Ed Chandler Ford, Inc.

ED CHANDLER FORD, INC. Ed Chandler Ford, Inc. and Automobile Salesmen's Union Local 1095, United Food and Commer- cial Workers International Union, AFL-CIO. Cases 32-CA-1244, 32-CA-1307, and 32-RC- 446 January 27, 1981 DECISION AND ORDER On October 31, 1979, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. The Administrative Law Judge found that Re- spondent violated Section 8(a)(l) of the Act in var- ious ways, but did not violate Section 8(a)(3) and (5) of the Act. With respect to the 8(a)(5) allega- tion, the Administrative Law Judge did not find a violation on the ground that on the critical date of the Union's demand for recognition the Union did not represent a majority of the employees in the appropriate unit. He did recommend that the elec- tion be set aside on the basis of Respondent's ob- jectionable conduct, and that a second election be held. We agree with the Administrative Law Judge's 8(a)(l) findings and his dismissal of the 8(a)(3) allegation. However, we would find that the Union represented a majority at times relevant; that the unfair labor practices were of such a serious nature as to foreclose the possibility of a fair second election in the foreseeable future; that Re- spondent has violated Section 8(a)(l) and (5); and that a bargaining order is necessary and proper to remedy the violations. Concerning the Union's majority status, the record shows that on August 11, the date of the demand and refusal to bargain, the Union had 18 cards out of a unit of 35 employees. 2 The Adminis- trative Law Judge in finding the Union did not I Respondent and the General Counsel have excepted to certain credl- bility findings made by the Administrative L.aw Judge. It is the toard's established policy not to overrule an administrative las judge's resolu- tions with respect to credibility unless the clear preponderance of a1 of the relevant evidence convinces us that the resolution, are incorrect Standard Dry Wall Products., Inc.. 91 NLRH 544 (1950), enfd 188 2d 362 (3d Cir. 1951). We have carefully examined the record and find rio basis for reversing his findings. 2 We agree with the Administrative la Judge's unit placemelnt find- ings that employees Acree and Kim Choi are included in the appropri;lle unit and that finance managers are excluded. We reach this result ulith respect to the finance managers Xon, the ground that hey are nolt illesper- sons and thus not properly part of the stipulated unit limited to salesper sons. represent a majority at times relevant concluded, however, that employee Maderios' card could not be included among those supporting the Union's claim of majority status because, assertedly, it was signed in the belief that its only purpose was to secure an election. This conclusion is, we believe, unwarranted. On August 11 salesman Taylor while at work gave Maderios an authorization card3 and asked him to read it. Maderios took the card to his office in another building, filled it out, and returned it to Taylor. There is no contention or evidence that Taylor stated that the card was being solicited solely for the purpose of securing an election or that Maderios in any manner indicated at the time that he was signing the card only for such purpose. Thus there is nothing in the circumstances sur- rounding the signing of the card to suggest that the Union or Taylor misled Maderios with respect to the card's purpose or that for any other reason Ma- derios' overt action in signing should be given any meaning other than that unambiguously stated on the card; i.e., that he authorized the Union to rep- resent him. However, about a month before being solicited and hence about a month before the organizing campaign began, Maderios, a former union member, ran across a union representative who told him that the Union was about to circulate cards among Respondent's employees. The repre- sentative asked Maderios to sign one (when one was presented to him), explaining that the only purpose of the cards was to get an election. Fur- ther, at the hearing Maderios testified that he did not read the card given him by Taylor prior to signing it because it was unnecessary to do so as the union representative had stated it was only for an election. On the basis of these matters, the Ad- ministrative Law Judge, as indicated, concluded that Maderios signed the card solely for the pur- pose of securing an election and thus that his card did not support the Union's claim of majority rep- resentation. This result is both unrealistic and con- trary to Board law. First, the union representative's statement to Ma- derios made a month before Maderios signed and prior to the start of the organizing campaign cannot properly be considered part of "the totality of circumstances surrounding the card solicita- tion"4 that the Board considers in determining if a card signer has been misled with respect to the :' The card given to Maderios, like all others placed In es idence by the General Counsel , conrtains clear and unequi ocal langualge that the signer of te .afrl Iluhl, rizes the I !iT to repres nt hini for purposes f collec- tis, bargliing 4 See, g. , Srr,lu, & ( ,. 172 NIRI 7 2. 713, fri - (1968) 254 NLRB No. 82 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes for which his card will be used. The inci- dent was too remote in time and irrelevant in view of the fact that the circumstances surrounding the actual solicitation of the card reveal that Taylor made no representations at all concerning the card's use and told Maderios to read the card. Con- sequently, there is no proper basis for concluding that the solicitation of the card was accompanied by any explicit or implicit representation that the card would be used only for an election. Second, with respect to Maderios' statement that he signed the card without reading it because of the union representative's statement it would be used only for an election, this testimony concerns subjective intent and under established Board policy is of no weight in determining the purpose for which a card was signed.5 The rejection of such subjective purpose is especially appropriate here where Ma- derios at the time of signing said nothing suggest- ing he was supporting an election only. Finally, it seems wholly unrealistic to us to conclude, as in effect the Administrative Law Judge did, that Ma- derios, a member of the Union for some 10 years, did not know without reading the authorization card at the time he was solicited what it provided and that he was unaware it could be used to secure recognition as well as an election. In short, we find Maderios' card valid for purposes of determining the Union's majority status and in consequence conclude that at all times relevant the Union repre- sented a majority, that is, 18 employees out of a unit of 35. With respect to the unfair labor practices, we would find that they fully warrant and require a bargaining order in order to remedy effectively Re- spondent's unlawful conduct. We are not dealing in this case with some random 8(a)(1) violations com- mitted by a minor supervisor and involving only a scattered few of the unit employees. Rather, the situation was one in which the day after the Union made its demand Respondent's sales manager in a talk to the assembled unit employees impressed upon them that their support of the Union was in- compatible with their continued employment (i.e., in effect he threatened to discharge them for their union activity) and further unlawfully threatened them with a loss of existing benefits if the Union got in. He also in his talk unlawfully prohibited the employees from discussing the Union at any time during the workday. Thus we have here unitwide serious unlawful threats and restrictions, the effects of which are unlikely to be eradicated by our usual cease-and-desist remedial order but which will remain to interfere with the employees' expressing a free choice in the second election recommended Id. at 734. by the Administrative Law Judge. Consequently, in view of the above, we find that Respondent un- lawfully refused to recognize and bargain with the Union on and after August 11, 1978, and, accord- ingly, we shall order Respondent to recognize and bargain with the Union upon request, said Order to be effective as of August 11, 1978. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Ed Chandler Ford, Inc., Hayward, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(e) and re- letter the subsequent paragraph accordingly: "(e) Refusing to recognize and bargain in good faith with Automobile Salesmen's Union Local 1095, United Food and Commercial Workers Inter- national Union, AFL-CIO, as the exclusive bar- gaining representative of the following unit which we find appropriate for such purposes: "All salesperson employed by the Employer at its Hayward, California, location, excluding all other employees, office clericals, guards and supervisors as defined in the Act." 2. Substitute the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Upon request, bargain with Local 1095 as the exclusive bargaining representative of the em- ployees in the appropriate unit, as described above, with respect to wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NO-rICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees that their union activities are inconsistent with continued employment with Ed Chandler Ford, Inc. WE WILL. NOT maintain in effect a rule which prohibits employees from engaging in union solicitation or from talking about a 852 ED CHANDLER FORD. INC union during nonworking time in nonpublic areas of Ed Chandler Ford, Inc. WE WILL NOT deliberately include names of ineligible voters in the voter eligibility list we furnish to the National Labor Relations Board for the purpose of defeating a union in an elec- tion conducted by the National Labor Rela- tions Board. WE WILI. NOT threaten employees that their bonuses will be canceled if they support a union. WE WILL NOT refuse to recognize and bar- gain with Automobile Salesmen's Union Local 1095, United Food and Commercial Workers International Union, AFL-CIO, as the exclu- sive representative of the employees in the fol- lowing appropriate unit: All salespersons employed by the Employer at its Hayward, California, location, exclud- ing all other employees, office clericals, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with or attempt to restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL rescind our rule which prohibits employees from engaging in union solicitation or from talking about a union during nonwork- ing time in nonpublic areas of Ed Chandler Ford, Inc. WE WILL, upon request, bargain with Local 1095 as the exclusive representative of the em- ployees in the above unit, and embody in a signed written agreement any understanding reached. ED CHANDLER FORD, INC. DECISION STATEMENT OF ITHE CASE JERROLD H. SHAPIRO, Administrative Law Judge: This proceeding is based upon unfair labor practice charges filed in Cases 32-CA-1244 and 32-CA-1307 and a representation petition filed in Case 32-RC-446 by Automobile Salesmen's Union Local 1095, United Food and Commercial Workers International Union, AFL- CIO,' herein called the Union. The unfair labor practice charge in Case 32-CA-1244 was filed on September 22, 1978, and amended on Sep- tember 25, 1978, and November 15, 1978. The unfair labor practice charge in Case 32-CA-1307 was filed on I Pursuant to the stipulation of the parties, the name of the Charging Party-Petitioner, formerly Automobile Salesmen's Union Local 1095, Retail Clerks International Union, AFL-CIO, has been amended to re- flect the change resulting from the merging of Retail Clerks International Union with Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979. October 18, 1978. On November 20, 1978, the Regional Director for Region 32 of the National Labor Relations Board on behalf of the Board's General Counsel issued a consolidated complaint based upon the aforesaid charges, which was amended on March 27, 1979. The amended consolidated complaint alleges that Ed Chandler Ford, Inc., herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amend- ed, herein called the Act. Respondent filed an answer and an amended answer denying the commission of the alleged unfair labor practices. 2 On August 11, 1978, the Union filed the aforesaid rep- resentation petition wherein it petitioned the Board to conduct a representation election among Respondent's salespersons. Pursuant to a Stipulation for Certification Upon Consent Election approved by the Board's Region- al Director on September 1, 1978, an election was con- ducted on September 26, 1978, in a unit of Respondent's salespersons. The original tally was: 9 for, and 18 against, the Union; there were 10 challenged ballots. The parties subsequently stipulated that the challenges to three of the ballots should be sustained, thereby leaving seven chal- lenged ballots, an insufficient number to affect the re- sults. The Union filed timely objections to the conduct of the election and the Board's Regional Director for Region 32, on November 20, 1978, after an investigation, issued his Report and Recommendation on Objections wherein in essence he recommended that several of the objections be considered jointly with the unfair labor practices alleged in the consolidated complaint previous- ly issued in the instant unfair labor practice proceeding. On April 27, 1979, the Board affirmed this decision.2 On May 18, 1979, the Board's Regional Director for Region 32 issued an order consolidating for hearing the Union's objections in Case 32-RC-446 with the unfair labor practices alleged in Cases 32-CA-1244 and 32- CA-1307. I conducted a hearing in this consolidated pro- ceeding on July 10-12, 1979. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the post-hearing briefs of the General Counsel and Respon- dent, I make the following: FINDINGS OF FACT I. THE AI.I.EI) UNFAIR LABOR PRACTICES A. Background and Issues Respondent operates a Ford Motor dealership in Hayward, California, where it sells new and used motor vehicles. During the time material herein it employed be- tween 30 and 40 salespersons who were supervised by General Sales Managers Al Filippi and Carl Viglione 2 In its answer to the consolidated complaint Respondent admits the Union is a labor organization within the meaning of Sec 2(5) of the Act I.ikewise, Respondent admits that it meets the Board's applicable discre- tionary jurisdictional standard and is an employer engaged in commerce s ithin the meaning of Sec 2(6) and (7) of the Act Accordingly, I find it ll cfcctu;llte the policie, of the Act for the Board to assert its Jurisdic- Iionl oer the unfair labor practice cases herein It'd handler Ford. Inc.. 241 NRH 120(1 (1979 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Sales Manager Lanny Brum and Used-Car Manager Jack Diggs. Respondent's president and principal owner is Ed Chandler. In either the first or the second week of August 1978, 4 the Union commenced a campaign to organize Respon- dent's salespersons. Respondent's management learned about the Union's organizational campaign on August 11, when union business agents visited Respondent's presi- dent, Ed Chandler, and requested that Respondent rec- ognize the Union as the salespersons' exclusive bargain- ing representative and bargain with the Union for a col- lective-bargaining agreement covering those employees. Respondent's president refused to do this so the Union on August 11 filed a representation petition with the Board's Oakland, California, Regional Office seeking a representation election in a unit of Respondent's salesper- sons. On August 11, General Sales Manager Filippi spoke to salesperson Pearl Quilice about the Union and on August 12, at a regularly scheduled sales meeting, spoke to all of the salespersons about the Union. On August 31 Respondent and the Union entered into an agreement which was approved the next day by the Board's Regional Director wherein the parties agreed that the Board would conduct a representation election on September 26 in a unit of Respondent's salespersons. The election was conducted as scheduled and the Union failed to receive a majority of the ballots cast. The ultimate issues presented for decision by the pleadings are as follows: 1. Whether General Sales Manager Filippi on August 11 questioned salesperson Quilice about her union activi- ties and sympathies and warned Quilice that Respondent would never bargain with the Union and would dis- charge the salespersons who supported the Union. 2. Whether General Sales Manager Filippi on August 12, when he met with the salespersons, engaged in the following conduct: (a) threatened to discharge salesper- sons who supported the Union; (b) threatened to cancel bonuses paid to the salespersons if they supported the Union; (c) stated that a former salesperson, Mike Aahle, who quit his employment, would have been discharged for engaging in protected concerted activity; and (d) an- nounced and implemented an overly broad no-solicita- tion rule which prohibited the salespersons from discuss- ing the Union at any time or place on Respondent's premises. 3. Whether General Sales Manager Filippi at the August 12 meeting or at another meeting in August an- nounced that Respondent had instituted a 10-car-per- month production quota for each salesperson and wheth- er this announcement was motivated by a desire to dis- courage the salespersons from supporting the Union. 4. Whether in either August or September, Respon- dent announced and implemented a profit-sharing plan for its salespersons in order to discourage them from sup- porting the Union. 5. Whether Respondent deliberately included an ineli- gible employee in the voter eligibility list it furnished tha Board in order to defeat the Union. 4 All dates herein refer to 1978 unless other ise specified. 6. Whether Respondent discharged salesperson Frank Flores on August 31 because of his union sympathies and activities. 7. Whether Respondent's refusal to recognize and bar- gain with the Union as the salespersons' exclusive bar- gaining representative warrants a remedial bargaining order. B. Filippi's August I Conversations With Quilice The complaint alleges in substance that, on August II1, General Sales Manager Filippi, in speaking to an em- ployee, interrogated the employee about that employee's and other employees' union activities and stated that Re- spondent would never bargain with the Union and that employees who supported the Union would be dis- charged. In support of these allegations, the General Counsel called sales person Pearl Quilice, who testified that on August II, soon after the union representatives visited Respondent's president, Filippi, who was a friend of Qui- lice, approached Quilice and asked whether Quilice "Had anything to do with the Union." Quilice answered, "[Y]es" that she was "involved." When Filippi asked for an explanation, Quilice told him that union representa- tion was the only way employees could negotiate for anything. Filippi told Quilice he thought that she was making "a mistake," and that the Union could not do anything for the employees because Ed Chandler, Re- spondent's president, would "never negotiate" with the Union. Quilice further testified that later the same day she received a telephone call at home from another sales- person who stated that Respondent's president, Ed Chan- dler, was looking for her. Quilice testified she assumed Chandler wanted to talk to her about the Union, so she phoned Filippi and asked why he had told Chandler about her involvement with the Union and asked why Chandler wanted to speak to her. According to Quilice, Filippi replied that "he" knew who the "troublemakers" were and would have to fire them and expressed the hope that Quilice would still remain his friend. Filippi, a witness for Respondent, admits he spoke to Quilice on August 11, but denies questioning her about her union activities or threatening to discharge salesper- sons who supported the Union. His description of the conversations is as follows. On the afternoon of August 11 he visited Quilice in her office which was not unusual because they were friends. He advised Quilice that the dealership had just been petitioned for by the Union. Quilice indicated she knew about this and stated that be- cause of her long friendship with Filippi she did not want to act behind his back but wanted him to know she was a union adherent. Filippi indicated that he thought she was "nuts." Filippi further testified that later that day Quilice phoned him at work and told him she was upset because another salesperson had informed her that Ed Chandler wanted to speak to her. Quilice asked whether Filippi had informed Chandler about Quilice's union involvement. Filippi stated that he did not keep very many secrets from Chandler and had told Chandler that she was a union adherent. Quilics stated that she was upset about this and asked why Chandler wanted to 854 ED CHANDLER FORD, INC. speak to her. Filippi stated that Chandler was looking for her because she had left work before the end of her shift. As described above, Filippi's and Quilice's testimony about their August 11 conversations is in sharp conflict. It is my opinion, based upon my observation of the wit- nesses, that Filippi, in testifying about these conversa- tions, was the more credible witness. It is for this reason that I shall recommend that these allegations be dis- missed. C. Filippi's August 12 Meeting With the Employees On Saturday, August 12, Filippi met with all of the salespersons at a regularly scheduled sales meeting which lasted approximately between 30 minutes to an hour. Fi- lippi spent the greater part of this meeting speaking to the salespersons about the Union in an effort to dissuade them from supporting the Union. The record establishes that at sales meetings, as salesperson Mark Gelender tes- tified, Filippi "is not a soft, easy guy" but is "pretty hard nosed." During the August 12 meeting, it is undisputed that, in an effort to persuade the salespersons that union representation would not be beneficial to them, Filippi used the same tactic that he normally used to motivate the salespersons to increase their production; namely, he spoke in an angry tone of voice and used profanity. However, Gelender credibly testified that on August 12 Filippi "was a little hotter than usual." The complaint al- leges that Filippi, during the course of the meeting, ex- pressed certain statements which violated Section 8(a)(1) of the Act. I shall deal with these allegations one at a time. i. Filippi allegedly informed the salespersons "that a former employee would have been discharged because of his protected concerted activities if he had not voluntar- ily terminated his employment" (complaint, par. 9(e)). In 1978 before the events material to this case, sales- person Mike Aahle, who is a close friend of Filippi, cir- culated a petition among the salespersons which asked that Respondent change their working hours. A substan- tial number of the salespersons signed the petition. After Aahle submitted it to management several of the signers changed their minds and informed management and were critical of Aahle for circulating the petition. Respondent did not change the salespersons' hours and Aahle quit. The complaint alleges that Filippi on August 12 told the salespersons that "Aahle would have been discharged be- cause of his protected concerted activities if he had not voluntarily terminated his employment with Respon- dent." In support of this allegation the General Counsel relies on the testimony of salespersons Quilice and Taylor that Filippi told the salespersons that, if Aahle had not volun- tarily terminated his employment, Filippi would have discharged him for circulating the aforesaid petition. The testimony of salespersons Flores and Kane and Sales Manager Brum, the other witnesses called by the Gener- al Counsel, does not jibe in significant respects with Tay- lor's and Quilice's. Flores testified in substance that Fi- lippi only stated that the employees would not succeed in organizing a union because they could not rely on their fellow employees' support because there were "a lot of backstabbers" among the employees and, as an ex- ample of this, pointed to Aahle's experience. Brum testi- fied Filippi stated that he was forced to discharge Aahle for attempting to organize a "salespersons' committee." Kane first testified that she had absolutely no recollection of Filippi speaking about Aahle, then, after looking at the affidavit she submitted to the Board, testified she could only recall Filippi stating that Aahle was no longer employed by the Employer. Then, when asked whether Filippi used the phrase "troublemaker," she tes- tified, "ilt was used in reference to Mike Aahle [who] was a troublemaker and there were other troublemakers that are so-called backstabbers and if such-and-such doesn't work out, they will stab you in the back too," and on cross-examination she expanded upon this, now testifying that she was "positive" Filippi said he had ter- minated Aahle because Aahle was a troublemaker. Respondent called five witnesses-Sales Manager Fi- lippi and salespersons Derrick, Gelender, Gibbs, and Kaleal-who testified about Filippi's statements concern- ing Aahle. Each specifically denied that Filippi stated that if Aahle had not voluntarily terminated his employ- ment Filippi would have terminated him. Filippi testified that he told the employees about the background leading up to Aahle's voluntary termination; namely, as de- scribed above, that the employees who signed the peti- tion circulated by Aahle failed to support him and that Aahle quit his employment. Filippi further testified, con- sistent with the testimony of the General Counsel's wit- ness Flores, that he warned the employees who were supporting the Union that in his opinion the same thing would happen to them as Aahle; that their fellow em- ployees would not support them but would stab them in the back. Filippi's testimony was corroborated in signifi- cant respects by Derrick, Gibbs, Gelender, and Kaleal. Derrick testified that Filippi stated he hoped the employ- ees did not leave their fellow employees "hanging high and dry" like the employees did when Aahle initiated a petition to change working conditions and testified that Filippi referred to the employees who deserted Aahle as "backstabbers." Gibbs testified in substance that Filippi stated Aahle had organized for the Union, and that the other salesmen did not support him, which was one of the reasons why Aahle quit. Gelender testified Filippi stated that the employees had deserted Aahle and left him standing alone, and Filippi did not want this to happen to any of the employees who supported the Union, but for them to be prepared for this as anything could happen. Kaleal testified that Filippi stated that Aahle had submitted a petition to management signed by a majority of the employees, but some of the employees who had signed it did not support Aahle. As described above, Quilice's and Taylor's testimony about Filippi's remarks concerning Aahle is in sharp con- flict with Filippi's. It is my opinion, based upon my ob- servation of the witnesses, that Filippi in testifying about this particular matter was the more credible witness. Moreover, his testimony is corroborated by the General Counsel's witness Flores and in significant respects is corroborated by Respondent's witnesses Derrick, Ge- lender, Gibbs, and Kaleal. It is for these reasons that I shall recommend that this allegation be dismissed. 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Filippi allegedly "stated to [the] assembled employ- ees that those employees who supported the Union would be discharged" (complaint, par. 9(c)). In support of this allegation the General Counsel relies on the testimony of salespersons Flores and Quilice. Flores testified that Filippi stated that employees con- nected with the union movement and who held union meetings would be "fired on the spot." Flores also testi- fied that Filippi stated, "[Ilf he found out who the trou- blemakers were they would be fired." Quilice testified that Filippi stated that "the troublemakers would be fired."5 Quilice did not corroborate Flores' testimony in other respects. Likewise, salespersons Taylor and Kane and Sales Manager Brum, the General Counsel's other witnesses, did not corroborate either Quilice's or Flores' aforesaid testimony. Respondent's witnesses, General Sales Manager Filippi and salespersons Derrick, Ge- lender, Gibbs, Kaleal, and Boski, each testified that Fi- lippi did not state that employees would be discharged for supporting the Union. It is my opinion, based upon my observation of the witnesses, that Filippi and the several witnesses who cor- roborated him were more credible than either Flores or Quilice when they testified about the disputed subject matter. In addition, the testimony of Quilice and Flores is not mutually corroborative and is not corroborated by the testimony of the other witnesses called by the Gener- al Counsel. It is for these reasons that I find that, at the August 12 meeting, Filippi did not, as alleged in the complaint, expressly state that "those employees who sup- ported the Union would be discharged." Although Filippi, as alleged in the complaint, did not expressly tell the employees that "those employees who supported the Union would be discharged," it is undis- puted that he told the employees that, if they wanted union representation, they should go to work for an em- ployer whose employees were represented by a union. Filippi testified, "I'm sure I said" that "if they [referring to Respondent's salespersons] wanted a union, they should go work in a union house." Likewise, Respon- dent's witness Gelender testified Filippi told the salesper- sons that "he did not see why if you wanted a union you did not go to a union store, they were all over the area." And the General Counsel's witness Taylor testified Fi- lippi stated that, if the salespersons wanted union repre- sentation, they "should go [to] some other place where there was a union." Based upon the foregoing, I find that Filippi at the August 12 meeting told the salespersons that, if they sup- ported representation by the Union, they should go to work for another employer whose employees were rep- resented by a union. As I have found previously, this statement was expressed by Filippi at a meeting where Filippi had adopted an antagonistic and angry demeanor toward the salespersons in an effort to dissuade them from supporting the Union and to impress upon them his opposition to their supporting the Union. Viewed in this context, the statement went beyond permissible bounds and conveyed the threat that management considered en- " At first Quilice was unable to remember this statement She remem- bered it after her memory was refreshed by an affidavit she had submit- ted to the Board. gaging in union activities and continued employment es- sentially incompatible. In other words, "this statement is essentially a thinly-veiled threat to fire [employees] for [their] union activities and is thus violative of the Act." N.L.R.B. v. Intertherm, Inc., 596 F.2d 267 (8th Cir. 1979), enfg. 235 NLRB 693 (1978) (statement that if an employee was not happy with the company he should take a look elsewhere for a job); N.L.R.B. v. Crystal Tire Company, 410 F.2d 916, 918 (8th Cir. 1969) (statement that if employees wanted a union they should work for another company); see also Padre Dodge, 205 NLRB 252 (1973). Based upon the foregoing, I find that Respondent vio- lated Section 8(a)(1) of the Act by suggesting to its em- ployees that union activity and continued employment are incompatible.6 3. Filippi allegedly announced and implemented an overly broad no-solicitation rule prohibiting employees from discussing the Union at any time or place on Re- spondent's premises (complaint, par. 9(f)). In support of this allegation the General Counsel points to the testimony of salespersons Kane and Flores that Filippi stated that employees who talked about the Union would be discharged. L reject this testimony be- cause neither Kane nor Flores impressed me as a credible witness when they gave it. Also, their testimony is con- trary to the testimony of the nine other witnesses who testified about what took place at this meeting. My review of the record persuades me that Respon- dent's assertion advanced in its post-hearing brief that the overwhelming weight of the record evidence establishes that Filippi told the employees not to discuss the Union "on Company time" (br., pp. 53 and 82) is a correct as- sessment of the record. In this regard the record reveals the following: Filippi testified he told the employees not to talk about the Union "on my time" because he told them he was paying them for that time and told them they could dis- cuss the Union during their "off time." Salesperson Derrick testified Filippi stated not to dis- cuss the Union "on Company time," but if they wanted to discuss the Union to do it on their "own time." Salesperson Gibbs testified Filippi stated he did not want groups of employees talking about the Union on "Company time," but they could do this on their "own time," as Filippi "did not want [the Union] discussed at the dealership." Salesperson Kaleal testified Filippi stated he did not want groups of employees meeting about the Union on "Company time," but that what they did "after hours was [their] own business." Sales Manager Brum testified Filippi stated he did not want groups of employees discussing the Union, but 4 I am of the view that this unlawful conduct is emcompassed by the portion of the complaint which alleges that Filippi "stated to the] assem- bled employees that those employees who supported the Union would be discharged." In any event, because there is no factual dispute as to this conduct and because the issue was fully litigated and is intimately related to the subject matter of the complaint, I shall find and remedy this un- lawful conduct even though it is not specifically alleged to be an unfair labor practice, E.g., Monroe Feed Store, 112 NLRB 1336 (1955). 856 ED CHANDLER FORD, INC. "they could do it on their own time, not to do it on his time." Salesperson Quilice testified Filippi stated the employ- ees were not allowed to discuss the Union "on his time." Salesperson Boski testified Filippi told the employees not to discuss the Union during "Company working hours." Salesperson Gelender testified Filippi told the employ- ees he did not want them to meet in groups and discuss the Union, but were free to do so "after hours." Based upon the foregoing, I find that at the August 12 meeting Filippi told the salespersons that they could not talk about the Union during "Company time" or "his [Filippi's] time." In my view, these terms as Filippi used them are synonymous. This restriction is patently unlaw- ful because the terms "Company time" or "Filippi's time," as used by Filippi, embraces both actual working time and nonworking time, such as lunch and break peri- ods. See, e.g., Florida Steel Corporation v. N.L.R.B., 529 F.2d 1225, 1230-31 (5th Cir. 1976); WIPO, Inc., 199 NLRB 649 (1972). It is settled that a rule which prohib- its employees from talking about the Union during their nonworking time on company premises, such as lunch and break periods, is presumptively invalid and may be saved only by a showing by the employer of special cir- cumstances which make such a rule necessary to main- tain plant discipline or production. 7 Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945). Here the record fails to establish that such an impermissibly broad rule was necessary to maintain plant discipline or pro- duction. Also, unlike Aircraft Hydro-Forming, Inc., 221 NLRB 581 (1975), cited by Respondent, the record herein fails to establish that, in the context of this case, the "Company time" rule was communicated or applied in such a way as to convey to the employees an intent to clearly permit union activity on the employees' own time in nonpublic areas of the dealership. Based upon the foregoing, I find Respondent violated Section 8(a)(1) of the Act by announcing and implement- ing a rule which prohibits employees from engaging in union activity or otherwise talking about the Union during nonworking time in nonpublic areas of Respon- dent's dealership. 8 4. Filippi allegedly stated Respondent "would cancel certain bonuses paid to the salespersons if the Union came in" (complaint, par. 9(d)). 7 Although rules which prohibit employee union-related conversation during "Company time," as the rule herein does, are generally presump- tively invalid, an exception to this policy is made in the case of retail stores, which, because of the nature of their business, may prohibit union solicitation, even during breaks and lunch periods, in areas where cus- tomers are likely to be present. See Marriott Corporation (Children's Inn), 223 NLRB 978 (1976). However, the instant ban on union-related conver- sations was not limited to the customer or sales area of the dealership. Therefore, Reapondent's rule against talking about the Union dunng "Company time" or "Filippi's time" is overly broad and invalid because it appears to include within its prohibitions any union activity on the em- ployees' own time in nonpublic areas of the dealership. a The fact that prior to August 12 Filippi periodically informed the employees they could not discuss nonbusiness related matters on "Com- pany time" or on "his time" is no defense to the violation herein. This merely establishes that, when Filippi on August 12 announced the limita- tion against discussing the Union on "Company time." he was not insti- tuting a rule which discriminated against union activity. However. the rule itself, as discussed supra, is invalid on its face. In support of this allegation the General Counsel relies on the testimony of Sales Manager Brum and salesper- sons Quilice, Flores, Taylor, and Kane. Quilice gave different descriptions of Fillippi's remarks about employees' bonuses. First, she testified that Filippi said that "if the Union came in, [the employees] would lose [their] benefits and spiffs."9 Then she testified that Filippi said that employees who worked in "union houses" did not receive spiffs. And she later testified that Filippi "just said that we could lose a lot of the benefits that we have." On cross-examination Quilice admitted that she understood from Filippi's words that he was comparing the benefits of employees employed by auto- mobile dealerships with union contracts with the benefits paid employees by Respondent. Flores testified Filippi stated "[I]f the union did come in that [Respondent] would save more money-would make more money, because we could cut off all the spiffs and cut off the extra little bonuses we have." Brum testified Filippi stated that with the Union "the spiffs and that sort of thing could possibly be lost to the salesmen." Taylor testified that Filippi's comments about employ- ees' bonuses were not expressed at the August 12 meet- ing, but at a later meeting which took place prior to the September 26 representation election. He testified that at this meeting Filippi told the employees that if the Union came in it would not cost the dealership more money be- cause Respondent would not have to pay the employees certain benefits they were currently receiving. Taylor later changed his description of Filippi's remarks, now testifying that Filippi stated that "some of the things [Re- spondent] was doing for [the employees] at that time, would not have to be done under union rules" or that those things "were not in existence under union con- tracts." Kane testified that Filippi's statements about employ- ees' bonuses were not made at the August 12 meeting but at a later meeting held on a different date. She also testi- fied that at this later meeting Filippi stated that Respon- dent would not grant the employees spiffs if they contin- ued to discuss the Union or if the Union succeeded in getting in. As described above, only three of the five witnesses whose testimony the General Counsel relies on were able to remember Filippi's remarks about employees' bonuses which were expressed at the August 12 meeting. In es- sence these three-Quilice, Flores, and Brum-testified that Filippi expressly indicated that if the employees sup- ported the Union they could lose certain existing bonus payments. Respondent called six witnesses, Sales Man- ager Filippi and salespersons Boski, Derrick, Gelender, Gibbs, and Kaleal, each of whom in substance denied that Filippi on August 12 expressly threatened to cancel the employees' bonus payments. It is my opinion, based upon my observation of the witnesses when they testified about the August 12 meeting, that the several witnesses called by Respondent were more credible than either 9 The term "spiffs" refers to the several bonuses Respondent pays its salespersons for selling certain extra items, such as undercoating or a bur- gular alarm 857 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quilice, Flores, or Brum. Moreover, Quilice gave con- flicting testimony, and the testimony of Quilice, Flores, and Brum was not mutually corroborative. It is for this reason that I am of the opinion that in order to deter- mine what Filippi stated to the employees on August 12 about bonuses it is necessary to examine the testimony of Respondent's witnesses. Filippi testified that he described the various benefits of employment, including the employees' bonuses, which the employees received from Respondent and told the employees that he knew of no contract which the Union had with a dealership which included bonuses and that, in comparison with the benefits provided by a union con- tract, Respondent offered the employees the "better deal." Boski testified Filippi stated, "[I]f we get a union plan [referring to a union contract] in here, it's going to prob- ably be different from what we got" or "are working under at the present time." Also, Filippi stated "that some of the pay plans and the benefits might change under the Union plan [referring to a union contract]." Derrick testified that Filippi described the various em- ployment benefits currently being received by the sales- persons, i.e., retirement benefits, bonuses, etc., and stated they were superior to the benefits received by employees who worked under a union contract. Derrick further tes- tified that Filippi also said that with a union the employ- ees' existing benefits of employment "would have to be negotiated" and that "it would not cost [Respondent] as much money if the Union was in here because [Respon- dent], in fact, was paying better benefits than existed under any union contract." Gelender testified that Filippi described the employees' existing employment benefits, compared them with those granted employees who worked under a union contract, and told the employees that, "should the Union come in, all of our existing benefits would be up for negotiations." Gibbs testified Filippi compared the employment bene- fits enjoyed by employees who worked under the Union's standard collective-bargaining contract with those enjoyed by Respondent's salespersons and pointed out that the employment benefits enjoyed by Respon- dent's salespersons were superior to those enjoyed by the employees who worked under the Union's contract. On the subject of bonuses, sometimes called spiffs, Gibbs tes- tified, that Filippi stated that "the standard union con- tract did not basically offer that type of a program [re- ferring to spiffs], and [Respondent] would not necessarily have to pay [spiffs]" and that "it would cost [Respon- dent] less money if the Union was in [the dealership]." Kaleal testified that Filippi described the employment benefits enjoyed by salespersons employed by Respon- dent and compared them with those enjoyed by salesper- sons who worked under a union contract. Although the recollection of the several witnesses called by Respondent is not precisely the same, each wit- ness impressed me as reliable and trustworthy when testi- fying about Filippi's August 12 remarks pertaining to em- ployees' employment benefits, and I am of the view that a composite of their above-described testimony provides an accurate description of Filippi's August 12 statements about the employees' bonuses.' 0 A composite of their testimony establishes that on August 12 Filippi told the salespersons that, if the Union succeeded in organizing them, all of their existing employment benefits would be negotiable and that the negotiations would probably result in the loss of their bonuses because the Union's collective-bargaining contract with other dealerships did not include a provision providing for bonus payments. In view of Filippi's aforesaid statements, the question presented for decision is whether Filippi's statements were privileged under Section 8(c) of the Act as a non- coercive prediction of the consequences of unionization or whether the statement was reasonably calculated to be taken by the employees as a threatened loss of bonus benefits to be enacted unilaterally by Respondent as a re- prisal for the employees having supported the Union. In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969), the Supreme Court stated: [An employer's prediction about the consequences of unionization] must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . . in case of unionization. In the instant case the Union had given no indication that if it obtained bargaining rights it would propose that Respondent cease paying bonuses to its employees. Nor does the record otherwise establish that Filippi had any way of knowing what demands the Union might make concerning bonus payments. Respondent presented no evidence that dealerships with union contracts did not pay their salespersons bonuses similar to Respondent's or that the union contracts precluded the payment of such bonuses. Under these circumstances, Filippi's statement that collective bargaining would probably result in the loss of the employees' bonuses was not based on "objec- tive fact . . . as to demonstrably probable conse- quences"; accordingly, Respondent violated Section 8(a)(1) of the Act. In concluding that Filippi's statement violated Section 8(a)(l), I have considered Stumpf Motor Company, Inc., l cited by Respondent, where the Board, Member Fanning dissenting, held it was not illegal for an employer to warn his employees that collective bargaining would probably result in the loss of existing benefits of employ- ment, and where the employer prefaced this warning with the further statement that all benefits would be ne- gotiable if the union organized the employees. I do not believe that Stumpf Motor Company governs the disposi- tion of the instant situation. In Stumpf Motor Company the employer's remarks were expressed in a noncoercive setting so that the employees to whom they were ad- dressed could reasonably interpret them as indicating nothing more than the employer's description of the col- 'O The aforesaid testimony of the witnesses called by Respondent is not inconsistent, except in the case of Filippi's denial that he stated that the employees' existing benefits would have to be negotiated if the Union were successful. His testimony in this respect is contrary to the testimony of Derrick and Gelender, who impressed me as the more reliable wit- nesses on this point. " 208 NLRB 431 (1974). 858 ED CHANDLER FORD. INC. lective-bargaining process whereby existing benefits may be traded away for others. In the instant case Filippi's statement was communicated to the employees in the context of a meeting at which Filippi had adopted an an- tagonistic and angry demeanor toward the employees so as to impress upon them his extreme opposition to union representation and, in violation of the Act, conveyed the threat that management considered engaging in union ac- tivities and continued employment as incompatible. Also, Filippi illegally limited the employees' right to engage in union activity on Respondent's premises. In this context Filippi's statement that collective bargaining could result in the employees losing their bonuses was reasonably cal- culated to have been understood by the employees as a threatened loss of employment benefits to be enacted uni- laterally by Respondent as a reprisal for the employees having supported the Union. Therefore, I find that, in violation of Section 8(a)(1) of the Act, Filippi on August 12 threatened employees that Respondent would cancel their bonuses if they supported the Union. D. The Quota System "In mid- to late August 1978 . . . Fillippi . . . an- nounced Respondent's intention to implement a 10-car- per-month production quota for employees in order to discourage the support of the union" (complaint, par. 9(g)). Contrary to this allegation, the record overwhelmingly establishes that prior to the Union's organizational cam- paign Filippi frequently advised the salespersons person- ally and at sales meetings that Respondent expected them to sell at least 10 motor vehicles a month, which was the average number of vehicles sold by salespersons em- ployed by Ford Motor's dealerships located in Respon- dent's geographical area. I reject the testimony of sales- persons Kane, Quilice, and Taylor that it was only after the Union's campaign that Filippi threatened the sales- persons with discharge if they failed to sell 10 motor ve- hicles a month. Filippi credibly testified that he ex- pressed this threat at sales meetings prior to the union campaign in an effort to motivate the salespersons to sell more automobiles. Neither Kane, Quilice, nor Taylor was a credible witness. In terms of demeanor they were not impressive when they testified about this allegation. Also, Kane's and Taylor's testimony, in certain signifi- cant respects, is contrary to the record as a whole. 12 And Quilice's testimony, when viewed in its entirety, es- sentially corroborates Filippi's testimony that, at sales meetings prior to the Union's organizational campaign, Filippi stated that Respondent expected its salespersons to sell 10 cars a month or be terminated. 3 12 Kane's testimony, that before the union campaign Filippi did not threaten to discharge salespersons if they did not increase their produc- tion, is contrary to the testimony of the General Counsel's other wit- nesses, and Kane's and Taylor's testimony, that the salespersons were never previously advised by management that they were expected to sell 10 cars a month, is contrary to the testimony of the General Counsel's witness Quilice and Respondent's witnesses Derrick, Gibbs. Kaleal, Ge- lender, Filippi, and Ed Chandler. 13 Quilice admitted that at sales meetings prior to the union campaign Filippi consistently stated he wanted the salespersons to sell 10 cars a month and at the same time also stated that salespersons would be fired if they did not increase their production. Based upon the foregoing, I shall recommend that this allegation be dismissed. E. The Profit-Sharing Plan "In late August or early to mid-September 1978 . . . Filippi . . . announced and implemented an employee profit-sharing plan in order to discourage employee sup- port of the Union" (complaint, par. 9(h)). The evidence pertinent to this allegation follows. In July 1975, Respondent commenced to operate the dealer- ship in partnership with the Ford Motor Company. It was understood that Respondent would eventually pur- chase Ford's ownership interest. It was the intent of Ed Chandler, Respondent's president, to institute a profit- sharing program for his employees as soon as Respon- dent purchased Ford's ownership interest. On or about May 31, 1978, Respondent purchased Ford's ownership interest. Previously, at sales meetings, Respondent's man- agement told the employees that, when Respondent pur- chased Ford's interest and became the sole owner, Re- spondent would institute an employee profit-sharing plan. Also during this period, new employees during their em- ployment interviews were informed by management that one of the employment benefits Respondent offered to its employees was an employees' profit-sharing program which was to be instituted in the future. In summation, the record establishes that prior to the union campaign Respondent had decided to institute a profit-sharing plan for its employees as soon as it purchased Ford's owner- ship interest, that Respondent notified its employees of this decision, and that the employees, as employee Kaleal testified, "were just waiting for [Respondent} to buy out [Ford] and to implement the profit sharing program." In June 1978, soon after Respondent purchased Ford's ownership interest and became sole owner of the dealer- ship, Respondent's president, Ed Chandler, as he had promised the employees, took steps to institute a profit- sharing program. He compared and evaluated several different profit-sharing programs and in June arranged to meet on August 25 with Bob Ewings of the National Automobile Dealers Association to discuss the profit- sharing plan sponsored by that organization. 4 Chandler met with Ewings as scheduled on August 25, at which time Chandler and his accountants evaluated Ewings' profit-sharing plan and decided to purchase this plan. The profit-sharing plan was not implemented until Janu- ary 1979 inasmuch as prior to its implementation Internal Revenue Service approval was necessary. The sole evidence that representatives of Respondent spoke to the employees about the profit-sharing plan during the Union's organizational campaign is as follows. Quilice, the General Counsel's witness, testified that, at a meeting held between August 12 and the date of the September 26 representation election, Filippi told the salespersons that Chandler "for quite some time" had been working on a profit-sharing plan and "it was all done." Quilice did not place this statement in any kind of a context. 14 Ewings, whose office is located in Washington. DC, was not scheduled to visit California until August 1978 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor, the General Counsel's witness, testified that either before or after the September 26 representation election Filippi told the salespersons that "there has been some general talk about profit sharing and we are work- ing on that, but we cannot discuss it at this time." Taylor did not place this statement in any kind of a context. Derrick, Respondent's witness, testified that, during the Union's organizational campaign, Filippi stated Respon- dent had purchased Ford's ownership interest and was all set to implement the employees' profit-sharing pro- gram. Derrick did not place this statement in any kind of a context, nor did he say whether Filippi spoke to him personally or at a meeting. Kaleal, Respondent's witness, testified that at the August 12 meeting Filippi "mentioned the profit sharing program as one of the things that [Respondent] offers [its] salespersons" and told the employees that Respon- dent was in the process of implementing it. 15 Based upon the foregoing, I find that Respondent, prior to the Union's organizational campaign, decided to institute a profit-sharing program for its employees and, prior to the Union's campaign, communicated this deci- sion to its employees and that thereafter during the normal course of business implemented this decision by instituting a profit-sharing program for its employees. Given these circumstances, I am of the opinion that Re- spondent's remarks expressed during the Union's cam- paign, that Respondent was in the process of instituting the profit-sharing plan which it had previously promised the employees, do not constitute an unfair labor practice. Therefore, I shall recommend that this allegation be dis- missed. F. The Voter Eligibility List "Respondent by its agents willfully placed ineligible employees on the voter eligibility list in order to defeat the union in the board conducted election" (Complaint, par. 9(i)). I. The evidence 6 On August 30 at or about 4 p.m., Sales Manager Lanny Brum interviewed job applicant Randal Lane. The interview, which lasted for approximately 1 hour, was mainly devoted to a discussion of Lane's sales expe- rience. During the interview Lane asked whether Re- spondent operated as a "union house." Brum answered "no," but advised Lane that the Union had filed a peti- tion with the Board for a representation election. Lane indicated he would not work for a "union house." Brum stated he doubted whether the Union would be voted in. Previously, on August 30, Lane had completed an em- ployment application and submitted it to Brum. In the ' The complaint does not allege that Filippi's announcement of the profit-sharing plan was made at the August 12 meeting; rather, it alleges that Filippi spoke about this subject "in late August or early to mid-Sep- tember." Of the II witnesses who testified about the August 12 meeting, only Kaleal testified that Filippi brought up the subject of profit sharing at that meeting. Under the circumstances, I am persuaded that Kaleal was mistaken when he placed Filippi's remarks about profit sharing as having been expressed at the August 12 meeting. i' The only witness to testify concerning this allegation was Sales Manager Lanny Brum His testimony is uncontradicted. part of the application which asked, "[I]f hired, on what date will you be available to start work?" Lane wrote, "September 1, 1978." Likewise, when Brum during the interview asked when Lane could start work, Lane an- swered he could not start work until September 1, 1978.17 At the conclusion of the interview Brum wrote on Lane's employment application that he thought Lane was "acceptable for employment" and wrote the follow- ing evaluation: "[Lane] presents self well-knowledge- able in all areas of sales & lease. Good experience-atti- tude good-should be good, aggressive addition to sales staff." Later, on August 30, Brum gave Lane's employment application to General Sales Manager Viglione and ad- vised Viglione about Lane's sales experience and that Lane had stated he did not want to work for a "union house." On August 31, representatives of Respondent and the Union signed an election agreement in Case 32-RC-446 which on September I was approved by the Board's Re- gional Director for Region 32. The agreement provided that on September 26 a representation election would be conducted by the Board in a unit comprised of all of Re- spondent's salespersons. It also stated at paragraph 10 that the payroll period for voting eligibility was the pay- roll period ending August 31 and further stated at para- graph 2 that "the eligible voters shall be those employees included within the unit . . who were employed during the [aforesaid] payroll period." On August 31, Viglione instructed Brum to hire Lane. He told Brum to telephone Lane and have him come to the dealership and sign the necessary papers. The same day at or about noontime, Brum telephoned Lane and advised him that he had a job with Respondent and asked him to come to the dealership that day to fill out the necessary papers and to pick up his demonstrator 8 and to start work. Lane stated he was unable to start work until September 1. Brum stated that the eligibility date for voting in the union election had been established and that it was August 31. Lane stated he wanted to be eligible to vote, so he would come to the dealership to fill out the paperwork associated with his employment, but could not come until later that afternoon or early that evening as he was in the process of moving his per- sonal belongings into a new home. At the conclusion of this telephone conversation Brum took Lane's employ- ment application and in the section reserved for manage- ment's comments, in the space entitled "starting date," Brum wrote "9/1/78." On August 31, after his telephone conversation with Lane, Brum told Viglione that Lane was not able to start '7 I have considered that, in the affidavit which he furnished the Board, Brum stated that on August 30 Lane indicated that in order to vote against the Union he would start work immediately. Brum testified that the affidavit in this respect was not correct and that Lane in fact stated he could not start work until September I. In disclaiming the de- scription set forth in his affidavit, Brum impressed me as a credible wit- ness. Moreover, his testimony is corroborated by the act that on August 30, when Lane completed his application for employment, Lane wrote that he was not available to start work until September . x Each salesperson employed by Respondent is furnished with an automobile for his personal use, referred to as a demonstrator 860 ED CHANDLER FORD, INC. work until September , but would come to the dealer- ship later that day to sign the necessary papers associated with his employment; whereupon Brum and Viglione agreed that Brum would indicate in Respondent's per- sonnel records that Lane started work August 31 and also agreed that Respondent would pay Lane for August 31 to show that he was employed on that date and that they would engage in this conduct in order that Lane would be eligible to vote in the scheduled representation election, as Respondent wanted his "no vote." Accord- ingly, Drum changed that part of Lane's employment ap- plication where Brum had earlier indicated that Lane's "starting date" was "9/1/78" to read "8/31/78." Also, Brum thereafter changed the "employment date" of "9/ 1/78" he had written in Lane's "confidential employee history" record maintained by Respondent to read "8/ 31/78." On August 31, Lane visited the dealership at 6 p.m., at which time he filled out his employment papers and was assigned a demonstrator automobile for his personal use, but did not perform any work that day.19 He simply did the paperwork and left. He started work the next day. Respondent's payroll period ended August 31 and the record reflects that Respondent issued a payroll check to Lane dated August 31 for the sum of $26.54. As indicat- ed, supra, Lane performed no work for Respondent during that payroll period. Respondent presented no tes- timony to explain the reason for the issuance of this check. By letter to the Board's Regional Office dated Septem- ber 8, Respondent included Lane's name among the names of employees eligible to vote in the representation election scheduled for September 26. 2. Conclusions It is settled that, in order to be eligible to vote in a representation election, an employee must have worked in the designated bargaining unit on the established eligi- bility date and on the date of the election. N.L.R.B. v. Family Heritage Home-Beaver Dam, Inc., 491 F.2d 347, 349 (7th Cir. 1973); N.L.RB. v. Adrian Belt Company, 578 F.2d 1304 (9th Cir. 1978); Ra-Rich Manufacturing Corporation, 120 NLRB 1444, 1447 (1958). In determin- ing eligibility, the Board looks first to see if the employ- ee in question was actually working in the bargaining unit on the eligibility date. Physical presence on the eli- gibility date is not necessarily required, however, as the Board will allow employees to vote who have already worked in the unit but who are absent on the eligibility date for a reason consistent with their continued employ- ment, such as illness, vacation, or temporary layoff. See Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973). On the other hand, employees who were hired prior to the eligibility date, but did not begin work until after that date, are deemed ineligible to vote. N.L.R.B. v. Family Heritage House. Inc., supra at 349-350; N.L.R.B. v. Dalton Sheet Metal Co., Inc., 472 F.2d 257, 258 (5th Cir. 1973); Ra-Rich Manufacturing Co., supra at 1447.20 19 On August 31 the dealership remained open until approximately p.m. 20 The purpose of this rule is to make the identity of eligible oters quickly and easily ascertainable While the Board recognizes that newly Applying these principles, it is plain that employee Lane was not eligible to vote in the scheduled represen- tation election. The election agreement entered into by Respondent stated that eligible voters were those em- ployees who "were employed" during the payroll period ending August 31. Lane was hired August 31 but did not start his employment until September 1.2 However, the question presented for decision is not whether Lane was an eligible voter but is whether, when Respondent in- cluded his name on the voter eligibility list, it knew he was ineligible to vote yet deliberately placed his name on the eligibility list because it believed he would cast a ballot against union representation.2 2 I think this is such a case. Lane did not start his employment until Septem- ber 1, yet, as described in detail supra, Respondent falsi- fied Lane's personnel records to show that he started work August 31 rather than September I and issued him a paycheck for August 31, even though he performed no work that day. These circumstances, when viewed in the context of Respondent's hostility toward union represen- tation, its knowledge that Lane intended to vote against union representation, and the evidence which indicates that Respondent falsified Lane's personnel records to take advantage of his "no vote," persuade me that, as al- leged in the amended complaint, Respondent willfully placed the name of Lane, who was not eligible to vote, on the voter eligibility list furnished the Board in order to defeat the Union in the representation election sched- uled to be conducted by the Board in Case 32-RC-446. I further find that by engaging in this conduct Respondent violated Section 8(a)(l) of the Act. hired employees, such as Lane, have a true and vital interest in the out- come of a representation election, "it is incumbent upon the Board to es- tablish certain rules for the orderly conduct of its elections and insure a certain degree of stability in the election process." Roy Lotspeich Publish- ing Co.. supra at 517 Thus, although the Board's application of the eligi- bility date rule may prevent employees from voting who have a true in- terest in the outcome of a representation election, this result is outweighed by the necessity of fair and consistent rules for the orderly conduct of elections. See Cone Brothers Contracting Company v. N.L.R.B., 235 F 2d 37, 40 (5th Cir. 1956), cer. denied 352 U S. 916, citing N.L.R.B. v A. J To~*r Company, 329 U.S 324, 330-331 (1946). 21 The record, as described supra, overwhelmingly establishes that Lane at the time of his August 30 employment interview and on August 31, the date he was hired, informed Respondent that he could not start work until September I and in fact did not start work until September I The only evidence presented by Respondent that Lane started work August 31 is the check for $26.54 issued to Lane dated August 31 Re- spondent failed to offer any explanation for this check and, as described supra, the August 31 conversation between Sales Managers Brum and Viglione reveals that the check was issued as part of a scheme to make it seem as if Lane had worked on August 31 so that he would be eligible to vote in the election. 22 I reject the General Counsel's further contention that the record shows that this is a situation where an employer has hired an employee because it thinks the employee will vote against union representation in a scheduled Board election Ilere the evidence is insufficient to provse that on August 31. during the normal course of business, Respondent would lot hase hired l.ane for legitimate business reasons 861 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Alleged Discharge of Flores Because of His Union Activities 1. The evidence a. Flores' union activities On August I , Flores signed a union authorization card and solicited another employee to sign a card. This is the extent of his union activities. Flores did not speak with anyone from management about his union senti- ments or activities. Lanny Brum, Respondent's former sales manager, tes- tified for the General Counsel that Respondent's manage- ment thought Flores favored union representation and was a union organizer. Specifically, Brum testified that after August 11, the date the Union filed its representa- tion petition, Brum and Respondent's president, Ed Chandler, and General Sales Managers Filippi and Vig- lione on several occasions took a roster of Respondent's salespersons and indicated which ones they thought were for and against union representation. Brum also testified that Chandler, Filippi, Viglione, and himself all stated that they thought Flores was one of those salespersons who would vote for the Union and that President Chan- dler indicated he thought Flores was one of the Union's organizers. Brum, Filippi, and Viglione told Chandler that they thought he was correct in thinking that Flores was a union organizer.2 3 In presenting the aforesaid tes- timony Brum impressed me as a sincere and reliable wit- ness. Chandler, Viglione, and Filippi testified for Respon- dent. Chandler, however, did not deny Brum's testimony. Viglione testified that Brum, Filippi, and himself on sev- eral occasions discussed the union sentiments of the sales- persons. He testified that "it was more like a guessing game, who was pro and con." He did not deny that Chandler, Brum, Filippi, and himself expressed the belief at these discussions that Flores was prounion, nor did he deny that they agreed that Flores was one of the Union's organizers. Viglione's further testimony, that he paid "very little attention" to what was said about the union sentiments of the various employees at these discussions because he did not care who was for or against union representation, was not given in a convincing manner and does not ring true in view of Respondent's strong feelings against union representation which it expressed to its employees. Filippi testified that "during the month or two before the Union election" Filippi, Chandler, Brum, and Viglione, on two or three occasions, dis- cussed the union sentiments of Respondent's salespersons and discussed who were the Union's organizers. He fur- ther testified that at these discussions they used a roster of the salespersons employed by Respondent and dis- cussed which salespersons they thought were for and against the Union. When asked whether Flores was named as being prounion, Filippi testified, "I don't re- member but we might have. I don't remember which side [Flores] was on. I don't think [Flores] had very much interest in it." This equivocal answer was not 23 Brum testified that management also unanimously agreed that sales- persons Quilice and Vojir were the other union organizers. given in a persuasive manner. Nor did Filippi impress me in bearing and demeanor when he further testified that he was not able to "remember anybody ever saying [at the aforesaid management discussions] that they really thought [Flores] was like a big ring leader." As I have indicated supra, Brum, when he testified that the several members of management stated they thought Flores was a union sympathizer and a union or- ganizer, impressed me as a credible witness,2 4 whereas Viglione and Filippi did not appear to be credible wit- nessses when they testified concerning this subject matter. Also, for some unexplained reason, Respondent did not question President Chandler about this subject. Therefore, I find that when Respondent discharged Flores it thought he would vote in favor of union repre- sentation and was a union organizer.2 5 b. Flores' discharge Flores was employed as a salesperson by Respondent for 20 months, from December 30, 1976, until his August 31, 1978, discharge. General Sales Managers Filippi and Viglione were his supervisors. During Flores' first 17 months of employment they regarded him as an out- standing salesperson. In 1977 he was Respondent's top producer for 2 months. 2 6 And during the first 5 months of 1978, aside from February when he was one of the dealership's lowest producers, Flores, among comparable salespersons, was one of Respondent's top producers: 2 7 First in March, second in April and May, and fourth in January. In approximately May, Flores purchased a tow truck business and personally operated it himself. He wore a "beeper" device at work which would "beep" whenever his answering service had a message for him concerning 24 In crediting rum's testimony. I have considered that Respondent discharged him before he furnished the Government with an affidavit in this case. Also I have considered that I did not find he was a credible witness in connection with the August 12 meeting. Nonetheless, am convinced, based on my observation of the witnesses, that in this instance he was a more credible witness than either Filippi or Viglione. 25 I reject Respondent's contention that management's discussions, where Respondent concluded that Flores was prounion, were held after Flores' discharge. The entire tenor of the testimony of Brum, Viglione, and Filippi was that during these discussions management was using a roster of salespersons. It seems unlikely that Flores' name would have been included on such a roster after his discharge. Moreover, after Flores' discharge, it made little sense for management to discuss Flores' union sentiments or whether he would vote for the Union. In this regard, I note that there is no evidence that Respondent was placed on notice that the Union would contend that Flores was eligible to vote in the Sep- tember 26 election until September 25, when Respondent by registered mail received a copy of the charge filed in Case 32-CA-1244 which al- leged that Flores' discharge was illegally motivated. 26 The salespersons are paid a commission for each motor vehicle sold. The commission is a certain percentage of the employer's profit on each sale. Respondent determines its salespersons' productivity by using their monthly gross earnings which are referred to in the record as the sales- persons' "monthly gross income." 27 In comparing Flores' productivity with the productivity of other salespersons, I have used G.C Exh. 6, but excluded part-time salesper- sons Acree and Kim Choi; fleet salespersons Medeiros and Vieira, who normally earn less than Flores due to the nature of their work; truck salespersons Steve Chandler, Sam Choi, and Purdy, who normally earn more than Flores due to the nature of their work: and salespersons Ro- driguez and Steinberg, who normally earn more than Flores due to the nature of their work. 862 El) CHANDLER FORD, INC. his tow truck business. In June, July, and August, Flores' productivity dropped drastically. During this period, among the 19 comparable salespersons employed by Re- spondent, only three, Wemhaner, Kane, and Maresca, had worse sales records, and Kane and Maresca were in- experienced, as they were hired in May. When Respondent discovered Flores was operating a tow truck business, President Chandler and General Sales Manager Filippi were skeptical that Flores would be able to operate the tow truck business and at the same time be a productive salesperson. In May they expressed their doubts to Flores, who indicated that he did not intend to operate the tow truck business himself but had hired another person to do this. However, Flores contin- ued to wear the "beeper" device at work and in early July Filippi and Chandler spoke to him again about this matter. Chandler specifically told Flores that he thought the tow truck business was interfering with his produc- tion. Flores replied that the person who had been operat- ing the tow truck business had quit but Flores intended to remedy the situation immediately or sell the business. Flores continued to wear the "beeper" for the remainder of his employment.2 8 In June and July, Filippi once or twice criticized Flores for not returning to the dealership after lunch. Flores, after notifying Filippi he was leaving the dealer- ship to have lunch with a customer, never returned, and once advised Filippi he was unable to return to work be- cause he had too much to drink. And, on August 15, when Filippi gave Flores his monthly "draw" check, Fi- lippi complained that Flores had sold very few auto- mobiles in July and that his August record was not any better and warned Flores that, if he did not make a 100 percent "turnaround," he would be terminated. Flores replied that he would do what he could. 2 9 Early in July, Viglione told Flores that he thought Flores' tow truck business had affected his sales which had dropped almost 50 percent, and also complained that Flores was leaving the premises during working time to visit the Pepper Tree Bar without permission. Flores stated that his reason for visiting the Pepper Tree during working time was that he was doing business with cus- tomers. Viglione told Flores that, if this were true, it was 2s There is a conflict between Flores' testimony and Chandler's and Filippi's concerning their conversations about Flores' tow truck business and the "beeper" device. I have credited Chandler's and Filippi's testimo- ny because they impressed me as more credible witnesses. Likewise, I credit their testimony that Flores continued to wear the "beeper" for the remainder of his employment. 29 Early in August Flores was absent from work for se'eral consecu- tive days. supposedly due to sickness In evaluating Flores' production. Filippi testified he did not take this absence into account as a mitigating factor because he did not believe Flores was sick. The record establishes that, on the first day Flores was absent, he phoned the dealership and told the telephone operator to tell management he as sick Flores did not indicate he would be absent for more than that day, yet failed to tele- phone the dealership thereafter to notify management that he was still sick. Filippi on several occasions during Flores' absence phoned Flores' home to determine why he was absent, but no one answered the phone. When Flores returned to work, Filippi confronted Flores with the fact that he was not home when Filippi telephoned Flores replied that "per- haps" he was visiting the doctor's office. Under the circumstances in- cluding the fact that Filippi knew that Flores was operating his own busi- ness, it was not unreasonable for Filippi to disbelieve Flores' story that he was sick, but instead to believe that Flores was really "skylarking." and that he was operating his on business all right, but he did not believe Flores, as he thought Flores did not care about selling cars but was just using the dealership as a place from which to operate his tow truck business.3 0 Thereafter, early in August, prior to the Union's organizational campaign, Viglione again criticized Flores on account of his production. He warned Flores that he would have to terminate him if his production did not improve. And on August 15 Viglione again criticized Flores for his poor production and also expressed displeasure that Flores had left the dealership for several hours without checking first with Viglione. Flores stated he was absent because he was selling auto- mobiles. Viglione stated he did not believe him because his sales record belied his story. Viglione warned Flores that if his sales record did not improve he would have to terminate him." On or about August 29, Filippi and Viglione discussed Flores' employment status and decided that he should be terminated August 31, which was the end of the payroll period. On August 31, when Viglione handed Flores his paycheck, he told him that he was terminated because of a "lack of production." When Flores protested that this could not be true since he had earned more money in the 8 months he had worked in 1978 than he had earned in 1977,32 Viglione replied, "[T]his is all I can say." The decision to discharge Flores was jointly reached by Filippi and Viglione. Although they testified that they were critical of Flores because of his seeming disinterest in his work, his absences from the dealership during working hours, and his operation of the tow truck com- pany, they testified that, but for Flores' poor production during June, July, and August, he would not have been discharged despite their other criticisms of him. This tes- timony is corroborated by the fact that, on August 31, Viglione did not give Flores any reason for his discharge other than a lack of production, even though Flores ve- hemently protested the accuracy of this reason. 2. Conclusions The record establishes that Respondent has a difficult time hiring good salespersons and that until June 1978 Respondent had regarded Flores, who had been in its employ for 17 months, as an outstanding salesperson; that Respondent, which was extremely hostile about union representation, thought Flores was one of the Union's organizers; and that Respondent, shortly after the Union had petitioned for an election, discharged Flores for poor production, even though Flores was well on his way to bettering his 1977 sales record which was :'o The record establishes that salespersons spend a substantial part of their working time away from the dealership talking to customers in res- taurants, bars, etc :' There is a sharp conflict about whether Filippl and Viglione ever spoke critically to Flores about his production or work performance Flores generally denied this, whereas Viglione and Filippi testified in detail about several conversations they had with Flores in which, as de- scribed supra, they were critical of his production and work performance. I have credited their testimony because they impressed me as more credi- ble , ittnesses. In addition, I reject Flores' testimony that in July 1978, during the period his production had plummeted. Vighione complimented him for doing a good job. :' I'his a., riot rue 863 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better than satisfactory3 3 and in the 8 months of his em- ployment in 1978 had compiled a better sales record than all but 3 of the 14 salespersons who worked during the same period of time doing comparable saleswork. 3 4 These circumstances, taken together, establish a prima facie case that Respondent discharged Flores because it thought he was a union organizer. Although the General Counsel has proven a prima facie case, I am persuaded that Respondent met its burden of going forward with sufficient evidence to rebut the General Counsel's case and establish that Flores' discharge was motivated by legitimate business considerations. The record establishes that, prior to the Union's organizational campaign, Flores went into a tow truck business and personally operated this business. Re- spondent's representatives immediately expressed their concern to Flores that the tow truck business would in- terfere with his saleswork for Respondent. Their fears proved to be valid because Flores' sales production in June dropped precipitously, when compared to the pre- vious 3 months, and dropped even further in July. During this period Respondent's representatives again spoke to Flores about his work, stating that Respondent thought Flores was spending his working hours operat- ing his tow truck business, which had resulted in a dras- tic drop in his production, and General Sales Manager Viglione expressly threatened to discharge Flores if his production did not improve. All of the aforesaid events took place prior to the Union's organizational campaign. In other words, prior to the Union's organizational cam- paign, Respondent had expressed its concern about Flores' production and had attributed the drastic drop in his production to the fact that he was operating a tow truck business which was interfering with his saleswork and threatened to discharge him if his sales production did not improve. Nonetheless, Flores continued to wear the "beeper" at work, thus indicating to Respondent he was still actively engaged in operating the tow truck business and, in August, his sales production declined for the third straight month.35 At this point Respondent dis- charged Flores. Considering these circumstances, I am not persuaded that the General Counsel has established by a preponderance of the evidence that Flores' drop in production during the period from June through August 33 In 1977, Flores' gross income was approximately S22,0X) whereas, in 1978 at the time of his discharge, after 8 months of employment, his gross income was $19,652. 3' Based on the gross income of those salespersons listed in G C. Exh. 6 who received paychecks in each of the first months of 1978, exclud- ing those whom the record established did not perform saleswork compa- rable to Flores; i.e., the nature of the work enabled them to earn more or made it difficult for them to earn as much money as Flores or they worked part time. 35 Although the record shows that the monthly gross income of the salespersons fluctuates, it is very rare for a salesperson with Flores' expe- rience to have such a precipitous and continuous drop in earnings over a period of 3 consecutive months. This circumstance lends credence to Re- spondent's belief that the decline in Flores' production was not simply fortuitous but was related to his operation of the tow truck business. I also note that, although Flores was absent from work for several days in August, Respondent, as described supra, reasonably believed that his ab- sence was not a bona fide one, but was caused by his operation of the tow truck company. was used by Respondent as a pretext to discharge Flores because Respondent thought he was a union organizer 3s Based upon the foregoing, I shall recommend that the allegation concerning Flores' discharge be dismissed in its entirety. H. The Alleged Refusal To Bargain Respondent admits that, as alleged in the complaint, "all salespersons employed by Respondent excluding all other employees" constitutes a bargaining unit appropri- ate for purposes of collective bargaining and that on August 11 and at all times thereafter Respondent has re- fused the Union's request that it bargain collectively with the Union as the salespersons' collective-bargaining rep- resentative. The General Counsel contends that on August 11, the date Respondent received the Union's bargaining demand and refused to bargain with the Union, there were 33 employees in the appropriate unit, of whom 18 had signed union authorization cards. Respondent does not dispute that the 33 employees named by the General Counsel were employed in the appropriate unit on August I 11 or that 18 of them, as contended by the Gen- eral Counsel, had signed union cards. Respondent takes the position that employees Acree, Choi (Kim), Duarte, Greene, and Scott, who were not listed by the General Counsel as being in the appropriate unit, were also em- ployed in the unit on August 11, and that, of the 18 em- ployees who signed union cards, the cards signed by em- ployees Caughman, Medeiros, and Rodreiguez were in- valid.37 An examination of the evidence pertinent to Re- spondent's contentions reveals the following: 1. The validity of the cards signed by Caughman, Rodriguez, and Medeiros a. Applicable principles The record shows that all of the authorization cards submitted by the General Counsel in support of the Union's claim of majority status contain clear and unam- biguous language indicating that the signers authorized the Union to represent them for the purpose of collective bargaining. Respondant takes the position that three of these cards, the ones signed by Medeiros, Caughman, and Rodriguez, are invalid because the totality of the cir- cumstances surrounding the signing of these cards is such as to add up to an assurance to the card signers that their cards would be used for no purpose other than to help get an election. In N.L.R.B. v. Gisssl Packing Co., Inc., 395 U.S. 575, the Supreme Court approved Board law in determining the validity of authorization cards, as set forth in Cum- berland Shoe Corporation, 144 NLRB 1268 (1963), and reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968). The Court described Board law in the following terms (395 U.S. at 584): I: I also note that there is no contention or evidence that the other employees, Quilice and Vojir, who Respondent thought were union orga- nizers were the victims of discrimination '" Respondent does not question the validity of an)y other authoriza- tion cards 864 ED CHANDLER FORD, INC. Under the Cumberland Shoe doctrine, if the card itself is unambiguous (ie., states on its face that the [card] signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purposes of obtaining an election ... With respect to employees who sign upon alleged mis- representations as to their purpose, the Court said, "[E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calcu- lated to direct the signer to disregard and forget the lan- guage above his signature." (395 U.S. at 606.) The Court cautioned the Board not to apply the Cumberland Shoe rule mechanically, and quoted with approval the Board's language in Levi Strauss, supra, that "it is not the use or nonuse of certain key or 'magic words' that is control- ling, but whether or not the totality of circumstances surrounding the card solicitation is such as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." (395 U.S. at fn. 27.) b. Clay Caughman's card On August 10 salesperson Caughman visited the Union's office and, after talking to Union Business Rep- resentative Richard Salvaressa about signing a union au- thorization card, signed a card. It is undisputed that Sal- varessa asked Caughman to read the card before signing it and that Caughman in fact read the card. Caughman, who is employed by Respondent, testified for Respondent about Salvaressa's statements pertaining to the purpose of the card. Caughman's version was not presented in a straightforward fashion; rather, it consists of a series of embellishments of prior testimony. The sub- stance of the bits and pieces of Caughman's testimony, when taken together, is that Salvaressa stated that the Union needed a majority of the employees to sign the cards in order for the Board to hold an election and as- sured Caughman that by signing the card he was not joining the Union, but was agreeing to have an election and could compare the Union's benefit program with the Company's and then make up his mind about whether he wanted union representation. Salvaressa testified he told Caughman that the card au- thorized the Union to represent the employees and that Salvaressa wanted Caughman to sign the card because, if there were a hearing, the Union would have to establish that a majority of the employees had signed cards and assured Caughman that Respondent would only be shown the card if there were such a hearing. Caughman did not impress me as a reliable witness. He gave the appearance of being very interested in trying to help Respondent's case than in the truth. Salvaressa's de- meanor was that of a sincere witness. Accordingly, I reject the statements attributed to Salvaressa by Caugh- man about the purpose of the card and, for this reason, find that Respondent did not prove that Caughman's card was invalid. c. Tom Rodriguez' card On August 11 salesperson Quilice successfully solicited Rodriguez to sign a union authorization card. Quilice told him that "the Union was trying to get in at Chan- dler Ford," and "everybody else was participating and that [Rodriguez] was one of the few that was left not signing cards." Quilice also stated that Rodriguez would be able to vote yes or no about union representation as there would be an election. Rodriguez stated he would sign the card. He took the card from Quilice, read it, and then signed it.3 8 Inasmuch as Rodriguez was not told that the card he signed would be used solely for the purpose of obtaining an election, and the totality of circumstances does not es- tablish that Quilice's statements amounted to an assur- ance that the card would be used for no purpose other than to get an election, I find that the card Rodriguez signed was a valid designation of the Union as collective- bargaining representative. See .V.L.R.B. v. Gissel Packing Co., Inc., supra at 584, fn. 5 (cards valid though employ- ees told that (I) card would be used to get an election and (2) employee could vote either way, even though employee signed the card). In concluding that Rodriguez' card was a valid one, I have considered Respondent's further contention that the card was tainted because it was obtained on the basis of a misrepresentation that everyone else had already signed cards. In this regard, the Board takes the position that "a showing, without more, of a misrepresentation as to the number of others who have signed is insufficient to in- validate a clear and unequivocal designation card signed by an employee." Marie Phillips, Inc., 178 NLRB 340 (1969), affd. sub nom. Local 153., International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B., 443 F.2d 667, 669 (D.C. Cir. 1970). In affirming the Board's ruling on this issue, the court stated, "such puffing (that] a majority of the workers had already signed authoriza- tion cards does not vitiate the cards unless the comments were a means of coercing employees to sign cards out of a fear of majority reprisal." Local 153, ILGWU v. N.L.R.B.. supra, at 669. Accord: N.L.R.B. v. Boyer Brothers, Inc., 448 F.2d 555, 562 (3d Cir. 1971). The Sixth Circuit also has upheld the validity of cards despite such misrepresentations where there is merely a showing that the misrepresentations were made and no objective evidence that they actually interfered with employee free choice. G & A Truck Line, Inc. v. N.L.R.B., 407 F.2d 120, 123 (6th Cir. 1969) (representations that "everyone else had signed" found insufficient to invalidate cards where there was no showing of interference with em- ployees' freedom of choice); N.L.R.B. v. Garner Auto- motive & Machine, Inc., 400 F.2d 10, 12 (6th Cir. 1968) (validity of cards upheld despite misrepresentations con- cerning number of other employees who had signed where there was no objective evidence that such state- ments induced additional employees to sign). Applying these principles, I find that Quilice's statement to Rodri- :' 1 h dc,icriptll ,of the circumstances % rroundilg the signing of Ro- drlglci' crd ms based pon his testimlmon QuilicC'\ restimony diflers in certrall aispcts: however, Rodriguez impressed m as the more credible u ilICsN 865 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guez that "everyone else was participating [referring to signing cards] and that [Rodriguez] was one of the few that was left not signing cards" is insufficient to invali- date Rodriguez' card. There is no evidence in the record which remotely suggests that the above representation by the card solicitor as to how many others had signed cards would tend to make Rodriguez unaware of the card's purpose or would coerce him into signing the card. Indeed, Rodriguez did not testify either directly or by implication that he signed the card because of the above representation and not because he wanted to au- thorize the Union as his bargaining representative. d. Hank Medeiros' card On August 11 salesperson Anthony Taylor successful- ly solicited Medeiros to sign a union authorization card.3 9 Taylor, while at work, gave Medeiros a union authorization card and asked him to read the card. Me- deiros took the card and walked to his office, which was in another building, where he filled out and signed the card, which he immediately returned to Taylor. One month before signing the union card, Medeiros, who is a former member of the Union and who at a time material to this case had been issued a membership with- drawal card, while at lunch, met Union Business Agent Ed Hill, who told Medeiros that the Union intended to circulate union authorization cards among Respondent's employees. Hill asked Madeiros to sign one of the cards when they were circulated. Hill explained to Medeiros that the only purpose of the card was to hold an elec- tion.4 0 Medeiros testified that on August II he filled out and signed the union authorization card without reading the card because "of the urgency of getting it done" inas- much as it was during working hours and because there was no need for him to read the card, as Union Business Agent Hill had already explained to him that the purpose of the card was "only" to have an election. Having examined the totality of the circumstances sur- rounding the signing of Medeiros' card, I am persuaded that the record establishes that Medeiros signed the card without reading it because Union Business Agent Hill had assured him that the only purpose of the card was to hold an election, and the union adherent who solicited Medeiros to sign the card said nothing which was calcu- lated to cause Medeiros to disregard or forget Hill's statement. Therefore, I find that the card signed by Me- deiros was not a valid designation of the Union as collec- tive-bargaining representative. Cf. Keystone Pretzel Bakery, Inc., 242 NLRB 492 (1979), where the Board stated "one factor which the Board has considered in the 'totality of circumstances' is whether the employees read the cards. Thus, where an employee was told that his card would be used only to get an election, affirmative 30 I reject Medeiros' testimony that, even though Taylor witnessed his card, Taylor did not personally give him the card, but that Medeiros took one of several cards which were on a desk in an office Taylor, whose signature appears on the card in the space entitled "witnessed by." testified that he personally gave the card to Medeiros aylor im- pressed me as a more reliable witness than Medeiros. 4o The description of Hill's conversation with Medeiros is based upon Medeiros' undenied testimony Hill did not testify. evidence that the employee did not read the card sup- ported the conclusion that the card was signed in reli- ance on the misrepresentation as to its only purpose." 2. The status of Harold Acree a. The evidence Respondent has employed Acree since 1975 as a part- time salesperson. He works full time for the telephone company. Respondent does not schedule Acree's work. It allows him to determine his own working hours, number of hours, and schedule. Unlike the other sales- persons, Acree is not required to work a minimum number of hours each week. General Sales Manager Fi- lippi testified Acree "works more or less when he wants to." Respondent's president, Ed Chandler, testified "there is no way that I could . . . make an estimate of the hours that Acree actually puts in selling his cars, whether it is 5 hours or 50 hours in one given week . . . there is no way to tell because he is working outside." Almost all of Respondent's salespersons speak to cus- tomers either at the dealership or away from the dealer- ship at homes, restaurants, bars, etc. At least 50 percent of a salesperson's sales are made by speaking to custom- ers away from the dealership. In fact, three of the sales- persons who sell to businesses spend almost all of their time away from the dealership. When salespersons solicit business at the dealership's showroom, they are working in accord with a work schedule pursuant to which they have been assigned certain working hours during which they must be present on the showroom floor.4 ' Acree is never scheduled for floor duty because he conducts almost all of his business away from the dealership.4 2 He only visits the dealership when he is in the process of selling an automobile to a customer, at which time he brings the customer into the dealership to consummate the sale. Acree may visit the dealership on several con- secutive days with customers but, on the other hand, may not visit the dealership for several consecutive weeks. During the approximately 4 years Acree has been em- ployed as a part-time salesperson, he has sold an average of four to five automobiles a month. The full-time sales- persons have a sales quota of 10 automobiles a month. In 1978, Acree earned approximately $8,400 selling cars for Respondent, which is more than 50 percent of the 1978 earnings of full-time salespersons Vojir and Vieira. Also during several of the months in 1978, Acree earned more money selling automobiles for Respondent than several full-time salespersons. But during 2 months, January and July, he had no earnings. Like the other salespersons included in the appropriate bargaining unit, Acree is supervised by the sales manag- ers, has a demonstrator auto, has an office at the dealer- ship, and is compensated the same way as the other salespersons. Like the other salespersons, when Acree 4 When they want to leave he dealership during working hours t( solicit business or niet a cliet, they must rct permission from a sales mnanager 4Z The Ihree slcespersons who handle Respondent's commercial cus- toncrs, upra, hikesisc are not assigned floor duty 866 ED CHANDLER FORD, INC. sells an automobile the sale must be approved by a sales manager. Unlike the other salespersons, Acree is not required to attend sales meetings and does not receive a sum of money each month which he can use as a draw against his monthly earnings. There is no indication in the record whether or not he receives the same fringe bene- fits as the other salespersons. b. Conclusions Acree's status as a bargaining unit employee depends on whether he is sufficiently concerned with the unit's terms and conditions of employment so as to establish a community of interest with the other unit employees. Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F.2d 933, 944-945 (5th Cir. 1959). Part-time employees, such as Acree, are included in a unit of similarly situated full-time employees and are classified as "regular" part- time workers when the requisite community of interest is shown. Indianapolis Glove Company, Inc. v. N.L.R.B., 400 F.2d 363, 367 (6th Cir. 1968), and cases cited therein. Westchester Plastics of Ohio. Inc. v. N.L.R.B., 401 F.2d 903, 907 (6th Cir. 1968). Some of the criteria used to de- termine whether a part-time employee should be includ- ed within a particular unit are whether a part-time em- ployee works at regularly assigned hours a substantial number of hours during an appropriate calendar period, performs duties similar to those of full-time employees, and shares the same supervision, working conditions, wages, and fringe benefits. 43 Westchester Plastics of Ohio. Inc. v. N.L.R.B., supra at 907; Indianapolis Glove Compa- ny v. N.L.R.B., supra at 367; Farmers Insurance Group, et al., 143 NLRB 240, 244-245 (1963). Other full-time em- ployment does not relegate part-time workers to the cat- egory of a casual employee with no interest in the unit. Westchester Plastics of Ohio, Inc. v. N.L.R.B., supra at 907. Further, a part-time employee need not be treated exactly the same as a full-time employee in order to be included in a unit. For the part-time employee's commu- nity of interest with other, full-time employees is estab- lished once he or she is "sufficiently" concerned with the unit's terms and conditions of employment. 4 4 Indianapo- lis Glove Company v. N.L.R.B., supra at 367-369; Shore- line Enterprises of America v. NL.R.B., supra at 944-945; Westchester Plastics of Ohio, Inc. v. N.L.R.B.. supra at 907. What emerges from the decided cases, in my opin- ion, as the key objective factor in evaluating part-time employees' sufficiency of concern with a unit's terms and conditions of employment is whether the part-time em- ployee works on a regular basis and performs essentially the same work as the unit employee. Westchester Plastics of Ohio, Inc. v. N.L.R.B., supra at 907; 4 5 Bob's Ambu- lance Service, 178 NLRB 1, 2 (1969). 43 Also relevant is the amount of work contact a part-time employee has with the full-timers. H W Elson Bottling Company. 155 NLRB 714, 724 (1965); Holiday Inns of.4merica, Inc d/b/a Holiday Inn o Oak Ridge. Tennessee. 176 NLRB 939. 941 (19t69) 44 This "sufficiency" test merely recognies that a part-time employee. by the very nature of his part-time status, cannot he expected to have work status identical to that of a full-time worker. 45 In Westchte,'r Plasics, the part-time employee worked an irregular schedule of hours in order to correlate his time at Westchester Plastics with the time demands or his full-time joh In addition. the employee In the instant case the record reveals a regular and continuing pattern of part-time employment by Acree. At the commencement of the hearing in this case, Acree had been employed by Respondent as a part-time sales- person for at least 4 years and, during this period, sold an average of four to five cars a month. This is approxi- mately one-half of the number of cars Respondent ex- pects its full-time salespersons to sell. Respondent's re- cords of its salespersons' earnings for 1978, the only year for which earnings records were introduced into evi- dence, show that in 1978 Acree earned approximately $8,400 selling automobiles, a substantial sum of money, and in several months earned more than some of the Company's full-time salespersons and for the whole year earned more than 50 percent of what two of Respon- dent's full-time salespersons earned. This sales and earn- ings record is not the record of a temporary or casual worker; rather, I am of the view that it is a fair inference from this record that Acree, during the lengthy tenure of his employment with Respondent, has regularly worked a substantial number of hours. Inasmuch as Acree has regularly worked a substantial number of hours for Respondent as a part-time salesper- son and because his work is similar to the work per- formed by the full-time salespersons and because he shares the same supervision and method of compensation with the full-time salespersons, I am of the opinion that Acree should be considered a regular part-time employee with a sufficient community of interest to be included within the appropriate unit. In determining the relative regularity or permanence of Acree's employment with Respondent, I believe that the evidence, which indicates that Acree has regularly worked a significant number of hours for Respondent. outweighs those considerations having to do with his freedom to determine his own work schedule and his freedom to work intermittently. For, it is not a self- scheduled workweek whereby a part-time employee limits his hours of work and his earnings which plays a primary role in deciding whether he is a casual or regu- lar part-time worker. Cf. Indianapolis Glove Company. Inc. v. N.L.R.B., 400 F.2d 363, 368. Accord: Consolidat- ed Supply Co., Inc. and its successor Consolidated Supply of Madison, Inc., 192 NLRB 982 (1971); Holiday Inns of America, supra at 940-941. Rather, the test focuses on whether the part-time worker works regularly for the employer and whether he or she performs the same basic job as do the full-time workers. Indianapolis Glove Com- pany v. N.L.R.B., supra at 367-369; Westchester Plastics of Ohio, Inc. v. N.L.R.B., supra at 908. A longstanding reg- ularly employed salesperson, such as Acree, meets these criteria. The several differences between Acree and the other unit employees, such as the fact that he is exempt from attending sales meetings, does not receive a draw against his commissions, is not listed on the posted notice worked 16 17 hours a week for Westchester P3astic, and receied nlln of the fringe benefits to which full-lime emplosees were entitled None- theles, becaus li he regularly performed shork for Westchester I'lastics and beca use lie perforimed duties similar t the lull-line niploCee. and shared the same uperisiloni. uwrking condltlon.. ad wlagcs. Ihl' court enforced the Boiard's rder and included him in Ai 1Ullil fll-tinCme e plosees 867 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which compares the monthly earnings of the salesper- sons, and does not have to meet the same production quota as the full-time employees, go only toward Acree's status as a non-full-time employee, not to any question concerning the regularity or irregularity of his part-time work. Part-time employees, by the very nature of their status, can be expected to face some conditions different than those of full-time employees. Such differences in no way are inconsistent with regular part-time status. Finally, I recognize that, since Acree performs most of his sales work away from the dealership, he does not have a significant amount of contact with Respondent's other salespersons. However, as I have found supra, it is customary for all of the salespersons to perform at least 50 percent of their work away from the dealership and three of the salespersons, like Acree, do virtually all of their saleswork away from the dealership. Under these circumstances, the lack of significant contact between Acree and the other salespersons does not militate against a finding that he is a regular part-time employee. 3. The status of Kim Choi a. The evidence Kim Choi is the wife of Sam Choi, who is a salesper- son employed by Respondent. Kim Choi worked for Re- spondent from May 25 until August 31. Sam Choi began work for Respondent in February and was still employed on the date of the hearing in this case. He is admittedly included within the appropriate unit. The Chois are Korean. Kim Choi's ability to speak and understand Eng- lish is limited. She was employed for the specific purpose of assisting her husband in selling vehicles to Korean customers. She filled out the Company's standard em- ployment application, and her husband asked Sales Man- ager Filippi if Respondent would hire her as a salesper- son to help him sell motor vehicles to Korean customers. Filippi hired Kim Choi but advised Sam Choi that his wife would have to obtain her sales license from the State of California and that Filippi expected her to work the same work schedule as her husband. Kim Choi obtained a temporary sales license from California, but did not work the same work schedule as her husband. She worked part time. Sam Choi, like Re- spondent's other full-time salespersons, worked approxi- mately 55 hours a week, whereas Kim Choi worked ap- proximately 22 hours each week. Unlike the other salespersons, Kim Choi had no office of her own. She shared her husband's. She assisted her husband in soliciting business by writing to Korean cus- tomers and by personally speaking to Korean customers who visited the dealership. All of her earnings were the result of commissions which were split with her husband. She never sold a vehicle by herself, nor split a sale with a salesperson other than her husband, and, since her hus- band "closed" all of her sales transactions, Respondent listed only her husband's sales number on the report of sales form submitted to the California Department of Motor Vehicles. Respondent listed Kim Choi on its regular payroll, with the other salespersons, and she was paid in the same manner as the others; i.e., commissions and bonuses. Also, like the other salespersons, she was paid a monthly draw. Kim Choi and her husband split all of the commis- sions paid by Respondent involving the sales of vehicles in which Kim Choi was personally involved. They split these commissions on a 50/50 basis.4 6 The record re- flects that the splitting of commissions is a common prac- tice among the salespersons inasmuch as the commissions from approximately 60 percent of the Respondent's sales are split by two or more salespersons. Kim Choi performed similar duties as the other sales- persons. She solicited business through the mail and at- tempted to sell cars and trucks to customers who visited the dealership. She greeted customers when they visited the dealership's sales floor, showed them the various ve- hicles being offered for sale, and attempted to sell them a vehicle. In connection with her sales' efforts, she secured miscellaneous information, including credit information from the customers which the dealership needed before it could commit itself to a sale. Kim Choi, like all of the other salespersons, attempted to get customers commit- ted to purchasing a motor vehicle at a particular price, but unlike the others she would not "close" any of these sales transactions but would turn this task over to her husband. In the automobile sales industry a salesperson who performs Kim Choi's duties is commonly known as a "liner." Like the other salespersons, Kim Choi was supervised by the sales managers. Unlike the other salespersons, she was exempt from attending the sales meetings due to her poor comprehension of English. Her husband told her what took place at these meetings. Unlike the other salespersons, Kim Choi was not pro- vided with a demonstrator automobile nor with medical insurance. She turned down the offer of a demonstrator and medical insurance coverage because she always rode to and from work with her husband, using his demon- strator, and as the wife of a salesperson she was already covered by the Company's medical program when she started working. b. Conclusions The General Counsel contends that Kim Choi was a casual employee with an insufficient community of inter- est with the unit employees to be included within the ap- propriate bargaining unit. The applicable principles of law governing the status of so-called casual and part-time employees have been discussed, supra, in connection with Acree's status. Guided by these principles, I am of the opinion that Kim Choi had a sufficient community of interest in common with the salespersons employed in the appropriate unit so as to be included within that unit. Kim Choi regularly worked as a salesperson a substantial number of hours, approximately 22 hours a week, and performed the same work in the same work area as sales- persons who are included in the appropriate unit and shared the same method of compensation and the same supervision as the unit employees. These circumstances "4 The Chois received separate monthly paychecks The record reveals that Kimn Choi earned 23760 during her first week of employment and during the next 3 months earned $1.1 1737. 1,046.50, and $106704, re- spectively 868 ED CHANDLER FORD, INC. persuade me that Choi was a regular part-time employee, as defined by the Board, who shared a community of in- terest with the full-time salespersons sufficient to warrant her inclusion in that bargaining unit. See Westchester Plastics of Ohio, Inc. v. N.L.R.B., supra. The fact that Kim Choi was exempt from attending sales meetings because of her limited comprehension of English and elected not to participate in certain fringe benefit programs does not detract from her status as a regular part-time employee. Nor does her inability to communicate with salespersons other than her husband detract from the weight of the evidence, supra, which es- tablishes that she was sufficiently concerned with the terms and conditions of employment in the appropriate unit so as to warrant her participation in the selection of a collective-bargaining agent. The fact that an employee does not speak or understand English should not pre- clude the employee from participating in the selection of a collective-bargaining representative where, as here, the record demonstrates that the employee is sufficiently concerned with the terms and conditions of employment of the unit employees. 4. The status of Duarte, Greene, and Scott a. The evidence In March 1978, Respondent hired Lanny Brum as a sales manager. Brum was experienced in the field of automobile sales financing. He was hired for the purpose of reorganizing that aspect of the Respondent's business which was involved with arranging credit for customers who had decided to buy an automobile. Brum discharged the persons employed by Respondent involved in this type of work and replaced them with Duarte, Greene, and Scott, whom Brum hired respectively in March, April, and July. None of them had any sales experience but previously had been employed by banks or other fi- nancial institutions. Brum, as he credibly testified, did not hire them to perform salespersons' duties but hired them to deal with that aspect of the business which in- volves arranging customers' credit. Unlike the salesper- sons, neither Duarte, Greene, nor Scott were referred to as salespersons; instead Respondent gave them the title of "finance manager." 4 7 Duarte, Greene, and Scott, herein referred to as fi- nance managers, spent approximately 80 percent of their worktime speaking with representatives of banks and other financial institutions for the purpose of checking out customers' credit and to arrange for credit for cus- tomers who wanted to purchase automobiles. The fi- nance managers also prepared the necessary documenta- tion to complete the sales transactions and transfer the automobile's title. They explained these documents to the customers and secured the customer's signatures. The in- formation which the finance managers use to prepare these documents and to make the necessary credit ar- rangements is usually transmitted to them by the sales- persons. "4 Based upon the undisputed evidence that Respondent supplied busi- ness cards to Duarte, Greene, and Scott to give to customers. which cards designated them as "finance manager." Normally, finance managers come into contact with the salespersons on several different occasions during the sale of an automobile. A salesperson usually escorts the customer into the finance manager's office to sign the documents connected with the sales transaction. If a fi- nance manager has difficulty getting a bank to approve a customer's loan, he may speak to the salesperson and/or the customer in an effort to resolve the problem. Also, if the customer's loan application is incomplete or incor- rect, the finance manager will speak to the salesperson and/or the customer. Also, the credit application filled out by the customer is delivered to the finance manager by either a salesperson or the sales manager and, if the finance manager's credit investigation reveals derogatory information, he will discuss the matter with the salesper- son and/or the customer. During a customer's visit to the finance manager's office to sign the documents connected with the pur- chase of a vehicle, the finance manager, besides explain- ing the information contained in the several sales docu- ments, attempts to persuade the customer to purchase several extra items such as undercoating, an extended warranty, life and disability insurance, or a burglar alarm. If the salesperson has failed to persuade the cus- tomer to purchase one or all of these extras, the finance manager will also try to sell them to the customer and, if he succeeds, will split the bonus Respondent pays for the sale of these extras with the salesperson who sold the ve- hicle. Also, the finance manager will attempt to persuade the customers to finance their automobiles through finan- cial institutions recommended by Respondent, if the salesperson has not already done so, and if he succeeds will split a bonus with the salesperson. It is not unusual for a customer, while in the finance manager's office for the purpose of signing the sales papers to have second thoughts about buying the auto- mobile. After looking through the documents, customers indicate to the finance manager that they now realize that the payments are more than they can afford. The fi- nance manager will then attempt to persuade the custom- er to go through with the sale, but if he fails will call the salesperson into the office and will attempt to resell the customer. The finance managers share common supervision with the salespersons and share the same fringe benefit pro- grams with them. Regarding the selling of motor vehicles, the salesper- sons spend virtually all of their working time selling automobiles or trucks to customers and spend a signifi- cant portion of their worktime away from the Employ- er's premises selling these vehicles. The remainder of their working time is spent in their offices speaking to prospective customers over the telephone and writing to prospective customers. The finance managers only on rare occasions, if ever, will attempt to persuade a cus- tomer to purchase a motor vehicle. Occasionally, one of the finance managers will sell an automobile to a person- al friend or a representative of one of the financial insti- tutions whom they do business with. Also, Duarte, who is proficient in Spanish, will occasionally sell an auto- mobile to a Spanish-speaking customer when no Spanish- 869 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speaking salesperson is available to speak to the custom- er. On none of these occasions will the finance managers receive any compensation for the sale, whereas the sales- persons whenever they sell an automobile receive a com- mission. All of Respondent's employees, including the finance managers, who are connected with the sale of auto- mobiles are required by the State of California to have a sales license. However, the finance managers worked without sales licenses for several months before taking the time to go to the office of the Department of Motor Vehicles to secure them. Duarte and Greene worked for approximately 6 months before they secured their li- censes, and Scott worked for approximately 2 months before he got his. The way the finance managers are compensated differs from the salespersons. The salespersons receive a com- mission for every automobile they sell and during the middle of each month receive $600, called a "draw," which is deducted from their commissions. The finance managers receive a monthly salary plus a percentage of the dealership's monthly gross income from the sales of vehicles. The finance managers work longer hours than the salespersons. They work between 60 to 65 hours a week, whereas the salespersons average between 50 to 55 hours a week. The finance managers share the same office, whereas each full-time salesperson has a separate office. The fi- nance managers' office is located in the same area as the salespersons' offices. The finance managers are not required to attend the regularly scheduled sales meetings, whereas the salesper- sons are required to attend these meetings. However, the finance managers frequently attend sales meetings. The salespersons are furnished with an automobile for their personal use, called a demonstrator, whereas the fi- nance managers are not. b. Conclusions In its answer to the complaint Respondent admits that the bargaining unit in which the Union seeks recognition, a unit comprised of "all salespersons employed by Re- spondent excluding all other employees," is an appropri- ate bargaining unit within the meaning of the Act.48 Thus, the essential question concerning the status of the finance managers is whether to include them in the ap- propriate bargaining unit, even though it is limited to only salespersons. The basic criteria used to exclude or include employees from appropriate units is a community of interest. Under this criteria "the Board traditionally excludes from the appropriate unit those employees who do not have a sufficient interest in common with other employees to warrant their inclusion therein." Stanislaus '^ I recognize that Respondent in the representation case entered into an election agreement which specifically limited the appropriate unit to "salespersons"; thus, on its face the description does not include the fi- nance managers Whatever the effect of this agreement concerning the voting eligibility or the finance managers in the representation case, I am of the opinion that it does not preclude Respondent in the unfair labor practice proceeding from urging that the finance managers should be in- cluded in the appropriate unit based upon a community of interest with the salespersons. Implement & Hardware Company, 92 NLRB 897, 898 (1950). I have considered the several factors which are pertinent to the question of whether the finance manag- ers have a sufficient community of interest to be included within the appropriate unit of salespersons. On balance, I conclude that they do not have a sufficient community of interest with the salespersons to warrant their inclu- sion. In reaching this conclusion, I was influenced by these considerations: (1) There is a substantial difference between a finance manager's and salesperson's method of compensation. The salespersons are not salaried or hourly paid workers, but they receive a commission for each vehicle they sell and during the middle of the payroll period receive a sum of money called a "draw" which is deducted from their commissions. In contrast, the finance managers, like the members of management, receive a fixed monthly salary and a percentage of the dealership's sales revenue. (2) There are substantial differences in the finance managers' and salespersons' working conditions: (a) The finance managers spend all of their working time at the dealership, whereas the salespersons spend a substantial portion of their working time away from the dealership; (b) the finance managers are not required to attend the regularly scheduled sales meetings; (c) the finance man- agers share one office, whereas the salespersons each have their own office; (d) the finance managers regularly work 10 hours a week more than the salespersons; and (e) the salespersons have the personal use of a company demonstrator car, whereas the finance managers do not. (3) There are significant dissimilarities between the fi- nance managers' and salespersons' skills and qualifica- tions. The finance managers' employment experience prior to working for Respondent was with banks and other financial institutions. Consistent with their past work experience, they were employed for the express purpose of dealing with banks and other financial institu- tions to check out customers' credit ratings and to ar- range for customers' credit. The finance managers are not employed by Respondent because of their qualifica- tions and skills as salespersons, but because of their quali- fications and skills in dealing with customers' credit, whereas Respondent's salespersons are employed because of their skills and qualifications as salespersons. (4) There are significant differences between the fi- nance managers' and salespersons' job functions. A sales- person spends virtually 100 percent of his or her work- time selling customers motor vehicles and extra items, whereas a finance manager spends a de minimis amount of worktime selling motor vehicles and spends not more than 5 percent of his worktime selling extra items and as- suaging hesitant customers. The finance managers spend approximately 80 percent of their worktime talking with representatives of banks and other financial institutions to determine whether cus- tomers' credit histories are satisfactory and to arrange for the customers to be extended credit. The remaining 20 percent of the finance managers' worktime is spent as follows: A portion is used to secure credit information from the customers, another portion is spent performing the clerical work, i.e., typing, which is necessary for the 870 ED CHANDLER FORD, INC. preparation of the several sales and credit documents, and yet another portion is spent explaining these docu- ments to the customers and having them signed by the customers. Also, a part of their worktime is spent selling extra items and "house financing" to the customers and attempting to assuage customers who, at the time the sales and credit documents are being explained by the fi- nance managers, become hesitant about buying the vehi- cle. Finally, finance managers will sporadically sell an automobile to a personal friend or a representative of one of the banks with whom they do businsss. However, this selling constitutes a de minimis amount of their working time and in the rare instances when they sell an auto- mobile, unlike the salespersons, the finance managers do not receive a commission or any other form of additional compensation for the sale. 49 (5) Respondent evaluates the salespersons' and finance managers' work performnces differently. It is undisputed that the most important factor used by Respondent to evaluate its salespersons' work performances is the amount of commissions earned each month by the sales- persons from the sales of motor vehicles. In other words, the salespersons' work performances are judged primar- ily on their success in selling automobiles, whereas the fi- nance managers, whose job is not to sell autombiles, pre- sumably are judged primarily on their performance in ar- ranging for customers' credit which is their principal re- sponsibility. The aforesaid circumstances persuade me that the fi- nance managers do not have a sufficient community of interest with the salespersons and for that reason should be excluded from the appropriate unit. In reaching this conclusion, I have considered that the finance managers share the same supervision and fringe benefits with the salespersons, are regularly in contact with the salesper- sons, and spend approximately 5 percent of their work- ing time attempting to assuage customers who have changed their minds about buying a motor vehicle and in attempting to sell customers extra items and "house fi- nancing" for which they share a bonus with the salesper- sons who sold the cars. In concluding that these factors are not sufficient to overcome the other substantial fac- tors which indicate that the finance managers do not have a sufficient community of interest with the salesper- sons, I note that the finance managers' sales duties are minimal and constitute only 5 percent of their working time. Cf. N.L.R.B. v. Sunnyland Refining Co., d/b/a Kane-Miller Corp., 474 F.2d 407 (5th Cir. 1973). Also, I have carefully considered Sears, Roebuck Co., 194 NLRB 321 (1971); Levitz Furniture Corporation, 223 NLRB 522 (1976); Dr. Pepper Bottling Company of Fort Worth, Texas, 228 NLRB 1119 (1977) (dispatcher); and Coca-Cola Bot- tling Company of Fort Worth, 229 NLRB 533 (1977) (spe- cialists), cited by Respondent, and I am of the opinion that these cases are significantly factually distinguishable. 4' In view of the fact that it is undisputed that 80 percent of the fi- nance managers' working time is spent dealing with representatives of banks and other financial institutions and that the remaining 20 percent of their time is apportioned between the several tasks described above, I find that it is a fair inference that not more than 5 percent of a finance manager's working time is devoted to selling extra items and "house fi- nancing," and reassuring customers who have become hesitant about completing their sales transactions Moreover, in Sears, Roebuck and Levitz Furniture the em- ployers disputed the appropriateness of the unit sought by the union. Here, Respondent admits that a bargaining unit comprised solely of Respondent's salespersons is an appropriate unit. Based upon the foregoing, I find that the finance man- agers are not sufficiently concerned with the terms and conditions of employment in the appropriate unit so as to have a community of interest with those employees; therefore, I shall recommend that the finance managers be excluded from the appropriate unit. 5. Conclusions I have found, supra, that Acree and Kim Choi were in- cluded in the appropriate bargaining unit and that the au- thorization card signed by Medeiros was invalid. There- fore, since Acree and Choi did not sign union cards, only 17 of the 35 employees who were employed in the ap- propriate unit on August II had signed cards designating the Union as their exclusive collective-bargaining repre- sentative; thus, the Union did not represent a majority of the unit employees on that date. The General Counsel does not contend the Union at any other time material to this case represented a majority of the Respondent's em- ployees in the appropriate unit and my independent ex- amination of the record on this point reveals that subse- quent to August 11 the Union did not at any time materi- al to this case acquire the support of a majority of the unit employees. It is because the Union at no time repre- sented a majority of the unit employees that I shall rec- ommend that the refusal-to-bargain allegation be dis- missed. 11. THE REPRESENTATION CASE The Union's objections to the election encompass the subject matter of the unfair labor practice violations found supra, and, accordingly, as such conduct took place during the relevant period between the filing of the representation petition and the holding of the election, I conclude that those unfair labor practices interfered with the employees' free choice in the election. Therefore, I shall recommend that the election herein be set aside and that the Regional Director shall hold a second election to determine the question of representation when he deems that a fair election can be held. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees that their union activities were inconsistent with continued employment with Re- spondent, by threatening employees with the cancellation of their bonuses if they supported the Union, by deliber- ately placing the name of an ineligible voter on the eligi- bility list it furnished the Board in Case 32-RC-446 for the purpose of defeating the Union, and by announcing and maintaining a rule which prohibits employees from 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in union solicitation or from talking about the Union during nonworking time in nonpublic areas of the dealership, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Other than as found above, Respondent has not en- gaged in unfair labor practices within the meaning of the Act. 6. By engaging in the conduct described above in paragraph 3 of the Conclusions of Law, Respondent has interfered with its employees' freedom of choice in the election conducted September 26, 1978. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The Gen- eral Counsel's contention that the unfair labor practices found herein warrant the imposition of a remedial bar- gaining order has been rejected because, as I have found supra, the Union did not at any point of time represent a majority of the employees in the appropriate bargaining unit and, absent such a showing, Respondent's unfair labor practices do not warrant the imposition of a bar- gaining order. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5° The Respondent, Ed Chandler Ford, Inc., Hayward, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees that their union activities are inconsistent with continued employment with Ed Chandler Ford, Inc. bO 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. (b) Maintaining in effect a rule which prohibits em- ployees from engaging in union solicitation or from talk- ing about a union during nonworking time in nonpublic areas of Ed Chandler Ford, Inc. (c) Deliberately including the names of ineligible voters in the voter eligibility list furnished to the Nation- al Labor Relations Board for the purpose of defeating a union in a Board-conducted representation election. (d) Threatening employees that their bonuses will be canceled if they support a union. (e) In any like or related manner interfering with or attempting to restrain or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Rescind its rule which prohibits employees from engaging in union solicitation or from talking about a union during nonworking time in nonpublic areas of Ed Chandler Ford, Inc. (b) Post at its facility in Hayward, California, copies of the attached notice marked "Appendix." 5 ' Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges other unfair labor practices not specifically found herein. IT IS FURTHER ORDERED that the election in Case 32- RC-446 conducted September 26, 1978, be, and it hereby is, set aside, and that said case be remanded to the Re- gional Director for Region 32 for the purpose of con- ducting a new election. 5' 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 872