 2 days of the contract term, then avoiding discussions on the ground that the em- ployees had an attorney who was "sitting on a petition to file when it became legal." The totality of Respondent's approach to its collective- bargaining obligation, both in dealing with employees and in dealing with the Union at the bargaining table as well as away from it, demonstrates that Respondent intended not to reach agreement but to avoid any meaningful collective bargaining until it could lawfully question the Union's ma- jority status. Such an approach constitutes bad-faith bar- gaining. As pointed out in Medo Photo Supply, supra at 687, Respondent cannot [a]s justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestabl- ish the union as the bargaining representative of the employees, . . . [R]efusal to bargain under those cir- cumstances was but an aggravation of its unfair labor practice in destroying the majority's support of the union, and was a violation of 8(1) and (5) of the Act. Here, when Respondent ceased even giving the appearance of bargaining, the purported decertification petition had not yet been filed; the attorney was reportedly "sitting on it" until it could become timely, which under existing Board precedent would not be until the contract with the incum- bent Union expired without the parties reaching agreement at midnight, August 31, 1972.13 On the basis of the fore- he would negotiate with employees and as a matter of procedure they should hire an attorney, all part of a subtile direction that they depose the Union, indicia of Respondent's bad faith 13 Contrary to Respondent's contention advanced in its brief, I find that it did not comply with its bargaining obligation until the independent filing of the decertification petition Whether the mere filing of such a petition imposes a legal requirement that an employer not bargain further with an incumbent contracting union, as contended by Respondent, need not be going, I find merit in the allegation of the complaint herein that Respondent negotiated with the Union in bad faith and with no intention of entering into any final or binding col- lective-bargaining agreement, in violation of Section 8(a)(5) and (1) of the Act.14 3. Additional 8(a)(1) violations In addition to the foregoing conduct which is violative of both Section 8(a)(5) and (1) of the Act, I find, on the basis of the undenied testimony of Manns that Respondent also engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act by the following conduct: (a) Carver's handing to Manns for signature each of the two documents related to the 4-day workweek, and his di- rection to Manns on the second occasion that he pass the document to other employees. 15 (b) Vincent's statements in pointing up to assembled em- ployees the risk of the shop closing if they did not have their own union and go on a 4-day work week, and (c) Carver's statement to Manns at the lodge meeting that he was not going to talk to or even answer the Union with regard to the contract proposals, and that in a stated number of days the contract would be up and "they" could "hit the street," statements constituting a threat to refuse to bargain with the employee representative. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the said Union has been and is the exclusive bargaining representative for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment for Respondent's employees in the appropriate unit, within the meaning of Section 2(4) and Section 9(a) of the Act. 4. The appropriate unit is: All journeymen automobile and truck mechanics, ma- chinists, electrical machinists, welders, trimmers, met- almen, fender, body, painter, radiator repairman, refrigeration, automotive air conditioning mechanics, garage men, service salesmen and towermen, appren- tices and working foremen, excluding salesmen, office decided here Compare Electric Motors & Specialties, Inc, 149 NLRB 1432, Windemueller Electric, Inc, 180 NLRB 686, and Telantograph Corporation, 199 NLRB No 117 Without passing on the factual basis for the assertions, I find no ment in Respondent's further defense that its good faith is estab- lished by its conduct in dropping the contemplated change in the workweek following the May 2 meeting and never putting it into effect, in living up to the specific terms of the contract until its expiration date, in meeting with the Union for any bargaining session requested by the Union, and in not ques- tioning the Union's representative status before the end of the contract term 14 See Daisy's Originals, Inc of Miami, 187 NLRB 251; Plastihne, Inc, 190 NLRB 365, Windemueller Electric, Inc, supra 151 do not regard Adkins' assertion that he obtained signatures on these documents as a contradiction of Manns' testimony in this respect Adkins, who testified after Manns, did not specifically claim to have obtained Manns' signature on these documents POPULAR VOLKSWAGEN clerical employees, professional employees, guards and all supervisors as defined in the Act. 5. By dealing directly with employees rather than with their statutory collective-bargaining representative, by en- gaging in conduct calculated to undermine the representa- tive status of the contract representative of its employees, by entering into bargaining sessions and negotiating with an absence of a good-faith intention of reaching an agreement, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By soliciting employee signatures on communications to their bargaining representative, by indicating that the formation of an independent union by employees and agreeing to a 4-day workweek was the only alternative to the Respondent's closing the service shop, and by threatening to refuse to bargain and to force the Union to strike, in disregard of employees' Section 7 rights, Respondent violat- ed Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent be required to cease and desist and, upon request, bargain collectively with the Union. I shall also recommend that it take certain affirmative action necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER16 Respondent, Popular Volkswagen, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative of its employees in a bargaining unit consist- ing of All journeymen automobile and truck mechanics, ma- chinists, electrical machinists, welders, trimmers, met- almen, fender, body, painter, radiator repairmen, refrigeration, automotive air conditioning mechanics, garage men, service salesmen and towerman, appren- tices and working foremen, excluding salesmen, office clerical employees, professional employees, guards and all supervisors as defined in the Act. (b) Inducing or attempting to induce or encourage em- ployees to bargain directly with it, or to form their own independent union, engage an attorney, and bargain 16 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 447 through such union, concerning terms and conditions of employment while its employees are represented by an ex- clusive bargaining representative. (c) Soliciting from any employee his signature on com- munications to the collective-bargaining representative. Making threats of service department closure as the alterna- tive to their abandonment of the above labor organization in favor of forming an independent union and instituting certain contract changes. Threatening to refuse to bargain and to force a strike. (d) In any other manner interfering with the efforts of the above-named labor organization to bargain collectively on behalf of the employees in the described unit and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative actions which are ne- cessary to effectuate the policies of the Act: (a) Upon request, resume collective bargaining with the aforesaid labor organization concerning hours, wages, and other terms and conditions of employment in behalf of its employees in the bargaining unit found to be appropriate. (b) Post at its Popular Bluff, Missouri, agency, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately 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 the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.18 17 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " is 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 said Regional Director, 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 at which all sides had the chance to give evi- dence, it has been decided that we, Popular Volkswagen, have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to bargain only through your exclusive bargaining representative. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we give you these assurances: WE WILL bargain, upon request, with District No. 9, International Association of Machinists and Aero- space Workers, AFL-CIO, as the exclusive bargaining representative of all employees in the unit consisting of: All journeymen automobile and truck mechanics, machinists, electrical machinists, welders, trimmers, metalmen, fender, body, painter, radiator repairmen, refrigeration , automobile air conditioning mechan- ics, garage men service salesmen and towermen, ap- prentices and working foremen , excluding salesmen, office clerical employees , professional employees, guards and all supervisors as defined in the Act. with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached , embody such un- derstanding in a signed agreement. WE WILL NOT bypass District No . 9, International As- sociation of Machinists and Aerospace Workers, AFL- CIO, and bargain directly with our employees, either individually or in groups, in derogation of their statuto- ry representative's exclusive bargaining authority. WE WILL NOT solicit any employee's signature on com- munications to the collective-bargaining representa- tive, or make any threats, including threats not to bargain with the employee representative thereby forc- ing a strike, and threats to close our service department as the alternative to employee abandonment of their representative in favor of forming an independent union and instituting certain contract changes. WE WILL NOT in any other manner interfer with, re- strain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by Dis- trict No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through represen- tatives of their own choosing , or engage in other con- certed activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activity. All our employees are free to become or remain or refrain from becoming or remaining members of District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, ex- cept to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Nation- al Labor Relations Act, as amended. Dated By POPULAR VOLKSWAGEN (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4150.