Richmond Toyota, Inc.

130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Richmond Toyota, Inc. and Automobile Salemen's Union Local 1095, United Food & Commercial Workers International Union, AFL-CIO., Case 32-CA-7515 15 December 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 4 March 1986 Administrative Law Judge Jer- rold H. Shapiro issued the attached decision. The Charging Party filed exceptions and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. The Respondent is alleged to have violated Sec- tion 8(a)(5) by withdrawing recognition from the Union. The judge found, inter alia, that the Respondent had not recognized the Union and, therefore, the Respondent did not violate the Act by refusing, on 17 September 1985,2 to bargain with the Union. The General Counsel contends that the Respond- ent, through Vice President and General Manager Pao, had recognized the Union on 3 September as the collective-bargaining representative of the Re- spondent's motor vehicle sales employees and that, thereafter, it unlawfully disavowed that recognition and refused to bargain with the Union. We agree with the General Counsel. The Respondent sells and services new and used automobiles. Gordon Pao, its president and sole owner, is not involved in the daily management of the business. Loretta Pao, his wife, is Respondent's vice president-general manager and is in charge of the day-to-day operations. Based on their credited testimony, Union Presi- dent Silva and Business Manager Kendrick on 3 September spoke with Loretta Pao at the Respond- ent's facility. They identified themselves and pre- sented her with a letter that stated that the Union represented a majority of the Respondent's "motor I The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 All dates are in 1985 vehicle sales people." The letter also indicated that they were prepared to prove their majority by showing the signed authorization cards. The union officials then requested that Loretta Pao meet with them on 12 September to negotiate a collective- bargaining agreement. Pao read the letter and asked them if they could prove that they represent- ed a majority of the salespersons. Silva answered in the affirmative. Pao pointed to the sales licenses of 10 employees and identified each employee by po- sition. Silva produced four signed authorization cards.3 Loretta Pao recognized the employees' sig- natures. She indicated that she was unavailable on 12 September; that she knew nothing about negoti- ations; and that her husband would handle the ne- gotiations and contact Silva. Later that day, the Union, pursuant to its policy of simultaneously requesting voluntary recognition and filing a representation petition, filed an election petition with the Board. Approximately 1 day later, Silva instructed Secretary-Treasurer Salvaressa to withdraw the petition. Silva explained that Pao had viewed the authorization cards . . . looked at them, wrote the names down, and that we had the majority vote . . . I don't think its neces- 9 The judge, based on his conclusion that the Respondent did not rec- ognize the Union, did not consider the Respondent's alternative defense that the Union did not represent a majority of the unit employees because the appropriate unit included the outside salespersons, the finance and in- surance manager (Burcina), and the sales manager's assistant (Travis) The Respondent filed no exception to the judge's decision However, the appropriate unit issue was fully litigated, and the judge, in his decision, fully and correctly sets forth the relevant facts necessary for the determi- nation Thus, we note that the judge found that the outside salespersons do not work at the Respondent's facility and have no contact with the six inside salespersons For this reason, as well as the numerous other differ- ences fully set forth in the judge's decision, we find that they lack a com- munity of interest with the inside salespersons Regarding the Finance and insurance manager, Burcina, the judge found substantial differences in his method of compensation, hours of work, working conditions, work rules, fringe benefits, and job duties Based on these differences and his duties, as set forth in the judge's deci- sion, we find that Burcina should be excluded as a managerial employee or, at least, because of a lack of a sufficient community of interest We also find that Walter Travis should be excluded from the unit Travis works different hours and days from the inside salespersons, does not attend the weekly sales meeting, which is mandatory for inside salesper- sons, and, unlike the inside salespersons, he receives a guaranteed month- ly wage As found by the judge, this wage is for the time he spends as- sisting the sales manager His duties in that capacity are fully set forth in the judge's decision Based on those duties, and the differences set forth above, we find that Travis should be excluded as a managerial employee or, at least, for lack of a sufficient community of interest Accordingly, we find that the appropriate unit is that alleged in the amended com- plaint All full-time and regular part-time motor vehicle sales personnel em- ployed by Respondent at its Richmond, California facility, excluding office clerical employees, finance and insurance manager, new car sales manager, used car sales manager, outside salesmen, guards, and supervisors as defined in the Act, and all other employees We also find that on 3 September there were six salespersons in the appropriate unit (Eastman, Kray, Wendroth, Wilbourn, Rothman, and Dooley) and that a majority of these employees (Eastman, Kray, Wil- bourn, and Rothman) had selected the Union as their representative for the purpose of collective bargaining 287 NLRB No. 13 RICHMOND TOYOTA sary to go proceed with an election . . . . Be- cause we had the majority of cards signed by the seven salespeople . . . we didn't have to go to an election. Salvaressa withdrew the petition. On 14 or 15 September Silva telephoned Pao and told her that the Respondent had not contacted the Union on the agreed 12 September date . Pao re- plied that, according to her memory, she had pre- viously stated that she was unavailable on 12 Sep- tember and "Gordon is going to talk to you." When Silva claimed that her husband had not con- tacted him, Pao gave him Gordon Pao's telephone number. Although Silva telephoned Gordon Pao approximately five times during the next several days, he never returned Silva's calls . On 17 Sep- tember Silva received a letter from the Respond- ent's labor consultant that stated that it is the company's position that the question of representation of the sales employees .. . would be best resolved through procedures provided by the National Labor Relations Act. The Company has no intention of meeting with the Union to discuss matters of alleged representation. In concluding that Pao did not recognize the Union, the judge analyzed Silva and Kendrick's re- lated testimony by noting that Pao was ignorant of and did not have any operational responsibility for labor relations, that sole authority in this area was exercised by her husband, and that Pao never ac- knowledged that the four signed authorization cards constituted a majority of the requested unit. The judge noted, in addition, that after Pao ques- tioned the Union's majority claim by asking for proof and by pointing to and reviewing the 10 sales licenses, she never agreed that the unit constituted fewer than 10 employees . Because of both Pao's unfamiliarity with labor relations and her failure to acknowledge the Union's majority status, the judge found that Pao's statements that her husband would "handle" or "take care of" the negotiations did not constitute voluntary recognition . The judge attempted to bolster his conclusion by stating that when Silva told Salvaressa to withdraw the Union's election petition, he failed to mention that Pao either had acknowledged the Union 's majority status or had agreed that her husband would nego- tiate with the Union. The judge concluded that the Union never believed that Pao had "committed Re- spondent to bargain with the Union as the salesper- sons' collective-bargaining representative." At the outset we note that it is beyond question that Loretta Pao, as Respondent's vice president- general manager, who is in charge of day-to-day 131 operations and is the highest ranking official at its facility, had, at the very least, apparent authority to recognize the Union as the exclusive representative of the Respondent's employees. This is true regard- less of Gordon Pao's responsibility for labor rela- tions matters. Thus, the only question is whether Loretta Pao recognized the Union. We conclude that she did. Thus, we find , based on the testimony of Silva and Kendrick, which the judge credited, that on two separate occasions Loretta Pao agreed to future negotiations with the Union . On 3 Sep- tember, the first occasion, Silva asked Pao to nego- tiate with the Union after Pao verified the employ- ee signatures on the authorization cards. Pao did not decline to negotiate with the Union on either general grounds or by questioning the Union's ma- jority status. Instead, she demonstrated her agree- ment not only by declining to attend the requested 12 September meeting only because of a scheduling conflict, but also by explicitly stating that her hus- band would attend. Even assuming that Pao was mistaken about what she or the Union had said on 3 September, she was confronted with Silva and Kendrick's ver- sion of this conversation on 14 or 15 September. When Silva asked her why the Respondent had not contacted the Union on the agreed 12 September date, Pao did not question either Silva 's version of their previous conversation or the Respondent's re- lated commitment to negotiate. Instead , Pao dem- onstrated her assent for a second time by restating her belief that because a scheduling conflict had prevented her from attending the meeting, Gordon Pao "is going to talk to you." The judge interprets Pao's statements , in part, by noting that she never acknowledged the Union's majority status. As indicated above, however, Pao consented to future negotiations with the Union after verifying the authenticity of the Union's au- thorization cards. Because Pao only questioned the Union's majority status before examining and veri- fying the authorization cards, and because she con- sented to future negotiations after authenticating the cards, we find that she acknowledged the Union's majority status. We also observe that it was Loretta Pao who re- quested proof of the Union's majority status, who examined the authorization cards, and who verified the employees' signatures. We find that this con- duct is hardly demonstrative of, or consistent with, naivete in labor relations. Nor do we agree with the judge's conclusion that because Silva did not specifically tell Sal- varessa of Loretta Pao's agreement to negotiate, Silva did not believe that she had extended volun- tary recognition. Silva was merely giving instruc- 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions to a subordinate. No amplification was re- quired or requested. Indeed, Silva's instruction to Salvaressa to withdraw the petition is consistent with a belief that the Respondent had voluntarily extended recognition. Having found that the Respondent voluntarily recognized the Union as the exclusive representa- tive of its employees in the appropriate unit and, thereafter, refused to bargain with the Union, we conclude that the Respondent has violated Section 8(a)(5) and (1) of the Act.4 CONCLUSIONS OF LAW 1. Richmond Toyota, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Automobile Salesmen's Union Local 1095, United Food & Commercial Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time motor vehi- cle sales personnel employed by Respondent at its Richmond, California facility; excluding office cler- ical employees, finance and insurance manager, new car sales manager, used car sales manager, outside salesmen, guards, and supervisors as de- fined in the Act, and all other employees, consti- tute a unit appropriate for the purposes of collec- 4 Our dissenting colleague finds that Loretta Pao's 3 September state- ment to the Union's officials that her husband would "handle" or "take care of the negotiations is equivocal at best since she omitted any refer- ence to collective bargaining We emphasize, however, that Loretta Pao's statement was made during the course of a conversation in which the Union presented her a letter, which she read, that requested recognition and, specifically, that the Respondent meet with the Union on 12 Septem- ber for the purpose of negotiating a collective-bargaining agreement Moreover, we note that the judge himself found that Loretta Pao's state- ment was made in reference to the 12 September negotiation meeting Further, particularly in the context here, we cannot agree with our dis- senting colleague's suggestion that Loretta Pao's use of the term "negoti- ations" was ambiguous and that the term reasonably could have meant "negotiations about the Union's demand " Without regard to whether Loretta Pao participated in or was responsible for negotiations concern- ing the Respondent's other employees who already were represented by a union, her statement to the Union's officials here was consistent with her knowledge of the existence of that unit and the fact that her husband handled contract negotiations concerning that unit Contrary to our dissenting colleague, we also find that Jerr-Dan Corp, 237 NLRB 302 (1978), supports the conclusion here that Loretta Pao ex- tended recognition to the Union In this regard, it is clear from Jerr-Dan that it is not required that an employer expressly state that it recognizes a union and in that case the Board's conclusion that the employer had ex- tended recognition flowed from the employer's implicit recognition of the Union's majority, based on the employer's commitment to enter into negotiations with the union Id at 303 and fn 6 Finally, we find that none of the other cases cited by our colleague in fn 2 of his dissent is controlling here Thus, we note, inter alia, that in Ednor Home Care, 276 NLRB 392, 395 (1985), the employer never made a commitment to engage in contract negotiations, in Silver Nugget Casino, 268 NLRB 1, 2 (1983), the employer's president specifically advised the union that he would "let [it] know what his decision was in a couple of days", and in Trevose Family Shoe Store, 235 NLRB 1229, 1231-1232 (1978), the em- ployer's co-owner refused to sign a recognition agreement and insisted that he be given an opportunity to discuss the matter with his partner and requested a 2-week delay to do so tive bargaining within the meaning of Section 9(b) of the Act. 4. At all times since 3 September 1985, Automo- bile Salesmen's Union Local 1095, United Food & Commercial Workers International Union, AFL- CIO had been the exclusive representative of all the employees in the appropriate unit for the pur- poses of collective bargaining regarding wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By refusing on or about 17 September 1985 to bargain with the Union as the exclusive representa- tive of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 6. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain with Automobile Salesmen's Union Local 1095, United Food & Commercial Workers Inter- national Union, _AFL-CIO, since 17 September 1985, as the, exclusive representative of its employ- ees in an appropriate unit, we shall order that the Respondent cease and desist and, on request, bar- gain collectively with the Union concerning wages, rates of pay, hours of employment, and other terms and conditions of employment. The General Coun- sel's request for a visitatorial provision is denied as unnecessary. ORDER The National Labor Relations Board orders that the Respondent, Richmond Toyota, Inc., Rich- mond, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collective- ly with Automobile Salesmen 's Union Local 1095, United Food & Commercial Workers International Union, AFL-CIO as the exclusive representative of its employees in the following appropriate unit, re- garding wages, rates of pay, hours of employment, and other terms and conditions of employment: All full-time and regular part -time motor vehi- cle sales personnel employed by the Employer at its Richmond, California facility; excluding office clerical employees , finance and insur- ance manager, new car sales manager, used car sales manager, outside salesmen, guards, and RICHMOND TOYOTA supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (b) Post at its office in Richmond, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER STEPHENS , dissenting. I dissent from the majority's finding that the Re- spondent, through its vice president and general manager, Loretta Pao, voluntarily recognized the Union as the exclusive representative of its employ- ees. I agree with the finding of the administrative law judge that no such recognition was extended. The credited testimony establishes that on 3 Sep- tember 1985 Union President Silva and Business Representative Kendrick approached Pao with a claim that the Union represented a majority of the Respondent's "motor vehicle sales people," and in- dicated that they could demonstrate their majority status by showing signed authorization cards. The union representatives also asked Pao to meet with them on 12 September to negotiate a collective- bargaining agreement . Pao asked them if the Union could prove that it represented a majority of the sales force, and when Silva answered in the affirm- ative, Pao pointed to sales licenses of 10 employ- ees, informed Silva that those were her salesper- 5 If 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 133 sons, and identified each employee by position. Silva then reiterated that the Union could prove it represented a majority of the Respondent 's sales- persons. When Pao stated that she was interested in seeing the Union's proof, Silva showed her four au- thorization cards. Pao examined each card and stated that she recognized the signatures of the signers . Silva informed her that the authorization cards were the proof of the Union's majority status, and that they wished to meet with her on 12 September. Pao answered that she could not meet on 12 September because of a previous commit- ment, that she did not know anything about negoti- ations, and that her husband, Gordon Pao (the Re- spondent's president and sole owner), would "handle the negotiations" and contact Silva. On or about 14 or 15 September Silva tele- phoned Loretta Pao and told her that, contrary to his expectations, he had not heard from her or from the Respondent on 12 September. Pao re- plied, "Don't you remember? Gordon is going to talk to you. I had a business appointment and I was busy on the 12th." Silva replied that Gordon Pao had not contacted him and asked how he could contact G. Pao. L. Pao gave Silva her husband's telephone number. Silva attempted several times during the next few days to telephone G. Pao at the number furnished by L. Pao, but was unsuc- cessful, and G. Pao never returned his calls. On 17 September the Respondent's labor relations con- sultant informed Silva by letter that the Respond- ent wished to resolve the representation question through the Board's procedures and did not intend to meet with the Union to discuss matters of repre- sentation. On this record, I cannot agree that the General Counsel has carried the burden of showing that the Respondent, through Loretta Pao, voluntarily rec- ognized the Union at any time. Clearly, when an employer has agreed to recognize a union upon proof of the union's majority status, and when the union's majority status has been demonstrated, the Board will find that the employer has voluntarily recognized the union.' The facts in this case, how- ever, are different. During the 3 September meet- ing with the union officials, L. Pao never stated that the Respondent would recognize the Union, never agreed to recognize the Union on being fur- nished proof of the Union's majority status, never expressly acknowledged that the Union had pre- sented proof of majority support, and never ex- pressly committed her husband to take part in col- I See, e.g., The Broker, 282 NLRB 1265 (1987), Wayside Realty Group, 281 NLRB 357 ( 1986). 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective-bargaining negotiations.2 In her telephone conversation with Silva on 14 or 15 September, L. Pao was, if anything, even more indefinite about the Respondent's intentions. She said only that she had been busy with another appointment, on 12 September (when the Union originally had wanted to meet) and that "Gordon is going to talk to you." Those statements contain not even a suggestion of voluntary recognition or of a promise to negotiate. In short, I believe that the General Counsel failed to establish her case by a preponderance of the evidence. L. Pao's equivocal statements about a future meeting between her husband and the union officials, viewed in the context of her failure even to acknowledge that the Union had obtained ma- jority status, do not, in my opinion, establish volun- tary recognition. I consider her equivocal state- ments to have been little more than a veiled effort to keep the Union at bay until she had consulted her husband.3 Accordingly, I would 'adopt the finding of the judge that the Respondent never vol- untarily recognized the Union, and I would affirm his dismissal of the complaint. 2 Jerr-Dan Corp, 237 NLRB 302 (1978), relied on by the majority, is readily distinguishable from this case In Jerr-Dan the respondent's presi- dent not only explicitly recognized that the union had achieved majority status, but also agreed to meet 4 days later for the express purpose of engaging in collective-bargaining negotiations Here, by contrast, Loretta Pao never acknowledged the Union's majority status, and her statement that her husband would "handle the negotiations " is equivocal at best, in- asmuch as it omits any reference to collective bargaining and could mean simply negotiations about the Union's demand My colleagues' reliance on the Board's crucial finding in Jerr-Dan-that the employer had implic- itly recognized the union as the majority representative of its unit em- ployees when it committed itself to enter into collective-bargaining negoti- ations with the union-simply begs the question in this case Because I find that Ms Pao made no such commitment, I conclude that she did not implicitly recognize the Union's claimed majority status Instead, I find this case to be compellingly similar to other decisions in which the Board found that employers had not voluntarily recognized unions See, e g, Ednor Home Care, 276 NLRB 392 (1985) (employer never'expressly said he recognized the union, and did not concede the existence of a majority in favor of the union), Silver Nugget Casino, 268 NLRB 1 (1983) (employer neither agreed to recognize the union on the basis of authorization cards, nor to recognize the union if majority sup- port was demonstrated), Trevose Family Shoe Store, 235 NLRB 1229 (1978) (same) 3 I note also that the evidence concerning Silva's instruction to Union Secretary-Treasurer Salvaressa to withdraw the election petition is self- serving hearsay of no probative value It amounts to bootstrapping in support of the Union's assertions as to voluntary recognition APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain collectively with Automobile Salesmen's Union Local 1095, United Food & Commercial Workers International Union, AFL-CIO as the exclusive representative of our employees in the following appropriate unit, regarding wages, rates of pay, hours of employment, and other terms and condi- tions of employment: All full-time and regular part-time motor vehi- cle sales personnel employed by the Employer at its Richmond, California facility; excluding office clerical employees, finance and insur- ance manager, new car sales manager, used car sales manager, outside salesmen, guards,, and supervisors as defined in the Act, and all other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union as the exclusive representative of our employees in the appropriate unit, regarding wages, rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody it in a written agreement. RICHMOND TOYOTA, INC. Diane Sidd-Champion, Esq, for the General Counsel. Charles B. Waud, Esq. (McDowell, Conhain and Associ- ates), for the Respondent. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding in which a hearing was held 6-7 Janu- ary 1986 is based on an unfair labor practice charge filed 18 September `1985 against Richmond Toyota, Inc (Re- spondent) by Automobile Salesmen's Union Local 1095, United Food & Commercial Workers International Union, AFL-CIO (Union), and an amended complaint issued 19 December 1985 against Respondent by the General Counsel of the National Labor Relations Board alleging that Respondent was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act (Act) More specifical- ly, the amended complaint alleges that on 3 September 1985 Respondent recognized the Union as the exclusive collective-bargaining agent of the motor vehicle sales personnel employed by Respondent at its Richmond, California dealership and that about 17 September 1985, in violation of Section 8(a)(5) and (1) of the Act, Re- spondent disavowed its recognition of the Union and has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representa- RICHMOND TOYOTA tive of the aforesaid sales personnel . On 31 December 1985 Respondent filed an amended answer to the com- plaint in which it denied the commission of the alleged unfair labor practices.' On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The setting Respondent, a California corporation , sells and serv- ices new and used motor vehicles at its place of business in Richmond, California. Gordon Pao, its president and sole owner, is not involved in the day-to-day manage- ment of the business . His wife, Loretta Pao, Respond- ent's vice president, is Respondent's general manager and in this capacity is in charge of the day-to-day operations of the business. Respondent's sales manager, office man- ager, parts manager, and service manager report directly to L. Pao. The remaining manager, the finance and insur- ance manager, reports to the sales manager. Respondent's new- and used-car departments, the de- partments involved in this case, are supervised by Theo- dore Foust Jr., Respondent's sales manager. During the period of time material to this case, 15 August through 3 September 19852 these departments employed six sales- persons (Lee Eastman, Anthony Kray, Samantha Wen- droth, Michael Wilbourn, Sherman Rothman, and Eugene Dooley); four outside salespersons (James Coch- run, Ronald Roselius, David Treas, and Ronald Freitas); a finance and insurance manager (Richard Burcina); an- other salesperson (Walter Travis), who in addition to selling motor vehicles assisted the sales manager in cer- tain respects; and two lot boys who moved motor vehi- cles around the used-car lots and did some of the detail work on the new cars. Except for the two lot boys these workers are not represented by any labor organization. The persons who work in Respondent's parts and service departments, as well as the above-described lot boys, are represented by a labor organization and since at least September 1978 have been covered by collective-bar- gaining agreements between that Union and Respondent. On 15 August salesperson Rothman signed and gave to the Union a card that states in effect that by signing the card he was authorizing the Union to represent him for the purposes of collective-bargaining regarding rates of pay, wages, hours of employment, or other conditions of employment. Thereafter on 28 August, after being solic- ited by Rothman, salespersons Kray, Eastman , and Wil- ' In its answer to the amended complaint Respondent admits it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act and meets one of the National Labor Relations Board 's appli- cable discretionary jurisdictional standards Also Respondent admits that the Union is a labor organization within the meaning of Sec. 2 (5) of the Act 2 Unless otherwise specified all dates refer to the year 1985. 135 bourn signed identical cards. They gave their signed cards to Rothman who turned them over to the Union. 2. The Union's demand for recognition On 3 September, shortly after 12 noon, Union Presi- dent Fred Silva and Union Business Representative Yates Kendrick visited Respondent's dealership and spoke to Respondent's vice president and general manager, L. Pao. They stood in the reception area immediately out- side of L. Pao's office and spoke to her through an open window. Silva was the Union's spokesperson. He intro- duced himself and Kendrick and told L. Pao the Union represented a majority of Respondent 's sales personnel. He handed her a letter dated 31 August, addressed to her and signed by the Union's secretary-treasurer Rich Sal- varessa, that stated the Union represented a majority of Respondent's "motor vehicle sales people" and asked L. Pao to recognize the Union as the representative of those workers and to meet with the Union on 12 September at the Union's office at 10 a.m. for the purpose of negotiat- ing a collective-bargaining agreement . The letter con- cluded by stating that "if you have any doubts as to our majority, we are prepared to show the signed authoriza- tion cards to a neutral , disinterested party of your choice." This much of what occurred on 3 September is undisputed. Silva and Kendrick testified that when L. Pao finished reading the letter, she asked in effect whether the Union could prove it represented a majority of Respondent's salespersons, and when Silva answered in the affirmative, L. Pao pointed to the posted salespersons' licenses issued by the State of California to its workers, and told Silva that those were her salespersons. Posted were the sales- persons' licenses of 10 persons: Dooley, Eastman, Kray, Rothman, Wendroth, Wilbourn, Roselius, Burcina, Foust, and Travis. Silva testified that as L. Pao read off the names from the posted licenses that she identified Foust as the sales manager, Burcina as the finance and insurance manager, Roselius as an outside salesperson who brought a sales prospect into the dealership only once in a great while, and Travis as another sales manag- er.3 Kendrick testified that as L. Pao read off the 10 names she identified Foust as the general sales manager, Travis as the assistant manager or used-car manager,4 Burcina as the finance and insurance manager, and Rose- lius as an outside salesperson , and the other six persons whose licenses were posted as regular salespersons. Silva and Kendrick further testified that when L. Pao finished naming and identifying the persons whose sales licenses were posted at the Company's premises, Silva told her the Union had proof that it represented a majority of the Company's salespersons and if they could go to a more private place he would show L. Pao the proof. L. Pao responded by stating she was interested in seeing the 8 Silva later in his testimony stated that L Pao identified Foust as the new-car manager and Travis as the used-car manager. 4 I note that when Kendrick copied Travis' name on the back of a union business card as L. Pao read it off, that he wrote beside Travis' name that Travis' position was "Asst Mgr " He did not write that Travis was a used-car manager. 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union's proof and escorted Silva and Kendrick to a meeting room located across from her office. Silva and Kendrick testified that when they entered the meeting room Silva placed the four union authoriza- tion cards which, as decribed supra, had been signed by salespersons Rothman, Kray, Eastman, and Wilbourn on a table in front of L. Pao, who picked up each card Silva testified L Pao stated she recognized the signatures of the card signers and also commented that Rothman had witnessed the signatures on three of the cards, but stated she did not recognize the signature of the person who witnessed Rothman's card, whereupon Kendrick identified that signature as his Kendrick testified that L Pao stated she noticed that the signatures on three of the cards had been witnessed by Rothman and the other by a person she did not know, whereupon Kendrick identi- fied his signature Silva testified that when L Pao finished looking at the authorization cards he told her this was the proof that the Union represented a majority of the salespersons and they would like to meet with her on 12 September. Silva further testified L Pao responded by stating she would not be able to meet with him on 12 September because she had a previous scheduled commitment on that date, that she did not know anything about negotiations, and her husband, Gordon Pao, would "handle the negotia- tions" and contact Silva Kendrick testified that when L. Pao finished looking at the,cards she told Silva, "just she would not be involved in any negotiations, that her hus- band, Gordon, would take care of that." (Tr. 268.) L Pao's description of what took place when she met on 3 September with the union officials differs from Silva's and Kendrick's above-described testimony in sev- eral significant respects A summary of her testimony fol- lows. L. Pao testified that after briefly looking at the letter that Silva had given her, she then questioned the Union's claim that it represented a majority of the Company's salespersons and that Silva responded by pointing to the posted salespersons' licenses and asked if they were the Company's salespersons. When L. Pao answered in the affirmative, Silva questioned her about each licensee. L. Pao testified she told him Foust was the sales manager; Burcina was the "F&I man"; Travis was a salesperson who occasionally assisted the sales manager in some of his administrative duties; and Roselius was an outside salesman She also told Silva that there were other out- side salespersons employed by the Company who kept their licenses on their person because they were outside salespersons, and identified David Treas and Ronald Freitas as being in this category. Silva at this point told L. Pao that the Union had proof it represented a majori- ty of Respondent's salespersons and that he would be happy to show this proof to L Pao, that he said was in the form of union authorization cards L. Pao responded by stating she did not believe the Union had such proof and asked to see it, whereupon Silva suggested they go to a more private area, and L. Pao took Silva and Ken- drick to a meeting room near her office. L Pao testified that when they entered the meeting room Silva lay the four union authorization cards signed by Rothman, Kray, Eastman, and Wilbourn on the table, she looked at them, observed who signed them, and questioned the one signature on the cards that she did not recognize, Kendrick's. L. Pao initially testified, when questioned by counsel for the General Counsel, that after looking at the cards, "I said that I did not believe this [referring to Silva's claim that the Union represented a majority of the salespersons] This is something my hus- band would have to deal with because I have no juris- diction over this " And gave Silva her husband's tele- phone number and told Silva "he must reach him to dis- cuss any such matters." Later, when questioned by Re- spondent's counsel, L. Pao testified that after looking at the union authorization cards, she told Silva, "I cannot deal with this I do not handle these matters This is something you will have to discuss with my husband. I don't have time for this. I just returned from vacation and I have to run the store," and gave Silva her hus- band's telephone number and stated, "you will have to discuss this with Mr. Pao because I do not handle this at all 11 As indicated supra, L. Pao's testimony of what took place on 3 September conflicts sharply in certain signifi- cant respects with Silva's and Kendrick's testimony. I credit Silva's and Kendrick's testimony and discredit L. Pao's because Silva's and Kendrick's testimonial demean- or was good when they testified about the 3 September meeting, whereas L Pao's demeanor was poor In addi- tion Silva's and Kendrick's descriptions of the 3 Septem- ber meeting were mutually consistent in significant re- spects, whereas L. Pao's testimony in certain significant respects does not jibe with the Respondent's statement of position submitted to the Board's Regional Office.5 3. The events postdating the Union's 3 September demand for, recognition On 3 September L Pao, at the end of the workday, took the Union's above-described letter demanding rec- ognition and bargaining home to her husband, who she testified subsequently took the letter to an attorney She testified she turned the matter over to her husband be- cause "I've not been exposed to this. I had no knowledge of what to do with anything It's just not my baliwick at all " She further testified that as Respondent's general manager in charge of the day-to-day operation of the dealership, she was not involved in the administration of 5 L Pao testified she told Respondent's lawyer what took place at the 3 September meeting between herself and the union officials and that the description she gave the lawyer was identical to her testimony Subse- quently, on 9 October, Respondent's lawyer submitted a statement of Re- spondent's position to the Board's Regional Office regarding the Board's investigation of the charge filed by the Union in this case Respondent's statement of position, contrary to L Pao's above-described testimony given in this proceeding, states Silva showed L Pao the union authoriza- tion cards at the very beginning of the meeting immediately after intro- ductions had been made and, contrary to L Pao's testimony, also states it was only after L Pao looked at the cards that she showed the union offi- cials the posted salespersons' licenses In addition the Respondent's state- ment of position states that after looking at the cards L Pao told the union officials she did not know whether the cards had actually been signed by the Company's employees, whereas when asked in this pro- ceeding what she did when the cards were shown to her, L Pao testi- fied "looked at them Noticed who had signed them Questioned the sig- nature I didn't recognize [referring to Kendrick's signature] And that was the extent of it " RICHMOND TOYOTA 137 the collective-bargaining contract covering the service and parts departments and was not involved in the nego- tiation of the contract inasmuch as her husband, who is Respondent's sole owner and president , assumes those re- sponsibilities. On 3 September, somewhere about 2 p.m., the Union's secretary-treasurer Salvaressa filed a representation peti- tion in Case 32-RC-2248 with the Board's Regional Office, in which the Union sought an election in a unit of Respondent's motor vehicle salespersons. The petition stated that the Union had requested recognition on 3 September, and the space in the petition stating "employ- er declined recognition on or about (if no reply received so state)" was left blank. Silva testified it was standard procedure for the Union to simultaneously demand recognition from an employer and file a repre- sentation petition with the Board when it felt it had re- ceived authorization cards from a majority of the em- ployees it was seeking to represent, and further testified that, consistent with this practice, Salvaressa on 3 Sep- tember was on his way to the Board's Regional Office in Oakland, California, when Silva and Kendrick were handing L. Pao the Union's demand letter. On 3 September, later in the afternoon, or early on 4 September, Silva spoke to Salvaressa about Silva's 3 Sep- tember meeting with L. Pao . When questioned during this proceeding about his conversation with Salvaressa concerning the 3 September meeting, Silva testified: I informed Rich Salvaressa that L. Pao had viewed the authorization cards . . . that she looked at them, wrote the names down and that we had the majority vote, the majority of the people there by her looking at the proof that we had there. I says now I don't think it's necessary to go proceed with an election. Let's just check with our attorney and take it from there. Subsequently the Union asked the Regional Director of the Board's Regional Office for permission to withdraw the representation petition it had filed in Case 32-RC- 2248. The Regional Director, by letter to the parties dated 9 September, notified them he had approved the Union's withdrawal request. Silva testified the reason the Union withdrew its representation petition was its belief that a majority of Respondent's salespersons had signed union authorization cards and its further belief that be- cause Respondent had looked at the Union 's authoriza- tion cards, which established the Union's majority status, under these circumstances, the Union did not have to go to an election in order for Respondent to be obligated to recognize the Union as its salespersons ' exclusive collec- tive-bargaining representative. About 14 or 15 September Silva telephoned L. Pao and told her that he had expected to either hear from her or the Company on 12 September, but had not. L. Pao replied by stating "don't you remember? Gordon is going to talk to you. I had a business appointment and I was busy on the 12th." Silva told her that Gordon Pao had not contacted him and asked where he could contact Pao. L. Pao gave Silva Gordon Pao's telephone number. During the next several days on four or five occasions Silva telephoned Gordon Pao at the phone number that L. Pao had furnished him, and which was apparently the phone number of another motor vehicle dealership owned by Gordon Pao. Silva left word for Pao, who he was told was away from the premises , to telephone him. Pao never did return Silva's calls , but on 17 September Respondent's labor relations consultant, on behalf of Re- spondent, wrote Silva, among other things , "it is the company's position that the question of representation of the sales employees of [Respondent] by [the Union] would best be resolved through the procedures provided by the National Labor Relations Act. The Company has no intentions of meeting with representatives of [the Union] to discuss matters of alleged representation." 4. The inside salespersons During the time material , Respondent employed six salespersons at its premises selling used and new motor vehicles: Lee Eastman, Anthony Kray, Samantha Wen- droth, Michael Wilbourn, Sherman Rothman, and Eugene Dooley. These six salespersons, who I shall refer to as inside salespersons , spent all of their working time selling new and used motor vehicles and worked under the supervision of Respondent's sales manager. The inside salespersons spent virtually all of their working hours at Respondent's premises selling new and used motor vehicles. They only rarely conducted busi- ness away from the premises. They shared desks with one another, which were located in offices adjacent to the sales floor or on the sales floor itself. They are re- quired to maintain a "work plan ," to check in and out of work daily with Respondent's receptionist, to attend a Saturday sales meeting, and to check the daily inventory of motor vehicles available for sale. The new- and used-car departments are open for busi- ness 7 days a week as follows: 9 a.m. to 7 p.m. on week- days; 9 a.m. to 6 p.m. on Saturdays; and 11 a.m. to 5 p.m. on Sundays. On weekdays the inside salespersons are divided into two shifts ; one shift works 9 a.m. to 1 p.m. and the other 1 p.m. to 7 p.m. Each inside salesper- son gets 1 weekday off from work , but they all must work Saturday. And at the time of the hearing they were required to work every other Sunday. Previously Sunday work had been voluntary, provided there were three volunteers.6 The inside salespersons' wages are based entirely on the commissions they earn from the sale of new and used motor vehicles. If their commission earnings fail to equal what they would have earned if they were paid the hourly minimum wage required by law , Respondent pays them the minimum wage. In addition to their commis- sions the inside salespersons receive vacation and health and welfare insurance benefits , incentive bonuses (spills), and are eligible to use a company demonstrator motor vehicle so long as their driving and sales record meets the Company's requirements. 6 Insofar as Sales Manager Foust's testimony indicates that Sunday work was voluntary at the time of the hearing, I reject it in favor of Travis' testimony that the salespersons rotate Sunday work (Tr. 177.) 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. The outside salespersons In addition to its inside salespersons Respondent em- ploys outside salespersons who, as their classification in- dicates, do not work at Respondent 's place of business, but do all of their selling away from Respondent 's place of business Respondent contends that during the time material it employed four outside salespersons: James Cochrun, Ronald Roselius , David Treas, and Ronald Freitas. In the first week of February 1985 Respondent hired Cochrun, Freitas, and Treas. There is no evidence to show when Roselius was hired . As a matter of fact Re- spondent kept no employment records for Roselius such as a W-4 form, an employment application, a social secu- rity number, or a home address or telephone number. Also Respondent's report of wages paid to employees for the quarter ending 30 September 1985 that was submitted by Respondent to the State of California pursuant to the unemployment insurance code, and that listed all the em- ployees who worked for Respondent during that period, even though they did not earn any wages, failed to list Roselius' name . This report also failed to list Cochrun's name. No explanation was offered by Respondent for the omission of Roselius' and Cochrun's names from this report. I also note that the names of Cochrun, Roselius, and Freitas were not listed by Respondent in its record of wages paid to all salesmen during August 1985 even though it is clear Respondent listed the names of em- ployees regardless of whether they earned any wages during the month in question. It is undisputed that Treas, Freitas, and Roselius worked for Respondent only in their spare time. Treas owned and operated his own business . Freitas and Rose- lius worked full time for other employers. Although no one testified that Cochrun worked for another employer or operated his own business, it is a fair inference that he did one or the other because there is no evidence of his ever earning a single penny during the several months he was allegedly employed by Respondent. The outside salespersons are paid by commission that is computed on the same basis as the inside salespersons' commission . The record reveals that as of the date of the hearing in this case , 6 January 1986, the outside salesper- sons during their employment with Respondent sold the following number of motor vehicles : Freitas sold two, one late in March and the other late in May ; Treas sold two, I late in February and the other early in March; there is no evidence Cochrun ever sold a single motor vehicle, the record shows that Roselius' last check from Respondent for selling a motor vehicle was dated No- vember 1984 and there is no evidence that since that date he has sold another motor vehicle. The outside salespersons have no contacts with the inside salespersons . The inside salespersons as described supra, do all of their work at Respondent 's place of busi- ness, whereas the outside salespersons, who have neither a desk or office at the Respondent's place of business, virtually never visit there. There is evidence that outside salespersons worked with the inside salespersons on one isolated instance in February during a special motor ve- hicle show held at a local coliseum.' The terms and conditions of employment of the out- side salespersons differ substantially from those of the inside' salespersons . As described supra, the inside sales- persons are required to work a fixed schedule of hours, whereas the outside salespersons can work or not work as they see fit, and Respondent does not require them to work a certain minimum number of hours As L Pao testified, "they [referring to the outside salespersons] sell whenever they want to sell , as frequently or as slow as they want, that's up to them." The inside salespersons are required to attend the weekly sales meeting, whereas the outside salespersons are not, and in fact do not attend these meetings . The inside salespersons receive a mini- mum wage if their commissions do not reach the level of the minimum wage required by law , whereas the outside salespersons do not receive a guaranteed minimum wage The outside salespersons do not receive the inside sales- persons' vacation and medical insurance benefits , nor are they eligible, like the inside salespersons, to use a compa- ny demonstrator motor vehicle or to receive incentive bonuses (spiffs). 6. Finance and Insurance Manager Richard Burcina As indicated supra, Respondent's finance and insurance manager , called the F&I manager, reports to the sales manager as do the salespersons.8 During the time materi- al to this case, Richard Burcina occupied the position of F&I manager. After the sales manager approves a sale , a salesperson escorts the customer into the office of the F&I manager where the F&I manager prepares all the paperwork con- nected with the sale, investigates the customer's credit worthiness , and assists the customer in financing the pur- chase. In investigating a customer's credit worthiness, the F&I manager takes the information contained in the customer's'credit application and enters it into a comput- er, and in this way learns about the customer's credit his- tory. After which he confers with the sales manager and then notifies the customer whether the customer's credit is good enough for financing and/or to take the delivery of the motor vehicle before bank approval. Regarding the financing of the customer's purchase, the F&I man- ager speaks to representatives of banks and other finan- cial institutions in an effort to arrange for the customer's financing 9 Respondent expects its F&I manager to serve r I reject L Pao's testimony that "Roselius comes in and out of the premises quite often " She was unable to support this conclusionary state- ment with specifics Quite the opposite, she admitted she had no inde- pendent recollection of Roselius ever performing any work for Respond- ent since November 1984 Also her testimony was inherently incredible given the fact that there is no evidence Roselius has sold a single motor vehicle for Respondent_ since November 1984 1 also note that inside salesperson Rothman testified that during the approximately 6 months he worked for Respondent in 1985, he never once observed the four alleged outside salespersons , including Roselius , visit the Respondent's premises 8 The record reveals, however, that for accounting purposes the Re- spondent places the F&i manager and the salespersons in different de- partments 9 L Pao testified that when Burcina was employed as F&I manager he spent most of his working time arranging customer financing with banks Continued RICHMOND TOYOTA as its "public relations officer" in his dealings with banks and other financial institutions , presumably to develop a good relationship with them so it will be easier for Re- spondent to assist its customers in financing their pur- chases. Besides preparing all the paperwork connected with the sales of motor vehicles, investigating the customers' credit worthiness, and assisting the customers in getting financing, the F&I manager attempts to sell customers a number of items connected with the purchase of their motor vehicles, as follows: An extended warranty; a pro- tection package that includes undercoating, fabric and paint protection; motor vehicle insurance; disability in- surance; and a burglar alarm system . Respondent's sales- persons do not sell these items nor do they perform any of the F&I manager's other above-described duties. Con- versely the F&I manager does not perform any of the salespersons' duties.' ° When the F&I manager is absent from work all of his duties are taken over by the sales manager . The record reveals that because none of the salespersons are quali- fied to perform the F&I manager's duties, that Respond- ent's sales operation comes to a virtual standstill on those very rare occasions when both the F&I manager and the sales manager are away from the dealership at the same time. F&I Manager Burcina worked 10 to 15 hours a week more than the salespersons . He was also compensated differently than the salespersons. Respondent paid him a monthly guaranteed salary of $1500 plus a commission for his sales of warranties, protection packages, insur- ance, and burglar alarms . He was also paid approximate- ly $100 a month as a gas allowance. The salespersons did not receive a guaranteed monthly salary or a gas allow- ance." Also, due to a shortage of new cars, the demon- strators assigned by Respondent to the salespersons for their personal use were either trucks or used cars, where- as Burcina's demonstrator was either a high -priced new sedan or a new sports car. Unlike the salespersons, all of whom share offices and/or desks, the F&I manager has his own office. Also the F&I manager has keys to Respondent's facility. The and other financial institutions. She further testified that the most impor- tant factor used by Respondent to evaluate the F&I manager 's job per- formance was his performance in arranging credit for customers, whereas the most important factor used by Respondent to evaluate a salesperson's job performance was the number of motor vehicles sold and the salesper- son's gross earnings I also note that F&I Manager Burcina was required by Respondent to attend a finance school during his employment, at Re- spondent's expense, something not required of the salesperson. 1° I have considered that F&I Manager Burcina and Sales Manager Foust were named in the insider program advertisements as the repre- sentatives of Respondent to be contacted by consumers who were eligible to purchase a motor vehicle under that program. Foust, however, testi- fied that he handled 90 percent of the customer contacts made in re- sponse to the insider program advertisements, and further testified in effect that neither himself or Burcina received any of the commissions from the sales of the motor vehicles sold pursuant to the insider program, because prospective buyers who responded to those advertisements were referred to Respondent's salespersons who, if they succeeded in making sales, received the commissions. I also note there is no evidence of Bur- cina ever receiving a commission for selling a motor vehicle . As a matter of fact Foust testified Burcina did not receive commissions for selling motor vehicles. (Tr 392, LL. 25 to 393, L 7 ) 11 The only other persons who received a gas allowance were the sales manager and the office manager. 139 only other persons with keys to the facility are L. Pao, the sales manager, the office manager, the service man- ager, and the parts manager. I also note in passing that when L. Pao on 19 August wrote F&I Manager Burcina about an unexcused absence of several days, that she, among other things , told him that because he was one of the "management employees" it was especially mandatory for him to keep in daily con- tact with L. Pao personally when he was absent from work. The F&I manager substitutes for the sales manager when the sales manager is absent from work due to a day off, vacation, illness, tardiness, or an early depar- ture.' 2 Also, when the sales manager is present at the dealership and it is extremely busy in the sales depart- ment, or when the sales manager is, away from the sales area appraising a motor vehicle , the salespersons go to the F&I manager for his approval of the deals they have made with customers. Regarding the extent of F&I Manager Burcina's au- thority when he substituted for Sales Manager Foust, the record contains the following evidence. Foust testified that in his absence from the dealership or when he was busy appraising a motor vehicle, Burcina took "charge" of the sales operation and "step [ped] into [Foust's] shoes." Salesperson Rothman testified, "When I say in charge [referring to his previous testimony that Burcina was in charge in Foust's absenses] he [Burcina] had au- thority to so call desk the deals and make the ultimate decisions as to whether or not a car was sold, at which price it was sold . . . ." Rothman, on this subject, fur- ther testified that when Foust was not present "[Burcina] was in charge of the store, meaning in charge of what- ever the salesmen did" and exercised "exactly the same authority" as Foust. There is also evidence that when Burcina substituted for Foust the salespersons came to Burcina for permission to leave work early . Also there is evidence that on one or two occasions, apparently when Burcina was substituting for Foust, Burcina verbally rep- rimanded salespersons for the way they handled their job and threatened to discharge them . Finally it is undis- puted that when Burcina substituted for Foust on a Sat- urday, which occurred at least three or four times during Burcina's employment, Burcina conducted the weekly salespersons' meeting in place of Foust. 7. Walter Travis Walter Travis began to work for Respondent late in September or early October 1984. Travis was employed prior to his employment with Respondent as used-car manager by several different motor vehicle dealerships for approximately 22 years. Respondent at the time of his employment did not employ a used-car manager. The sales manager was in charge of both the new- and used- 12 During Burcina's employment, Foust was off work every other Sunday and was generally off work I day during the week and in some instances was late for work and left early and was absent on a vacation This finding is based on salesperson Rothman's testimony To the extent Sales Manager Foust's testimony conflicts with Rothman 's, I have cred- ited Rothman's testimony because, when they testified about this subject, Rothman's testimonial demeanor was better than Foust's 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD car departments. Respondents had not employed a used- car manager for approximately 6 years because it felt that the volume of its used-car business was insufficient to justify employing a used-car manager Although Travis' employment application submitted by him to Respondent set out his past experience as used-car manager, Travis in his application stated that he was applying for "sales" work Travis and Sales Manag- er Foust testified that Foust hired Travis as a salesperson to do sales work Sherman Rothman, who was employed by Respondent from 13 March 1985 to 23 September 1985 as a salesperson, testified Travis and Foust told him that Travis was Respondent's "used car manager." Travis and Foust testified Travis did not occupy that po- sition. They admitted, however, that in addition to work- ing as a salesperson, Travis, unlike any of the other sales- persons, assisted Sales Managei Foust, as follows He op- erated the "locator" so Respondent's salespersons could locate all the unsold new cars in stock, he conducted a monthly inventory of all motor vehicles in stock, he made sure the service department reconditioned the new and used motor vehicles scheduled to be reconditioned; he dealt with wholesalers concerning the purchase and sale of used cars, he appraised customers' trade-ins; and he substituted for Sales Manager Foust when both Foust and the F&I manager were absent A more detailed de- scription of these duties follows. The only evidence concerning Travis' operation of the "locator" is his testimony that "in the mornings [Foust] will give me a list to run through the computer so we can locate new cars for everybody " The only evidence concerning Travis' duty of taking a monthly inventory is his testimony that once each month he goes out and counts all the cars and notes their "price" and "num- bers" and gives this information to Foust. And, regard- ing his substituting for the sales manager when the Sales Manager and the F&I manager are both absent, this hap- pens very rarely. For when Sales Manager Foust and the F&I manager are both absent at the same time, the deal- ership's sales business comes to a virtual standstill be- cause only Foust and the F&I manager know how to op- erate the F&I manager's computer, thereby making it im- possible for salespersons to sell motor vehicles on credit. The result is that both Foust and the F&I manager are almost never absent from the dealership at the same time Regarding Travis' dealings with the wholesalers con- cerning the sale or purchase of used cars, the evidence is as follows. L Pao testified Respondent primarily pur- chases its used cars as trade-ins from customers who pur- chase new cars, but there are wholesalers who frequently visit Respondent's dealership to sell and buy used cars She also testified that, although Sales Manager Foust normally personally deals with these wholesalers, some- times Travis deals with them once or twice a week when Foust is busy, but she testified if Travis does business with the wholesalers it is at Foust's direction. Travis tes- tified when he deals with a wholesaler who wants to sell used cars to Respondent, he writes down all the perti- nent information and then discusses the wholesaler's pro- posal with Foust, who decides whether to make the pur- chase. Foust and Travis also testified in effect that each instance when Travis is involved in negotiations with the wholesaler for the sale of a used car he follows Foust's instructions when quoting the sales price Rothman, a salesperson employed by Respondent during the time material, testified if anyone came to the dealership with a used car to sell, the salespersons escorted them to Travis He further testified that Rothman personally observed Travis quote them a price for their used cars without first consulting with Foust, after first checking the price quoted for the cars in the automobile industry's blue- book. Regarding Travis' role in appraising trade-ins, the evi- dence is as follows. In appraising the value of the trade- ins, the appraiser usually views the motor vehicle, drives it for a few blocks, and checks its value in the automo- bile industry's bluebook. Travis testified he appraises some of Respondent's customer trade-ins, that Foust and, the F&I manager do the appraising, and that Travis does it when they are absent L Pao testified that one of Foust's duties was to appraise customer trade-ins. Foust testified that he and the F&I manager appraise the trade- ins, that Travis does it only occasionally, and Travis always consults with him before setting a price for a trade-in Rothman, one of Respondent's salespersons during the time material, testified Travis, not Foust or the F&I manager, was the person who usually appraised the trade-ins and only when Travis was busy did either Foust or the F&I manager appraise trade-ins Foust, ac- cording to Rothman, specifically told him, "when you have to get a car appraised let Walt [Travis] appraise it." Rothman also testified he personally observed when Travis appraised trade-ins that Travis priced the car after examining it, driving it, and checking its bluebook value, and did not check with Foust before completing the ap- praisal Travis and Foust testified in effect that Travis spent approximately 25 percent of his working time assisting Sales Manager Foust, as described above, and spent the remaining 75 percent of his working time on the sales floor of the dealership with the other salespersons selling new and used motor vehicles 13 Rothman, a salesperson employed during the time material, testified Travis did not compete with Respondent's other salespersons for sales, but almost all of his sales were either house deals given to him by Foust or made under the Respondent's insider program A house deal refers to a sale made to a customer who asks for a member of management by name, but is referred by management to one of the sales- persons. The insider program is a sales program adver- tised by Respondent that is available to members of auto- mobile clubs and credit unions and that offers the eligible customers a particular new car model at a specified per- centage above invoice price. Rothman testified Respond- ent's salespersons, except for Travis, were not allowed to sell motor vehicles to insider program or house deal cus- 13 During 1985 Travis sold 124 motor vehicles, of which 7 sales were split with another salesperson, and earned $29,760 in sales commissions and sales-related incentive bonuses (spiffs) When his guaranteed $6000 a year salary, paid to him for assisting the sales manager, is taken into ac- count, it reveals that approximately 83 percent of Travis' wages were de- rived from his sales Rothman, who considered himself a good salesper- son, testified that during the approximately 6 months Rothman was em- ployed by Respondent, he sold approximately 50 motor vehicles RICHMOND TOYOTA tomers, but were required to refer them to Sales Manag- er Foust, and Foust in turn usually referred these cus- tomers to Travis. The record shows since about Septem- ber 1985 customers eligible to purchase a motor vehicle under the insider program have been instructed by Re- spondent's advertising to contact either Foust or Travis.14 Travis testified he sells motor vehicles to cus- tomers under the insider program and further testified that the only time any of the other salespersons can sell a motor vehicle under this program is when both himself and Foust are absent from the dealership or busy. There is no evidence of the percentage of Travis' sales that re- sulted from his sales of motor vehicles under the insider program. Foust testified that Foust handles 90 percent of the customers who contact the dealership in response to the insider programs' ads, and testified he distributes these customers equally among all the salespersons, and that Travis receives no more of these referrals that any of the other salespersons. And regarding those house deals that Foust does not handle himself, he testified he distributes them equally among all the salespersons and Travis receives no more than any of the other salesper- sons. The record establishes that while Travis works ap- proximately the same number of hours each week as the other salespersons, his work schedule differs significant- ly.15 He is scheduled to work 9 a.m. to 5 p.m., Monday through Friday. 16 He is not obligated to work either Saturday or Sunday and it is only on a rare occasion that he visits the dealership on a Saturday and only then to meet a particular customer who could not arrange to meet with him during a weekday. The other salespersons are divided into two shifts during the weekdays; one shift works 9 a.m. to 1 p.m. and the other works 1 p.m. to 7 p.m. Each salesperson, other than Travis, is off work 1 day during the weekdays, they must work Satur- day, and they rotate working every other Sunday. Be- cause Travis is not required to work Saturday, he is not required to attend the weekly sales meeting held on that day, whereas all the other salespersons are expected to attend. Like the other salespersons Travis shares a desk with another salesperson . He is paid the same sales commis- sion as the others and also receives the same incentive bonus benefits (spiffs) and vacation and health and wel- fare benefits as the other salespersons . Unlike the other salespersons, however, he receives a monthly $500 guar- anteed wage that is paid to him for the time he spends assisting the sales manager, as I have described above. Also unlike the other salespersons who had been as- signed a company demonstrator, Travis continually uses different used cars as his demonstrator vehicle, whereas 14 Before September the ads instructed customers to contact either Foust or the F&I Manager Burcina Travis' name was substituted for Burcina's when in August Burcina absented himself from work due to an injury 15 Respondent posts a work schedule solely for its salespersons, which it changes every few weeks Travis' name was not included on the sched- ule posted during the time of the hearing in this case Foust , who was not able to explain the omission of Travis' name, testified Travis ' name had been included on the schedules posted in the past 15 Travis on his own volition generally starts to work at 8 30 a m 141 the other salespersons assigned to drive such cars use the same one. B. Discussion and Ultimate Findings The complaint alleges Respondent refused to bargain within the meaning of Section 8(a)(5) of the Act when on 15 September it notified the Union by letter it did not intend to recognize and bargain with the Union and that the question of whether Respondent 's salespersons de- sired union representation would be best resolved through the Act's election procedures. The theory of the complaint is Respondent's vice president and general manager, L. Pao, voluntarily recognized the Union as the collective-bargaining representative of the Compa- ny's salespersons when she met, on 3 September, with Union Officials Silva and Kendrick; therefore, when Re- spondent on 17 September refused to meet and bargain with the Union, it violated Section 8(a)(5) and (1) of the Act. It is settled that, under Section 9(a) of the Act, a valid bargaining relationship may arise not only as a result of Board certification of a union's election victory but also "from voluntary recognition of a majority union." Keller Plastic Eastern, 157 NLRB 583, 586 (1966); NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978). The key to voluntary recognition is the "commit- ment of the employer to bargain upon some demonstra- ble showing of majority . . . . Once that commitment [is] made, [the employer cannot] unilaterally withdraw its recognition and to do [is] a violation of the Act." Jerr-Dan Corp., 237 NLRB 302, 303 (1978), enfd. 601 F.2d 575 (3d Cir. 1979). "Evidence that an employer has commenced bargain- ing or has taken other affirmative action consistent with its recognition of the Union aids in resolving the eviden- tiary question as to whether recognition was granted." Jerr-Dan Corp., 237 NLRB 302, 303 (1978), citing Brown & Connolly, Inc., 237 NLRB 271, 275 (1978). Whether or not the employer has voluntarily granted recognition is, of course, a question of fact. The 3 September meeting between L. Pao and the union officials that the General Counsel contends resulted in Respondent 's voluntary rec- ognition of the Union, has been described in detail supra. The 3 September meeting and the material events that post dated the meeting are briefly summarized, as fol- lows.117 On 3 September Union President Silva and Union Representative Kendrick visited L. Pao, Respondent's vice president and general manager, at Respondent's premises. Silva gave L. Pao a letter addressed to her from the Union's Secretary-Teasurer Salvaressa, which requested L. Pao to recognize the Union as the collec- tive-bargaining representative of the Respondent's "Motor Vehicle Salespeople" and to meet with the Union on 12 September for the purpose of negotiating a collective-bargaining agreement. L. Pao, after she read the letter, asked whether Silva could prove the Union 17 As I have found supra, Union Officials Silva's and Kendrick's testi- mony about the 3 September meeting was more credible than L Pao's testimony. The summary of facts, unless otherwise noted, is based on a composite of Silva's and Kendrick's testimony. 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD represented a majority of Respondent's salespersons and, in this respect, pointed to the 10 posted salespersons' li- censes. She informed Silva that these 10 persons were Respondent's salespersons. When L. Pao finished naming and identifying the 10 persons , Silva stated the Union had proof it represented a majority of the Company's salespersons and offered to show L. Pao the proof. L. Pao replied she was interested in seeing the Union's proof and, after moving to a more private location, Silva showed L. Pao the authorization cards signed by sales- persons Eastman, Kray, Rothman, and Wilbourn. As she looked at the cards, L. Pao stated "she recognized the signatures" of the card signers.' 8 When L. Pao finished looking at the cards she did not respond to Silva's claim, voiced before she looked at the cards, that the Union en- joyed majority status. Rather, her only response was to say she would be unable to meet with Silva on 12 Sep- tember because of a prior engagement , that she did not know anything about negotiations , and that she "would not be involved in any negotiations; that, her husband Gordon would take care of that" and he would contact the Union. This ended the meeting. Later on 3 September or early 4 September Silva spoke with the Union Secretary-Treasurer Salvaressa and recommended the Union withdraw the representation pe- tition that Salvaressa on 3 September had filed with the Board, on behalf of the Union , seeking a Board-conduct- ed representation election among Respondent's salesper- sons. As his reason for advising Salvaressa to withdraw the petition, Silva explained to him it was now unneces- sary for the Union to proceed to an election because L. Pao had looked at the Union 's authorization cards. Sub- sequently, the Union withdrew the representation peti- tion because, as Silva testified, the Union believed Re- spondent was legally obligated to recognize the Union as the collective-bargaining representative of the salesper- sons, even absent a representation election, because L. Pao had looked at the four authorization cards that es- tablished the Union's majority status. On 3 September L. Pao's failure, after examining the authorization cards, to question the Union's majority status or to refuse to recognize the Union, when viewed in the context of her 3 September statements that her husband would "take care" of or "handle" the 12 Sep- tember negotiation meeting and would contact the Union about the meeting, warrants the finding that L. Pao rec- ognized the Union, the General Counsel argues. I do not agree. I am of the view that the record as a whole fails to establish Respondent recognized the Union as the col- 1s Silva testified that as L Pao looked at the cards she stated "she rec- ognized the signatures" of the card signers and also observed that card signer Rothman signed three of the cards as a witness, and that she did not recognize the signature of the person (Kendrick) who witnessed Rothman's signature Kendrick testified L Pao stated that the signatures on three of the cards had been witnessed by Rothman and also stated she did not know the person (Kendrick) who witnessed Rothman's card I have credited Silva's above description because, as I have found supra, he impressed me as a credible witness and even though his testimony in this particular respect was not fully corroborated by Kendrick 's, Ken- drick's testimony does not contradict Silva's I also note L Pao testified to the effect that when she looked at the union cards on 3 September, the only signature that she "didn't recognize" was Kendrick's. (Tr 428, LL 6-9.) lective-bargaining representative of Respondent's sales- persons. My reasons are as follows. L. Pao did not tell the union officials Respondent rec- ognized the Union or say words to that effect. Nor did she acknowledge to them that the four salespersons, who signed the authorization cards the Union was relying on to establish its majority status, constituted a majority of the bargaining unit employees . Quite the opposite, when confronted by the Union's claim that it represented a ma- jority of the Company's salespersons, L. Pao indicated to the union officials, by pointing to the posted salesper- sons' sales licenses, that as far as she was concerned the appropriate unit consisted of the 10 persons whose sales licenses were publicly posted in the dealership . When she identified and discussed these 10 individuals with the union officials, she did not indicate that any one of the persons whose licenses were posted should not be includ- ed in the appropriate unit.19 Also relevant in determining whether L. Pao extended recognition to the Union or otherwise committed Re- spondent to bargain with the Union is the undisputed fact that she was ignorant of labor relations matters and was not responsible for either the negotiation or adminis- tration of Respondent's current union contract covering the service and parts departments. L. Pao's husband, Re- spondent's owner and president, was the person responsi- ble for handling such matters. Considering (1) L. Pao did not expressly recognize the Union as the salespersons' collective-bargaining repre- sentative, (2) L. Pao did not acknowledge the Union's majority status, (3) L. Pao's husband, Respondent's owner and president, was the company official responsi- ble for handling all of Respondent's labor relations mat- ters including the negotiation of collective-bargaining contracts, and (4) L. Pao had never previously involved herself in Respondent's dealings with labor unions; L. Pao's 3 September statements that her husband would "take care" of or "handle " the 12 September negotiation meeting requested by the Union and would contact the Union about the meeting, does not warrant the inference that by making these statements L. Pao implicitly ac- knowledged the Union's majority status or recognized the Union as the salespersons' collective-bargaining rep- resentative. In addition to establishing that it was not L. Pao's intent to recognize the Union as the salespersons' collec- tive-bargaining representative when she made the afore- said 3 September statements , the record also reveals the union officials did not believe L. Pao had extended rec- ognition to the Union or had otherwise committed Re- spondent to bargain with the Union as the salespersons' collective-bargaining representative . For, when less than 24 hours after his 3 September meeting with L. Pao, Union President Silva spoke to Union Secretary-Treasur- er Salvaressa about withdrawing the representation peti- 19 As a matter of fact there is no evidence that the union officials in speaking with L Pao ever specifically addressed the subject of which persons were to be included or excluded from the bargaining unit. The extent of their comments on this subject was the cryptic statement that in the Union's opinion the four authorization cards constituted proof of the Union's majority status. RICHMOND TOYOTA tion filed by the Union with the Board, Silva explained to Salvaressa that Respondent was legally obligated to recognize the Union as the collective-bargaining repre- sentative of the salespersons, even absent a representation election, because L Pao had looked at the four authori- zation cards that established the Union's majority status He did not tell Salvaressa that L. Pao by virtue of her conduct had recognized the Union as the salespersons' collective-bargaining representative or that she had agreed her husband would commence contract negotia- tions with the Union. I am convinced if L. Pao's state- ments made to the union officials on 3 September had been reasonably calculated to cause the union officials to believe she had extended voluntary recognition to the Union and agreed that on 12 September collective-bar- gaining negotiations would begin, that Silva would have reported this information to Salvaressa, or words to that effect. 143 All the foregoing considerations, taken in their totality, persuade me the General Counsel has failed to prove Re- spondent recognized the Union 20 I, therefore, shall rec- ommend the dismissal of the complaint in its entirety.21 [Recommended Order for dismissal omitted from pub- lication.] 20 I have considered Jerr-Dan Corp, 237 NLRB 302 (1978), relied on by the General Counsel, and have also considered Travelways, 267 NLRB 1332 (1983) These cases are factually distinguishable in significant re- spects from the instant case I also note that in Travelways the Board ma- jority specifically stated they were adopting the administrative law judge's finding that the respondent employer therein violated Sec 8(a)(5) and (I) of the Act, pro forma, in the absence of exceptions 21 Because my conclusion that the record does not establish that Re- spondent recognized the Union as the representative of the unit employ- ees, I have not considered Respondent's alternative defense that the Union, on 3 September, did not represent a majority of the unit employ- ees inasmuch as included in the appropriate unit were the outside sales- persons, F&I Manager Burcina, and the sales manager's assistant Travis