Apple Tree Chevrolet, Inc.

66h DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apple Tree Chevrolet, Inc. and Sheet Metal Work- ers International Association, Local No. 66, AFL-CIO. Cases 11-CA-6914, 11-CA-6962, 11-CA-7113, and 11-RC-4300 August 27, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E On August 25, 1978, the National Labor Rela- tions Board issued a Decision and Order' in the above-entitled proceeding, finding that Respondent had violated Section 8(a)(1) of the Act by unlaw- fully soliciting employee grievances; announcing various employee benefits immediately prior to the representation election; threatening reprisals against employees should they support the Union; and co- ercively interrogating employees concerning their union sympathies, and that Respondent had violat- ed Section 8(a)(3) and (1) of the Act by discharg- ing certain employees. The Board further found that the Union represented a majority of the em- ployees in an appropriate unit by January 20, 1977, and concluded that the nature and pervasiveness of Respondent's unfair labor practices fatally impeded the election process and warranted the issuance of a bargaining order requiring Respondent to recog- nize and bargain with the Union as of January 20, 1977, the date on which Respondent embarked upon its course of unlawful conduct. In the representation proceeding, which was consolidated for hearing with the complaint, the Board affirmed the Administrative Law Judge's finding that Respondent's unfair labor practices also constituted conduct impermissibly affecting the results of the election. It ordered that the chal- lenges to certain employees' ballots be overruled and the ballots opened and counted, and that a re- vised tally of ballots be issued. The Board further ordered that, should the revised tally of ballots show that a majority of votes was cast for the Union, then a certification of representative should issue, but that if the revised tally showed that a majority of votes was not cast for the Union, then the election should be set aside, the representation petition dismissed, and all prior proceedings there- under vacated. Thereafter, the Board petitioned the United States Court of Appeals for the Fourth Circuit for enforcement of its Order. On November 1, 1979, the court issued a decision2 in which it granted en- forcement of the Board's Order relating to the in- 237 NLRB 867 6()8 F.2d 988. 251 NLRB No. 76 dependent violations of Section 8(a)(1), reversed the Board's finding that Respondent violated Sec- tion 8(a)(3) and (1) by discharging employees in order to discourage union activity, and remanded the case to the Board for its consideration of the bargaining order in the light of the results of the representation election. The court deferred consid- eration of the bargaining order issued by the Board until after the result of the representation election had been ascertained, stating that normally it would be expected that the Board would have de- ferred the consideration of the propriety of a bar- gaining order until that time. The Board accepted the remand and invited the parties to submit statements of position with re- spect to the issues raised by the remand. The Gen- eral Counsel and Respondent filed such statements with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The only matter remanded by the court to the Board is the question of whether a bargaining order should issue. Recognizing that the court's opinion is the law of the case, the Board has con- sidered the parties' statements of position in light of the principles set forth by the court, as well as the entire record in this case, and has decided, for the reasons set forth below, to affirm its Order requir- ing Respondent to bargain with the Union upon re- quest. Initially, we note that the court has instructed the Board to consider the bargaining order issue with particular emphasis on whether the Union has lost its majority, focusing quite clearly on the elec- tion as the primary vehicle for determining that question. In the representation proceeding the Re- gional Director for Region 11, pursuant to the Board's Order in Case 11-RC-4300, opened and counted the ballots to which the challenges had been overruled by the Board and issued a revised tally of ballots. That revised tally, which included the challenged ballots of four individuals, Gilley, Bartlett, Baines, and Gillespie, who were found by the Board to have been unlawfully discharged and therefore eligible voters, showed 27 votes for rep- resentation by Sheet Metal Workers International Association, Local #66, AFL-CIO, and 24 votes against representation by that labor organization. Based on the revised tally, the Regional Director on September 14, 1978, issued a Certification of Representative. In view of the court's conclusion in the unfair labor practice case that the record evidence is in- sufficient to support the Board's findings that APPLE~t TFFI CHEVROLETT INC Gilley, Bartlett, Baines, and Gillespie ,were dis- charged in violation of Section 8(a)(3) of the Act, those individuals are thereby rendered ineligible to vote in the representation election.:' However, be- cause the ballots of the four alleged discriminatees were comingled with the ballots of the seven addi- tional employees the challenges to whose ballots were overruled by the Board, it is not now possible to resolve the election outcome. Given that the previously announced election result was based on a majority of only three ballots, it is obvious that the ballots of the four above-named individuals were potentially determinative of that result. Since these four ballots were. in view of the court's deci- sion, erroneously counted, and inasmuch as they are potentially determinative of the results of the election, we must set the election aside. 4 The election results do, however, strongly sug- gest that by the election date the Union's support had been substantially eroded. While 35 employees had signed union authorization cards by January 26, 1977, only 27 employees voted for the Union on February 25, 1977. Further, there is a substan- tial likelihood that the 4 alleged discriminatees are among the 27 who voted for the Union, since they were card signers, 3 were among the 31 who had signed a letter to Respondent informing it that they were members of a union organizing committee, and as discharged employees they may well have felt that they had little to gain by voting against the Union. If these 4 individuals whose ballots were erroneously counted did vote for the Union, that would mean that only 23 employees supported the Union as of the date of the election. Thus, the Union's strength would appear not only to have been eroded, but its majority status in fact lost.- The question, then, is what caused the employees to change their views, concerning union representa- tion. After reviewing the unfair labor practice find- ings as enforced by the court. we conclude that the Union's strength was dissipated by the Respond- ent's misconduct and that the possibility of erasing the effects of these unfair labor practices by the use of traditional remedies is slight. Therefore, we con- tinue to be of the view that employee sentiment :' The Hoard', action i overruling the challenges to their ballots as, of course premised upon its conclusion that hey were eligible, as discri- minatorily discharged emplosees. to ote ill the representation election Accordingly, e shall issue an order rescinding the Certification of Representative and selling aside the election " The court notes that here the Urlnion pressed fir an election and as- sumes it did so because it assumed its mnenbership had not been dissipal- ed That. oIf comurse. as before the court found the alleged discriminatees had not been unla full, discharged Further. the lmere fact that a lnoii beliees, it has a; chance 1of '.inning an electio, l doe, nt establish that it assumes Its streilgth renainls iintact once expressed through cards would, on balance, be better protected by a bargaining order.6 Further, it is the Board's established procedure to issue both a certification of representative if a union prevails in an election and a bargaining order to remedy a respondent's unfair labor practices committed after a union has attained majority status. The Great Atlantic & Pacific Tea Company, Inc., 230 NLRB 766 (1977), enfd. 577 F.2d 734 (4th Cir. 1978). One reason for this approach is that a certification alone would not suffice to correct any unilateral changes the employer may have institut- ed between the time when its bargaining obligation commenced and a certification of representative issued. Moreover, a certification alone might well require the union to institute still another unfair labor practice proceeding in order to compel the employer to honor the certification by bargaining with the union, thus unnecessarily prolonging the period during which a respondent may refuse to bargain in circumstances where its own unlawful conduct justifies earlier imposition of a bargaining obligation. See Pope Maintenance Corporation, 228 NLRB 326 (1977); Independent Sprinkler & Fire Protection Co., 220 NLRB 941 (1975). The facts are fully set forth in our prior Deci- sion. They reveal that Respondent reacted to a union organizing effort of its nonsales employees by launching a countercampaign calculated to defeat their efforts at self-organization. Thus, short- ly after the unionization movement began, Re- spondent brought in a psychologist who met with the employees in small groups, ascertained those conditions causing particular employee dissatisfac- tion, and then reported those areas to Respondent's president, Richard Lowe. Lowe, upon receiving the psychologist's report, met with the employees, again in small groups, and announced that a contri- bution to the employees' profit-sharing plan. to which the Company had contributed nothing for I hle court pires that the Board apparentl, had nsglxiiigs ihboult ith propriet! f bargaining order, sltating that Itf the oard had hbeen sII,- fied hat[ such an iOrder sias proper it iuliId hse been Ulllnclceair fr it to hase rex ievsed the challenges to the electionl or to hase ordered the x(ltes i the eleclionl tabulated In order to clear up this mlnsundersland- ing. se note that vAe proceed ullh the election noL out of all dubt con- terning the bargaining order, but so as not tI preclude the Union from Cenjoi ing an benefilts to hich it maN othersise b cntitled a a certified represcnllallve A the Supremre Court has notled n . L R B. Grssii Packing (ir, Inc., 39t5 l S 575 i (Itq).l a certified ull)on has the benefitl of numerous special privileges which are noI( ccorded nions recognl7ed soluntaril 5 or under a bargalrilig rdeler Amng those betnefits noted as accruing specificall) through certificatill wsere the following protection against the filing f nes election petitions hb rilal union, or employrees seeking lecerllficatlion for 12 nmolths protectrirn fi r a reasonhble period. usuall I ecar. agalun any disruptin Iof the hargaining reltionship hIX- Cause it' claims that the union llti) logr represents a majolrilt: protectllOn aga ins rcogilional picketing h) rival unlitns, and freedom from the re- trictllns placed on "sork assignment ldisputes h Sec 8lh)(4)I[)). and ti recogniitlional uand rganizational picketing h Sc 8(bl(7l Id a f 14 t h7 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD the past 2 years, had been made in the amount of $15,000, and that holiday and vacation pay of me- chanics would no longer be computed at a flat rate of $25 per day, but would be calculated on the basis of average daily earnings. This resulted in an increase in the amount of holiday and vacation wages received by those employees. Lowe told some employees at these meetings that he would hate to see them get their names on the "wrong list," and individually interrogated employees McMinn and Crisp about their union sympathies and the union sympathies of other employees, asking them to "politic" for the Company.7 During this same time period, prior to a scheduled repre- sentation election, Respondent also implemented a promotional contest in its parts department. Under this contest, which was limited to Respondent's dealership and not sponsored by Chevrolet, em- ployees in that department would receive extra pay if their sales exceeded a certain figure. It is apparent that Respondent deliberately em- barked upon a course of action designed to identify the grievances underlying its employees' desire for union representation and to convince them that their demands could best be met through direct dealing with Respondent and that union representa- tion would afford them no advantages. 8 As de- scribed above, shortly after the Union came on the scene Respondent proceeded to find out what it was the employees were unhappy about by bring- ing in a psychologist recommended by its labor counsel to conduct a survey of employee attitudes and, upon receiving the results of that survey, met with the employees to announce changes which would be made. Obviously such conduct must, of necessity, have a strong coercive effect on the em- ployees' freedom of choice, serving as it does to eliminate by unlawful means and tactics the very reason for a union's existence. Such conduct by its very nature has a long-lasting, if not permanent, effect on the employees' freedom of choice in se- lecting or rejecting a bargaining representative. 9 The granting of benefits or announcement there- of is conduct the unlawful effects of which likewise cannot easily be erased, for the benefits will remain in effect and serve as a constant reminder to the employees of the Respondent's use of economic weapons to defeat the Union. o0 Here, Respondent's use of this unlawful tactic is certainly pervasive, since the size of the unit is relatively small, and the 7 Respondent's operations manager, Uel Evans, also interrogated Crisp regarding whether he knew of anyone "that was swinging to the compa- ny or the Union " M Dallas Ceranic Company. 219 NLRB 582 (1975) 9 Eagh MaUurial Handling of ew Jersey. 224 NLRB 1529 (1976) Tkle- dyne Dental Products Corp., 210 NLRB 435 (1974). "' Broadmooxr Lumher Company, 227 NLRB 1123 (1977); Red Barn System, Inc.. 224 NLRB 1586 (1976). assortment of benefits announced which included more vacation and holiday pay for the mechanics, potentially more income for the parts department employees participating in the preelection promo- tional contest, and the contribution to the profit- sharing plan inuring to the employees' benefit will provide something for each of the unit employees. The court noted that what was objectionable about the Respondent's granting of benefits was not the benefits per se, but rather Respondent's timing of their announcement to its employees during the midst of the election campaign. In con- sidering the likelihood of a lingering effect of these benefits upon the employees' free choice, it would not appear to matter whether the decision to change the mechanics' vacation pay, for example, was made sometime during the "year and a half" which Lowe testified Respondent had been consid- ering it, or only after Respondent learned of the union activity. All the employees would know is that Respondent corrected a perceived cause of their dissatisfaction, so having a union to effect changes on their behalf was no longer necessary. Also significant in terms of affecting the possibil- ity of a fair rerun election are the employee inter- rogations and threats engaged in by Respondent's president, Lowe. Employees Turpin, Warren, Cau- dill, McMinn, and Roberts, all of whom the Ad- ministrative Law Judge found to be credible wit- nesses, each testified that Lowe made statements to the effect that they would not want to get their names on the "wrong list." Thus, Turpin's recollec- tion was that Lowe, at a meeting in his office fol- lowing psychologist Moseley's report to him at which Lowe, Moseley, and truck shop employees Warren and Caudill were also present, commented that they were a fairly young group, and that he would hate to see them get their names on wrong lists that circulate through the dealers because, "if you stay in this type of business, it would be detri- mental to your advantage." Warren recalled Lowe's comment about the list, but was not sure what kind of list was meant, other than that it would be bad to be on it. Although Warren had in- dicated that the list was "for other dealerships or something of that nature where I couldn't get an- other job or something," he asked that the portion of a statement given to a Board agent about the list being for other dealerships be stricken prior to sig- nature because he "wasn't exactly sure." Caudill testified that Lowe "referred to us as being young, that we didn't want to get on the wrong list or something to that effect. That is about what I re- member from the meeting." McMinn, who was so- licited by Lowe to politic for Respondent on a dif- ferent occasion, testified that Lowe said to him, 669 - - - - --- AP''I.E IR-F CIE.VROEI.I', INC "Well let's not get your name on the wrong list." Roberts, who was present along with three other used-car preparation department employees at a meeting with Lowe and Moseley in Lowe's office, recalled Lowe saying that there was a wrong list that was circulating around and he would hate for them to get on that type of list. Roberts' interpreta- tion of Lowe's reference was that it had to do with getting another job. Lowe's attempts to squelch the employees' inter- ests in union representation were apparently effica- cious, for he testified that "the majority of the people in this shop told me at one time or another, they assured me that they were against the union." Particularly revealing in this regard is the record testimony regarding Harold Crisp, a parts depart- ment employee who signed a union authorization card on January 6, 1977, and attended another union meeting on January 13, 1977, at which he signed a letter sent Respondent advising it of its employees union organizing committee. By early February, Crisp was so concerned about his job se- curity that, according to the testimony of Respond- ent's operations manager, Uel Evans, Crisp ex- pressed concerns to Evans about not wanting to get "mixed up in this stuff, these rumors that are going around, and lose my job." When queried as to what rumors he meant, Crisp, again according to the testimony of Evans, stated, "these fellow employees have framed me and they have trapped me, and the reason that I attended the first meeting was to find out if, what it was like, and what was going on down there. I was sitting on the front row in the first seat and I was given the first card. And so, automatically everyone thought I was their leader . . . I want to assure you that I have nothing to do with that, and that I have to have a steady job and income, and I don't want Mr. Lowe to think that I have got anything to do with this." I Oblique threats placing in employees' minds the seeds of fear are an invidious and most effective form of coercion. The full panoply of employee concerns regarding reprisal are thereby called into operation and allowed to germinate. Such threats are also inherently difficult to remedy, for Re- spondent can hardly reassure its employees that an event which it has threatened will not occur so as to restore them to an uncoerced state when its threat has been merely a hooded reference or innu- endo rather than the threat of an overt act. Fur- thermore, the lingering effect of such suggestions I Crisp confirmed Ihat he had requested to ee I.olse, hut testified that he did so after Eans had approached him in he parls department. asked him i o alk out to the utomers' lounge tio talk, and Ihere In- formed Crisp hal lose was disappoilled ill him implanted by the employer renders highly unlikely the possibility that employees would not remain unable to thereafter exercise free choice. Lowe's reference to a "wrong list" the employees would not want to be on represents precisely that type of pregnant suggestion exceedingly resistant to effica- cious dissipation and likely to remain operative for an indeterminate, but certainly substantial, period of time. As to the likelihood of a recurrence of the Re- spondent's unfair labor practices, there is really no way of predicting future conduct other than possi- bly through the observation of inclinations exhibit- ed in the past. However, the Supreme Court has noted that "a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct." As stated by that Court:' 2 If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage wil have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they existed before the em- ployer's unlawful campaign. Based on all of the above and the entire record in this case, we find that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employ- ee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." l Accordingly, we hereby affirm the Board's Order issued in this proceeding on August 25, 1978, insofar as that Order requires Respondent to recognize and, upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described therein and, if an understanding is reached, embody such agreement in a written, signed contract.' 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board reaffirms, except as modified below, 2 Gissel. upra at 612 :' GoIs'., supra at 614- hl5 4 For the reasons set forth in his separate opinlon in BRcaler Elnergy Inc.. d/ha Peauker Run Col Ckompanv, Ohio Diviton No 1 228 NLRH 9) (1977). Chairman Fanning would issue a prospective bargaininig order only hu,. he ould reaffirm the Board's riginal bargaining order but unlike his colleague, on the majorit. . ould date the hargaiining order from August 25. 178, the date of issuance f the Board's Order i Ithis proceeding. rather Ihan from JanuarN 2). 1977. the datle onl 6.hlch Re- spondenl commenied its unlasful conduct Chairnatn nling did Ilot parilclpate in the orgi l pnel declsion. hut sulhlitutcd Il the proceed- ing on remand fiir fo rmer ember becti Soiulhird slMlupl ) bh') 670 DECISI()NS ()F NATIONAl. IAB()R REI.AIO()NS 1()ARD its Order issued in this proceeding on August 25, 1978 (reported at 237 NLRB 867), and hereby orders that the Respondent, Apple Tree Chevrolet, Inc., Asheville, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said Order, as so modified: 1. Delete paragraph l(a) of our Order and relet- ter the subsequent paragraphs accordingly. 2. Delete paragraphs 2(a) and (c) of our Order and reletter the subsequent paragraphs accordingly. 3. Substitute the attached notice for that attached to our Decision of August 25, 1978. IT IS FURTHER ORDERED that the Certification of Representative issued by the Regional Director for Region I on September 14, 1978, in Case I -RC- 4300 be, and it hereby is, rescinded, that the elec- tion conducted on February 25, 1977, be set aside, and that the election petition filed in that case on January 14, 1977, be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT solicit grievances from our employees in an effort to influence their inter- est in or activity on behalf of Sheet Metal Workers International Association, Local 66, AFL-CIO, or any other labor organization. WEI W LI NOT announce benefits, such as a contribution to the employee benefit plan, change in method of computing vacation and holiday pay, or promotional plans in order to influence our employees concerning their ac- tivity on behalf of the Union or any other labor organization. WE WILL NOT threaten our employees with reprisals in order to influence their participa- tion on behalf of the Union, or any other labor organization. WE WILL NOT interrogate our employees concerning their interest in or activity on behalf of the Union, or any other labor organi- zation. WE WIIl. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL recognize and, upon request, bar- gain with Sheet Metal Workers International Association, Local 66, AFL-CIO, as the duly designated representative of the majority of our employees in a unit appropriate for pur- poses of collective bargaining and we will put any such agreement reached into a written, signed contract. APPI.E TREE CHEVROI.ET, INC.