Peyton Lincoln-Mercury

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peyton Lincoln-Mercury and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 94 and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 1484 ; Brotherhood of Painters, Deco- rators and Paperhangers of America, AFL-CIO, Painters Local Union No. 1798; Automotive Em- ployees, Laundry Drivers and Helpers Local No. 88, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 3I-CA-3549 January 22, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On July 12, 1973, Administrative Law Judge Henry S. Salim issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. In his Decision, the Administrative Law Judge found that the incidents forming the basis for the 8(a)(1) allegations in the complaint, promises of better work conditions if employees ceased support- ing the Union, were de minimis non curat lex and that the evidence, on an overall perspective, was insuffi- cient to support the allegations of the complaint. Accordingly, he recommended dismissal of the complaint in its entirety. We find merit in the General Counsel's exceptions. The record shows that Respondent sells and services automobiles and automobile parts. At the time in question, late 1972, Respondent and the Union were parties to a collective-bargaining agree- ment having an expiration date of December 31, 1972.1 Early in November, the Union involved herein submitted proposals for a new contract, and negotiations ensued between it and the Respondent shortly thereafter. Shortly before Thanksgiving, mechanic Roger Anderson and two other employees were having a conversation about the Union when they were approached by Bobby Braido, a supervisor. Braido 1 Dates are 1972 unless stated differently. 2 The Administrative Law Judge found this was in reference to the sales broke into the employees' conversation, asking Anderson what he expected from a union contract. Anderson replied that he (and presumably the other mechanics) wanted "50 percent," namely 50 percent of the hourly wage rate paid by customers. Thereu- pon, according to Anderson, Braido stated "if we weren't union, that we would have our 50 percent." On another occasion, a short time thereafter, Anderson told Braido that he objected to having to work on the day after Thanksgiving. According to Anderson, Braido replied that "if we weren't union, we would have the day after Thanksgiving off, that the people up front had it off."2 Lloyd Green, a mechanic, also testified to a conversation that he had with Service Manager Harry Mills. According to Green, Mills stated that "if it wasn't for the union, Peyton [Respondent's president] would do more for us and working conditions would he better." Union Steward Eddie Grade and employee David Irvin also testified that Mills on another occasion and Respondent's president, Peyton Cramer, prom- ised in effect that, absent a union, working condi- tions would be better. Although the Administrative Law Judge stated that he had problems with the credibility of Grade and Irvin, and apparently discredited them, it is clear that he encountered no such problems regarding the credibility of Anderson and Green and that he at least inferentially credited their testimony. We agree that the record supports a finding that Anderson and Green are credible witnesses. The Administrative Law Judge nevertheless found that the allegations testified to by the witnesses had little, if any, tendency to restrain or coerce the employees and were de minimis non curat lex. Citing American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB 620, he recommended that the complaint be dismissed in its entirety. We disagree. We find American Federation of Musicians distin- guishable from the instant case. In that case, the union had threatened a group of individuals with fines when, as it happened, one of those individuals in the group was a supervisor-indeed the son of the employer. Under normal circumstances the fining of a supervisor for the reason there operative would warrant the finding of a violation of the Act. However, aside from the nature of the incident, the respondent took corrective action by repudiating the threat very shortly thereafter, and the Board con- cluded that in such circumstances no finding of a violation or imposition of a remedy was warranted.3 In the instant case, the record shows that the statements to Anderson and Green, to the effect that personnel who apparently were not unionized R See also Columbia Typographical Union No 101, International Typo- 208 NLRB No. 86 PEYTON LINCOLN-MERCURY 597 employees would earn more and receive more time off if they were not represented by a union, came at a time when the Union's contract was nearing expira- tion and when a new contract was to be negotiated. Inasmuch as such subjects as increased earnings and more time off are of vital importance to employees, these remarks could only be interpreted as promising better work conditions if the employees defected from the Union. As the record in any event fails to disclose that Respondent took any corrective action to cure the effects of the coercive remarks, we are not prepared to say that in these circumstances the remarks to Anderson and Green had limited impact. Accordingly, unlike the Administrative Law Judge, we do not find Respondent's conduct de minimis. Rather, to the contrary, we find that such remarks constitute illegal promises of benefit to the employ- ees if they ceased supporting the Union, and therefore violate Section 8(a)(1) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Peyton Lincoln-Mercury is engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union involved is a labor organization within the meaning of Section 2(5) of the Act. 3. By promising employees better working condi- tions if they ceased supporting the Union, Respon- dent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Peyton Lincoln-Mercury, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that they will have better working conditions if they cease supporting the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their statutory rights. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business at Los Angeles, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. graphical Union of North America, AFL-CIO, 193 NLRB 1089, where no violation was found since a local union's illegal fining of a supervisor had been overturned by the International and the fine had been returned to the supervisor before the issuance of a complaint by the General Counsel. Member Jenkins does not subscribe to the Musicians case nor to the dictum concerning "corrective action" in the next paragraph 4 In the event that this 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise our employees that they will have better working conditions if they cease supporting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to organize them- selves, to form, join, or help unions, to bargain collectively through the representatives they choose, to act together for collective bargaining or other aid or protection, or to refrain from any or all of these things. All our employees are free, if they choose, to join the Union or any other labor organization. PEYTON LINCOLN- MERCURY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7352. DECISION HENRY S. SARM, Administrative Law Judge: This proceeding, heard at Los Angeles, California, on April 26, 1973, pursuant to charges filed the preceding January 22 and March 1,1 and a complaint issued March 21, presents the question whether Respondent, herein called the Company, violated Section 8(a)(1) of the Act by promising its employees better working conditions if they were not represented by the Charging Party Unions. Upon consideration of the entire record and of the brief filed by the General Counsel on May 21, 1973, there are made the following: FINDINGS OF FACT The Business of the Company and the Labor Organizations Involved The Company, a California corporation, is engaged in Harbor City, California, in the retail sale of new and used automobiles, parts, and related products. During the past year, Respondent had a gross volume of business in excess of $500,000 and received automobiles, parts, and materials valued in excess of $50,000 for use at its place of business directly from suppliers located outside the State of California. Upon the foregoing admitted facts, it is found that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Unions listed in the caption of this proceeding are labor organizations within the meaning of Section 2(5) of the Act. The Alleged Unfair Labor Practices The Unions and the Respondent Company were parties to a collective-bargaining agreement which was executed on March 12, 1970, and had a termination date of December 31, 1972. Upon timely notice by the Machinists and Aerospace Workers Union, the said Union, by letter dated either November 11 or November 17, submitted to the Company its proposals for a new contract to which the Company offered its written counterproposals on Novem- ber 27. The parties met on December 5, and the Union submitted its revised proposals on December 15. Another negotiating session was held on January 5, 1973, but no agreement was reached as of April 26, the date of the trial. Roger Anderson, who has been employed for 4 years by Respondent as a mechanic, testified that in the latter part of November, before Thanksgiving, Bobby Braido, body shop manager, who is found to be a supervisor within the I All dates are 1972, unless otherwise indicated 4 Anderson testified that during a coffeebreak, these two employees told him that they did not want the Union to represent them now that the meaning of Section 2(11) of the Act, was listening for about 5 minutes to a conversation in which Anderson was engaged with employee Mills and Roberts,2 when he interrupted and asked Anderson "what [he] expected out of a union contract," whereupon Anderson replied that he wanted "50 percent," namely, 50 percent of the hourly labor rate paid by customers. Braido, according to Anderson, said ". . . if we weren't union, that we would have our 50 percent." Anderson also testified that he complained to Braido a week later, during a coffeebreak, when he came up to Braido and told him he objected to having to work the day after Thanksgiving, to which Braido replied that, ". . . if we weren't union, we would have the day after Thanksgiv- ing off, that the people up front had It off." 3 Anderson testified on cross-examination that Cramer, Respondent's president, called a meeting of the shop employees in his office on January 8, 1973. Anderson's testimony follows: Cramer "discussed what the Union had requested and what he had offered the Union, what they had agreed upon. He read us a letter from the National Labor Relations Board, he said, of what the Union could do, what the employees [were] entitled to do, that if the Union had a strike, that we could cross the picket line without the threat of being blackballed from the Union. They could fine us, but they couldn't collect a fine, that he could replace us, and that he would because he had a business to operate. But later on he told us that he couldn't." Anderson testified that after Cramer's meeting with the employees ended, Barry Buxton, an employee, asked Cramer to explain the $4.50 hourly flat rate that he had offered to their Union, the Machinists and Aerospace Workers, which represented the shop mechanics. Cramer, continued Anderson, made it clear that it was illegal for him to make an offer to the employees, as the Respondent and Union were engaged at the time in negotiating a contract, but he would try to answer Buxton's question by citing a hypothetical situation. Anderson testified that Cramer explained to them that a proposal of his for the mechanics to be paid an hourly flat rate of $4.50 could be accomplished if all those mechanics presently employed by Respondent were to be classified as skilled mechanics and those "shop employees" who would be hired in the future were classified unskilled and thus would receive a lower hourly wage than those mechanics now working for the Company On cross-examination, Anderson acknowledged that during this conversation, Cramer never promised the employees this proposed $4.50 hourly wage rate condi- tioned on there being no union in the shop. Barry Buxton corroborated Anderson's testimony as to what occurred in the shop after the January 8 meeting was over at or about 5 p.m., when Cramer explained to employees Estes, Grade, Tackett, and Irvin, as well as Anderson and himself, what the $4.50 hourly flat rate "meant" by citing "a hypothetical situation." John Estes, a mechanic, who is presently one of collective-bargaining agreement with Respondent was about to expire 3 This is an unmistakable reference to the sales personnel who were apparently not unionized PEYTON LINCOLN-MERCURY 599 Respondent's mechanics, corroborated the testimony of the other witnesses as to what occurred in the shop after the January 8 meeting, when Cramer answered employees' questions. Eddie Grade, who has been union shop steward 4 years, one of Respondent's mechanics, testified that he ap- proached Harry Mills, service manager, in January 1973, and engaged him in a conversation about the Union, during which Mills told him that ". . . things would be better if we didn't have a union.4 He said that I didn't know Peyton [Cramer ] as well as he did, and I told him that Peyton had had the past three years to show us some indication that he would do the right thing by us, and he hadn't. He hadn't done the right thing. I told him that Peyton could have given us some time off to come out there when it was slow and send us home. Different things like that. Or days off to indicate that he wanted to do the right thing. . . . I said that without the Union that we would be working Monday nights until 9, and I said that we would be working free motor clinics without having any choice in the matter . . . . He said that we should give Peyton a chance." On redirect examination Grade testi- fied: ". . . that Harry Mills wasn't afraid to talk to me about the Union, nor was I afraid to talk to him. We weren't aware that we were saying something wrong, when we was talking. He wasn't trying to be coy in not saying the word `Union' and neither was I because we didn't realize we shouldn't have been talking about that . . . . We weren't afraid of what we were saying when we were standing out there talking" [on Respondent's premises]. Grade testified also that at the employees' Christmas party held on December 22, Peyton said, "that he didn't need anyone to tell him how to run his business, that he had his own pension plan, and health plans available to us." On cross-examination, Grade stated that he was kept informed of the negotiations between the Company and his Union, as he was the union steward and that he knew prior to the Christmas party the Company's offer of its proposed pension and health fund and that the Company had proposed to the Union its willingness to establish a pension and health fund. Also, testified Grade, during Cramer's talk at the Christmas party, which Grade described as "a fairly short speech," that Cramer never mentioned the Union nor did he "condition" his pension and health plans "on getting rid of the Union." David Irvin testified that he voluntarily left Respon- dent's employ as a mechanic in March 1973. Mills, the service manager of the Mechanical Department, testified that he fired Irvin. Irvin also testified that during the last week of December, he was present when Mills told Lloyd Green, a mechanic, that ". . . without the Union, he thinks the Company would run a lot better . . . that there probably would be more benefits." On cross-examination, when counsel for Respondent asked him if he was "sure" that Mills said this, he answered "not positive." When Counsel persisted, insisting that Mills never made such a statement, Irvin said "I think he did." When Counsel again asked, "Are you sure of that?" Irvin replied "He said Peyton Cramer would like to run his own business." At this point, the transcript reads as follows: Q. You are sure that Mr. Mills said that Peyton Cramer would like to run his own business, but you are not sure of anything else, are you? A. No, sir. This is what I overheard he was talking to Lloyd Green. Q. And the only exact words you remember Mr. Mills saying is that Mr. Cramer would like to run his own business; isn't that correct? A. In his way, yes, I'd say. Q. And that's all you remember Mr. Mills saying at that time? A. Right. Lloyd Green, a mechanic, testified that in the "first part of January" 1973, Harry Mills came over to his stall in the shop, where he and Irvin were discussing the Union, and after Mills stood there "listening ... to them, Harry got into the conversation. Harry said that if it wasn't for the Union, Peyton would do more for us and working conditions would be better." Braido testified he became body shop manager on November 15, and prior to that time, he was employed by Respondent as a "middleman." Basically, his testimony on substantive matters was substantially the same as that of Anderson. On cross-examination, it was established that all of the conversations between Anderson and Braido occurred after the latter became manager of the body shop on November 15. Mills, Respondent's service manager for over 5 years, who is found to be a supervisor within the meaning of Section 2(11) of the Act, denied he ever had a conversation with Grade concerning the Union or that he ever told Lloyd Green or any other employee, that Respondent's president, Cramer, "would do more for the employees and working conditions would be better if they got rid of the Union . . . [or] without the Union, the Company would run a lot better . . . [and] there probably would be more benefits for the employees." Peyton Cramer, president and co-owner of Respondent Company, testified that immediately upon receiving notice from the Union by letter dated November 11, with respect to the impending expiration of the current collective- bargaining agreement, he instructed his "supervisors," Braido and Mills, that he "was handling the complete negotiations through Mr. Lerten with the Union and that at no time was any person to discuss with any employee of Peyton Lincoln-Mercury anything concerning the Union, pros or cons, anything concerning wages, benefits, pen- sions, anything on that subject." Cramer denied that at the Company's Christmas party, he ever mentioned to the assembled employees anything about the Union nor did he mention anything about union negotiations. Cramer then testified about a meeting in his office which he had with "all the mechanics, body shop employees, porters and parts department, anybody who was or would be covered under the union contract." Present also were Braido, co-owner 4 Resp Exh 2, which is Grade's affidavit, given to a Board investigator, contains no mention that Mills stated "things would be better if we didn't have a Union " On cross-examination, he hedged his previous testimony by stating "1 am reasonably sure that he said that things would be better without the Union " 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peter Revson, and Tom Rees, controller of Respondent Company. Cramer continued that he informed everyone present of the present status of negotiations with the Union, explaining the Company's and Union's proposals, particularly the Company's offer of an hourly flat rate of $4.50, and his offer to the Union that the day after Thanksgiving should be a paid holiday. He continued that he informed the employees which proposals had been agreed to by the parties up to that time. He denied that at any time during this meeting, he made a statement with respect to better terms and working conditions if the employees would "get rid" of the Union. The afternoon of the same day as the employees' meeting, Cramer received a message that Buxton wished to see him, whereupon he met with Buxton at approximately 5 p.m. Buxton asked him to explain "what the $4.50 hourly flat rate offer meant which the Company had proposed to the Union." Also present were other shop employees who joined in the conversation.5 Cramer answered not only Buxton's question but also those of other employees who were present. Conclusions To recapitulate, the following alleged incidents are the basis for the contention that Respondent violated Section 8(a)(1). The first of these allegations is when Braido, the body shop manager, while engaged in a discussion with Anderson, inquired what the latter "expected out of a union contract." Also, when Anderson complained to Braido that he objected to not having the day off after Thanksgiving, to which Braido is purported to have replied that "if we weren't union, we would have the day off, that the people up front had it off" Grade's testimony that Mills, the service manager, allegedly told Grade, who initiated a discussion about the Union with Mills, that "things would be better off if we didn't have the Union." Lloyd Green, a mechanic, in a conversation which he initiated with Mills, alleged that Mills said: "without the Union, he thinks the Company would probably run a lot better . . . that there probably would be more benefits." The issue here is whether Respondent, through Cramer and its supervisors, Braido and Mills, interfered with, restrained, and coerced employees Anderson, Grade, and Green within the meaning of Section 8(a)(1) when they allegedly made the statements detailed above. In determining whether the above allegations testified to by these employees are violations, the following facts must be considered: The background in which the conversations took place, the time and manner under which it was made, and all the surrounding circumstances necessary to 5 Anderson, Tackett, Grade, and others 6 Nashua Manufacturing Corporation of Texas v N L R B, 218 F 2d 88E, 887 (C A 5), Welch Scientific Co v N L R B, 340 F 2d 199, 204 (C.A 2, 1965) 7 American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB 620 8 See Howard Aero Co, 119 NLRB 1531, General Electric Co, 119 NLRB 1821 conclude whether the conversations testified to by the above participants had the coercive characteristics pros- cribed by Section 8(a)(1) of the Act .6 In applying these principles to the facts in the case at hand, it is evident that there was no violation of Section 8(a)(1), as the matters complained of by the General Counsel had little, if any, tendency to restrain or coerce the employees. The incidents complained of by the General Counsel are de minimis non curat lex. Moreover, when one considers the intimate, informal, and "first-name-basis" relationship which existed between the employees and their supervisors including Cramer, the president of the Compa- ny, the fact that they discussed working conditions and the Union, and that all of these conversations were initiated by the employees themselves, it would seem to be rather captious to hold that, under the circumstances present here, these friendly conversations require a ruling of an independent violation of Section 8(a)(1) or that any useful purpose would be served by issuing a cease-and-desist order based on them. The Board recently held "It is true that some courts have held that the Board may not withhold issuance of a remedial order once a violation is found. We are not here disposed to find the quantum of misconduct sufficient to constitute a violation. In this connection, we believe the courts are coming to the view that violations having little or no impact upon employee exercise of statutory rights should not form the basis of either a proceeding or a remedy under our Act." 7 Moreover, for the reasons indicated above, as well as the credibility of Grade, the union steward, and Irvin to recall some past events, there is insufficient evidence adduced by the General Counsel on an overall perspective, upon which to predicate a finding that Respondent interfered with, restrained, or coerced the employees within the meaning of Section 8(a)(1) of the Act.8 CONCLUSIONS OF LAW 1. Peyton Lincoln-Mercury is engaged in commerce within the meaning of the Act. 2. The Unions are labor organizations within the meaning of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. In view of the foregoing conclusions, and upon the entire record,9 it is found that the evidence warrants no finding that the Respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act, and it will, therefore, be recommended that the complaint be dismissed in its entirety- 9 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, recommendations, and recommended Order 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.