Danker Motor Sales

National Labor Relations Board - Board Decisions

Feb 25, 1954

107 N.L.R.B. 1277 (N.L.R.B. 1954)

DANKNER MOTOR SALES 1277
at the quarry crusher and screening operation, but excluding
all employees at the retail yard and in the office at Northampton,
Pennsylvania, the assistant superintendent, shift foremen,
watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Member Rodgers took no part in the consideration of the
above Decision and Direction of Election.
DAVID DANKNER d/b/a DANKNER MOTOR SALES and
AMERICAN FEDERATION OF LABOR. Cases Nos. 3-CA-
678 and 3-CA-693. February 25, 1954
DECISION AND ORDER
On October 30, 1953, Trial Examiner George A. Downing
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that he
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, and the Respondent
filed a supporting brief. The Respondent's request for oral
argument is hereby denied as, in our opinion, the exceptions
and brief adequately present the issues and the positions of
the parties.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire
record in these cases, and hereby adopt the findings,' con-
clusions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the Re-
spondent, David Dankner d/b/a Dankner Motor Sales, Buffalo,
New York, his agents , successors , and assigns , shall:
1. Cease and desist from:
'Although Chairman Farmer and Board Member Rodgers agree that jurisdiction should
be asserted in this proceeding on the basis of the direct inflow, they are not to be deemed
thereby as agreeing with the Board's present jurisdictional standards. Members Murdock
and Peterson would assert jurisdiction on the customary basis that the Respondent is an
integral part of a nationwide system for the distribution of automobiles. Baxter Bros., 91
NLRB 1480; Howell Chevrolet Co. v. N. L. R. B., 346 U. S. 482 (1953).
107 NLRB No. 272.
337593 0 - 55 - 82
1278 DECISIONS OF NATIONAL LABOR ERLATIONS BOARD
(a) Refusing to bargain collectively with Auto Salesmen's
Union No. 24898, AFL, as the exclusive representative of all
new- and used - car salesmen , working on salary and / or com-
mission, employed at his Buffalo, New York, plant, excluding
the sales manager, the general manager , office clerical em-
ployees, professional employees , guards, and supervisors as
defined in the Act.
( b) Discouraging membership in Auto Salesmen 's Union No.
24898, AFL, or in any other labor organization of his employees,
by discriminatorily discharging or refusing to reinstate any of
his employees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or
condition of employment.
(c) Interrogating his employees regarding their union mem-
bership and activities ; warning and threateninghis employees
of reprisals for joining or assisting or voting for the Union;
changing unilaterally the wages and hours of his employees;
informing his employees that their desire for the Union had
occasioned imposition of less desirable working hours; and
inducing and encouraging the surveillance of union meetings
and activities.
(d) In any other manner interfering with, restraining, or
coercing his employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
Auto Salesmen's Union No . 24898, AFL, or any other labor
organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection , or to refrain from any or all such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Chester Widlak immediate and full reinstatement
to his former or substantially equivalent position , without prej-
udice to his seniority and other rights and privileges , and make
him whole for any loss of pay he may have suffered by reason
of the discrimination against him , in the manner provided in the
section of the Intermediate Report entitled "The Remedy."
(b) Upon request bargain collectively with Auto Salesmen's
Union No . 24898, AFL, as the exclusive representative of his
employees in the aforesaid appropriate unit with respect to
rates of pay, wages, and hours and conditions of employment,
and, if an understanding is reached , embody such understanding
in a signed agreement.
(c) Post at his plant at Buffalo , New York, copies of the notice
attached hereto and marked "Appendix A."2 Copies of said
2In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
DANKNER MOTOR SALES 1279
notice, to be furnished by the Regional Director for the Third
Region, Buffalo, New York, shall, after being duly signed by
Respondent or his representative, be posted by Respondent im-
mediately upon receipt thereof and be maintained by him for a
period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Preserve and, upon request, make available to the Board
or its agents, for examination and copying , all payroll records,
social-security payment records, timecards, personnel records,
and all reports and other records necessary to determine the
amount of back pay due.
(e) Notify the Regional Director for the Third Region, in writ-
ing,within' (10) days from the date of this Order, what steps Re-
spdndent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, I hereby notify my employees
that:
I WILL NOT discourage membership in Auto Salesmen's
Union No . 24898, AFL , or in any other labor organization
of my employees , by discharging or refusing to reinstate
any of my employees , or in any other manner discriminating
against them in regard to hire or tenure of employment or
any term or condition of employment.
I WILL NOT interrogate my employees concerningtheir
union membership or activities ; warn or threaten my em-
ployees of reprisals for joining or assisting or voting for
the Union ; inform my employees that their desire for the
Union occasioned imposition of less desirable working
hours; change unilaterally the wages and hours of my em-
ployees; or induce or encourage the surveillance of union
meetings and activities.
I WILL NOT in any other manner interfere with, restrain,
or coerce my employees in the exercise of rights guaran-
teed in Sec ion 7 of the Act.
I WILL offer to Chester Widlak immediate and full rein-
statement to his former or to a substantially equivalent
position , without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of pay he
may have suffered by reason of the discrimination against
him.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL bargain collectively upon request with Auto
Salesmen ' s Union No . 24898, AFL, as the exclusive rep-
resentative of all of my employees in the bargaining unit
described below, with respect to rates of pay, wages, hours
of employment , and other conditions of employment and, if
an agreement is reached , embody such understanding in a
signed contract . The bargaining unit is:
All new- and used - car salesmen , working on salary
and/or commission , employed by me in my Buffalo
plant, exclusive of sales manager , general manager,
office clerical employees , professional employees,
guards, and all supervisors as defined in Section 2
(11) of the Act.
All my employees are free to become or refrain from becom-
ing members of the above-named Union or any other labor
organization . I will not discriminate in regard to the hire or
tenure of employment or any term or condition of employment
because of membership in or activity on behalf of any such
labor organization.
DAVID DANKNER d/b/a DANKNER MOTOR SALES,
Employer.
Dated . .................. By ...................... .............. .........
(Representative ) ( Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These cases having been consolidated by order of the Regional Director for the National
Labor Relations Board, on August 18, 1953, and a complaint having been issued on said date
by the General Counsel under Section 10 (b) of the National Labor Relations Act as amended
(61 Stat. 136), a hearing was held in Buffalo , New York, on September 8, 14, 15 , and 16, pur-
suant to due notice to all parties .' The General Counsel and Respondent were represented at
the hearing by counsel and were afforded full opportunity to be heard , to examine and cross-
examine witnesses , to introduce relevant evidence , to argueorally , and to file briefs and pro-
posed findings of fact and conclusions of law . A brief has been filed by Respondent.
The complaint, based on charges duly filed and served , alleged in substance 2 that Respondent
engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5 ) of the Act: (1)
By discrimination , because of union membership and activity (a) in discharging Chester Widlak
on April 16 and failing to reinstate him until April 23, (b) in discharging Widlak again on May
27 and thereafter refusing to reinstate him, and (c) by transferring all full - time salemen to
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board . The above- named
Respondent is referred to as Respondent and as Dankner , and the charging party as AFL.
2 The summary of the pleadings here made includes all amendments . All events occurred
in 1953.
DANKNER MOTOR SALES 1281
less desirable work shifts , ( 2) by refusing on or about August 4, 1953, and since, to bargain with
Auto Salesmen's Union , No. 24898, AFL (herein called the Union), as the certified exclusive
representative of Respondent 's employees in an appropriate unit, and (3) by engaging in
various acts of interference , restraint , and coercion , such as interrogation of employees and
warnings and threats concerning union affiliations , by inducing employees to engage in -sur-
veillance of union meetings and activities , and by changing unilaterally his method of paying
wages to, and the hours worked by , full- time new-car salesmen
Respondent , by his answer filed on August 26, and by his amended answer filed at the hearing,
denied that he had engaged in unfair labor practices as alleged . He averred that Widlak had
been discharged for various causes , such as his refusal to obey orders and instructions, his
failure to perform his duties satisfactorily , and his failure to earn the amount of hisdrawing
account . The answer admitted that the Regional Director had certified the Union following
an election, and that Respondent had refused to bargain with the Union , but averred in sub-
stance that the election was not conducted pursuant to a validly executed agreement , and that
the certification was improperly made and the Regional Director ' s action therein was
arbitrary , capricious , and in disregard of Respondent 's rights and of his obligation to the
Union.
The answer averred further that the consent -election agreement was executed in the Board's
Regional Office and that contemporaneously Respondent and the Union executed an agreement
certifying that 6 named persons were eligible to vote in the election ; that representatives
of the Board were aware of the latter agreement ; and that thereafter (during the election) the
Union repudiated the agreement by challenging the vote of 1 of the 6 employees whose
eligibility had been agreed to. Respondent averred further that a majority of Respondent's
employees "do not desire that the Union represent them in bargaining with the Respondent,"
but no evidence was offered in support of that allegation.
The answer also averred that Respondent had commenced an action in the State courts of
New York seeking to have the consent-election agreement declared invalid and prayed that
the hearing on the matter of Respondent ' s alleged refusal to bargain should await the determi-
nation of the State court action The General Counsel ' s motion to strike that portion of the
answer, ruling on which was reserved at the hearing , is now hereby granted.
Upon his entire record and from his observation of the witness , the undersigned makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent (1 of 4 Nash dealers in Buffalo ) entered the new-car business in January 1953,
under a franchise agreement with the Nash- Kelvinator Sales Corporation , under which
Respondent was obligated with responsibility for developing the market for motor vehicles
manufactured by Nash- Kelvinator Corporation (Nash Motors Division) of Kenosha, Wis-
consin, 3 as well as manufacturer 's parts and accessories , in the territory described as
"Buffalo Multiple Dealer Area and the recognized trading area tributary thereto." Re-
spondent was likewise obligated for the recognition and protection of Nash' s trade-marks
and trade-names and for promoting the good will of Nash products.
Without summarizing further the detailed provisions of the dealer franchise agreement,
it can be said that the contract governed fully the relations between Nash' s sales corporation
and its dealers and that it prescribed the standards to be observed by the dealers in relation
to the general public and to their customers . Thus, the Respondent operated under the franchise
agreement as an essential part of an interstate system fbr the distribution of Nash cars,
parts , and accessories . N. L. R. B. v. Conover Motor Company , 192 F. 2d 779 (C. A. 10);
N. L. R. B. v. Davis Motors . Inc., 192 F. 2d 782 (C. A. 10); N. L. R. B. v Ken Rose Motors,
Inc , 193 F. 2d 769 (C. A. 1); N. L. R. B, v. Howell Chevrolet Company, 204 F. 2d 79 (C, A. 9),
cer. granted 345 U. S. 955, but see N, L. R. B. v. Bill Daniels , Inc., 202 F. 2d 579 (C. A. 6)
From January 1 to August 31, Respondent purchased Nash automobiles valued at $ 296 ,665.87,
all of which were manufactured at Nash ' s Kenosha plant Approximately half of those cars
3 Nash- Kelvinator Corporation is a nationally known manufacturer and distributor of
automobiles , refrigerators , and other products , which produces about 250 ,000 cars annually.
Nash-Kelvinator Sales Corporation is its wholly owned selling organization and its domestic
distributing organization embraces more than 1,600 Nash dealers . Standard and Poor's
Corporation Records, pp . 2502, 2243-2244.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were shipped direct to Respondent at Buffalo , and the remaining half were purchased and re-
ceived by Respondent , after shipment from Kenosha , from Nash's warehouse in Buffalo.
Respondent began receiving new cars in February , though not in substantial numbers until
March.
Since practically the entire purchases of $ 296,665 . 87 occurred in a 6 -month period, it is
apparent that Respondent ' s business meets the Board 's current standards for the assertion
of jurisdiction , aside from its function as a part of an interstate distributional system. In
view of Respondent ' s status under the franchise agreement , the fact that the title and owner-
ship of those cars which were received through the Buffalo warehouse may have remained in
Nash until delivery to Respondent did not remove the cars from the channels of commerce.
See e.g , Standard Oil Company v. Federal Trade Commission , 340 U. S. 231 , 236-238,
Montgomery Ward and Company v. Antis, 158 F. 2d 948 , 951 (C. A. 6) cert. denied 331 U S.
811; Mid-Continent Petroleum Corporation v. Keen, 157 F. 2d 310 . 314 (C. A. 8); Wailing v.
Jacksonville Paper Company , 317 U. S. 564 , 571. Questions concerning the time or method
of transferring title have no bearing in determining the limits of interstate commerce, cf.
N. L. R. B. v. Fainblatt , 306 U . S 601, 605; N. L. R. B. v. Santa Cruz Fruit Packing Co., 303
U. S. 453 , 463; for 'Commerce , . , is a practical conception , not drawn from the "witty
diversities ' of law of sales" Holmes , J., in Rearick v, Penna ., 203 U. S. 507; and see wift &
Co. v. U S., 196 U. S. 375 , 398-9. It is therefore concluded and found that Respondent is
engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to membership employees of Respondent.
IJL THE UNFAIR LABOR PRACTICES
A. Background ; synopsis of main events and issues
Dankner became a Nash dealer in late January , after 8 years in the used - car business.
Although he did not succeed to the franchise of Rooney Motors , his assumption of the Nash
dealership coincided with Rooney's withdrawal from business, andDankner employed a number
of Rooney ' s employees , including - salesmen Chester Widlak, Elon Rundell, and James G.
Herbert.
Until approximately mid-April , Dankner operated from temporary locations on used-car
lots , pending erection of his own building and showroom on the site of his former used-car
business . Prior to entering his new building , Dankner employed only 2 full-tune salesmen on a
commission basis with a weekly salary guarantee ( Rundell, $ 200, Widlak , $ 100), and they
normally worked from 9 a. m. to 9 p. m., as they had at Rooney's. Beginning April 13, with
the completion of the new building , the salesmen were placed on a straight commission basis,
with a $ 60 weekly drawing account against commissions and with settlements to be made
monthly. At that time also Dankner hired, on the same basis, 2 more full-time salesmen,
Herbert and Kiever Obstein , and put on , as a part-time salesman for the evening hours,4
Frederick Matthies , who also worked during daytime hours as Dankner ' s parts man. Some-
time in May, Dankner also put on, as a part- time salesman , Robert Hasler , who had outside
employment as a schoolteacher and as operator of a vending - machine business
Shortly prior to April 13, interest in forming a union arose among the salesmen as a
result of literature distributed at Respondent 's premises by representatives of the Union,
and Widlak took the lead in the subsequent organizational activities . He was discharged by
Dankner on April 16, and was reinstated with back pay on April 23, under a settlement
agreement , after investigation by the Board ' s Regional Office of the original charge
On May 4, the Union filed its representation petition under Case No. 3-RC-1202, and on
May 18, Dankner and the Union executed a consent -election agreement in the usual form. At
the election , held on May 21, 3 votes were cast for the Union , 2 against it, and Robert Hasler's
ballot was challenged.
On or about May 25, Dankner put into effect , without consultation with the Union, a new
schedule of hours which curtailed the working time of the full-time salesmen , particularly
during the evening hours . On May 27 Dankner discharged Widlak for the second time.
4The evening hours were the rush hours in Respondent's business , and extra salesmen
were needed then in order to obtain proper coverage of prospective customers.
DANKNER MOTOR SALES 1283
Following an investigation by Field Examiner J M. Shea, the Regional Director, on June 17,
issued his report on the challenged ballot, sustaining the challenge and certifying the Union.
On June 19 Dankner filed objections and exceptions, representing that the consent-election
agreement was made on the basis of a stipulation with the Union that six employees on a list
in the Board's possession (including Hasler) were entitled to vote, and that unless all of them
did so, the agreement was void and the election a nullity.
On June 24, the Board, by its assistant executive secretary, wrote Dankner that it would
not entertain an appeal and would only consider his objections and exceptions because the
consent-election agreement provided that the Regional Director's determination was to be
final and binding on any question relating to the election. On June 25, the Regional Director
issued his supplementary report on the challenged ballot, stating that he had reconsidered the
entire matter and that he reaffirmed his findings and his certification of representatives.
On June 26, Dankner filed further exceptions and protests in which he repeated in somewhat
more detail the grounds of his attack, but the record does not show what disposition was made
thereon.
Early in July, Dankner made, unilaterally, further changes in the hours and pay of the sales-
men. On August 4 the Union made a formal request to bargain, which Dankner refused.
The General Counsel also offered evidence that Respondent made a number of statements of
coercive effect, particularly during the period prior to the election.
The chief issues involved herein are whether Respondent's discharges of Widlak were
because of his union activities or for the reasons asserted by Respondent; whether Respondent
engaged in the various acts of interference, restraint, and coercion as charged, and whether
the evidence sustains Respondent's attacks on the election and on the validity of the Regional
Director's certification of the Union. A minor issue concerns the General Counsel's con-
tention that, aside from the commission of additional unfair labor practices, the Respondent
breached the settlement agreement 5 by failing, in fact, to pay Widlak his back wages as agreed.
Before proceeding to a detailed summary of the evidence, it will be helpful to call attention
briefly to Respondent's situation at the time involved herein-and to his temperament, since they
throw considerable light on the course of the events. Dankner was shown by the evidence and
by his appearance and manner of testifying to be of an easily aroused disposition, with a
tendency toward emotional and sometimes extravagant statements and claims Furthermore,
abnormal provocations were present, because Dankner was beset by many problems sur-
rounding his entry into a new type of business, the completion of his new building, and the
assembling of an organization. Because of his preoccupation with those problems, he was
unwilling, and considered himself unprepared, to face additional problems which he antici-
pated would arise from the organization of his salesmen into a union
The evidence will be summarized, for the sake of convenience, under topical headings
corresponding to the types of unfair labor practices with which Respondent is charged, i.e ,
interference, restraint, and coercion, discrimination, and refusal to bargain.
B. Interference, restraint, and coercion
Shortly prior to completion of the new building on April 13, union representatives began
distributing union literature on Respondent's premises, and initially there were discussions
between Dan Stone (Respondent's assistant manager), Dankner, himself, and Widlak and Rundell,
5 The complaint in the present case is based in part upon charges which were included in
the settlement agreement. It has long been the policy of the Board to honor settlement agree-
ments reached with the approval of an agent of the Board, unless the agreement has been
breached or unless the alleged unfair labor practices have been continued in such a way
that it seems necessary to go behind the agreement in order to effectuate the policies of
the Act. Wooster Brass Company, 80 NLRB 1633, 1634, and cases cited. And see The Wallace
Corporation v. N. L. R. B. 323 U. S. 248, 254- 5; Poole Foundry & Machine Co. v. N L. R B.,
192 F 2d 740 (C. A. 4) cert. denied 342 U. S 954; N. L. R B v. May Department Stores
Company, 154 F. 2d 533, 539 (C. A 8). The Board's practice in such a case is not to con-
sider as evidence of unfair labor practices conduct of a Respondent antedating the settlement,
unless the Respondent has failed to comply with the agreement or has engaged in independent
unfair labor practices since the settlement. Larrance Tank Corporation, 94 NLRB 352;
Rice-Stix of Arkansas, Inc., 79 NLRB 1333, 1334, and cases cited. Since the record estab-
lishes, as herein found, continued flagrant violations of the Act by Respondent, the entire
evidence has been considered in making findings of unfair labor practices.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the possible advantages which might accrue to Dankner's business from publicizing
that his salesmen were organized. Though at first the idea appealed to Stone, there is no
evidence that Dankner favored it at any time
When it became known that a union meeting was to be held on the night of April 13, Stone
suggested to Widlak that he attend the meeting and find out "what the score is on the union."
Widlak attended, joined the Union, and reported back to Stone the next day what had taken
place at the meeting He also later solicited the other salesmen to join the Union. Widlak also
discussed with Dankner his attendance at the meeting, but that evidence bears more directly
on the subject of Dankner's first discharge See section C, 1, infra.
Herbert, who was hired on April 13, testified that following the distribution of union
literature on the premises during the first week of his employment, Dankner frequently dis-
cussed with him the Union and the union organizers . On one occasion Dankner asked him
why he wanted to aline himself with such seemingly low characters, and another time either
Stone or Dankner made the remark that the union organizers looked like gangsters. On
another occasion Dankner stated that the Union would ruin him and thereby naturally affect
Herbert, his employee, and at another time Dankner asked Herbert if he was a member of
the Union On still another occasion, before the election, Dankner told Herbert he knew
Herbert was a member of the Union, and on May 21, a few minutes before the election,
Dankner told him, "This is your last chance."
Herbert also testified that about 2 days before the election a Mr. Westergren (representative
of a finance company with which Dankner did not do business) was in the showroom chatting
with some of the salesmen and that as Westergren started to leave Dankner came up, followed
him to the door, and threatened, in a loud voice and with resort to obscenity, that if the Union
should come in he would make conditions extremely arduous for the salesmen.
Herbert and Widlak testified that during a sales meeting6 Dankner said (again in terms of
vulgarity) that he had been taken advantage of many times, but that he always managed to re-
taliate or get even, and now the Union was trying to take advantage of him.
Widlak testified that early in May, Dankner came in one morning with an envelope in his hand,
waved it before Obstein, and exclaimed , "The goddam union, look what the hell they have done to
me." (The time of this incident indicates that what provoked Dankner's outburst was receipt of
notice of the filing of the representation petition.) Widlak also testified that on the morning on
which Dankner put into effect anew schedule of working hours (around May 25), Dankner said to
the salesmen as he was distributing copies of the schedule, "You boys wanted a union , here is your
new working hours."
Much of the foregoing testimony was not refuted. Respondent did not call Stone , andthetesti-
mony concerning Stone's acts and statements stands undenied. Nor did Dankner testify in specific
denial of much of Herbert's and Widlak's testimony, though he denied the use of the vulgarities
attributed to him and denied the alleged references to the Union in sales meetings. His latter testi-
mony received some support from Obstein, who denied thatDankner had referred to the Union
during the sales meeting which Powers attended or the one at which the new schedule was put
into effect. The Herbert-Widlak testimony is credited, however, since much of it was not
denied, since in other respects it was mutually corroborative, and since it received further
general corroboration from testimony (later summarized) of disinterested outsiders
(Jankowiak, Froncsak, and Wallace) as toDankner's attitude toward the Union and its adherents.
It is, therefore, concluded and found that by Respondent's interrogation of Herbert con-
cerning his union membership; by warnings and threats to employees of reprisals for join-
ing or assisting or voting for the Union in the election: by imposing a less desirable schedule
of working hours without consultation with the Union, and by informing the salesmen that their
desire for the Union accounted for the change; 7 and by inducing and encouraging the surveil-
6Widlak was under the impression that Powers (district manager of Nash) was present at
the meeting in question, while Herbert testified that the statement was made at a meeting
when Powers was not present. Herbert added that he thought it would be unwise for Dankner
to discuss the Union before Powers. Herbert's conclusion seems obviously sound; his version
is accordingly adopted.
7The imposition of the new schedule did not constitute discrimination, as contended by
the General Counsel, since Respondent's evidence established that Dankner acted on the ex-
press advice of his counsel, Wolkind, who was under the mistaken impression at the time
that the salesmen were subject to the overtime provisions of the Fair Labor Standards Act,
However, Dankner used the occasion to restrain and coerce the salesmen in their organi-
zational activities.
DANKNER MOTOR SALES 1285
lance of union meetings and activities , Respondent engaged in interference , restraint, and
coercion within the meaning of Section 8 (a) (1) of the Act. Though Dankner's various state-
ments in disparagement of the Union and the union organizers establish his knowledge of
union activities and his animus 'against the Union, they did not constitute unfair labor prac-
tices as such.
C. Discrimination
1. Widlak's first discharge and reinstatement
The second day after Widlak's attendance at the union meeting on April 13, he discussed
with Dankner the happenings at the meeting , though their testimony is in conflict regarding
the content of the conversation. According to Dankner, Widlak stated only that he had spoken
at the meeting and that he thought he was going to be thrown out. Widlak testified that he re-
ported to Dankner, among other things, that he had joined the Union, that Dankner stated that
he had no objection to unions, but added that, "I want to be left alone now, Chet, I don't want
to have anything to do with unions. I have too much on my mind right now, the building and the
cars and so forth."
Widlak testified that the next morning after that conversation, Dankner summarily dis-
charged him, saying, "You are fired, you are through." When Widlak inquired what he had
done, Dankner said something about a deal of Widlak 's the night before which "got into my
hair." Widlak then asked if it was because of the Union that he was discharged and Dankner
replied, "Well --" and waved his hands and repeated , "Well --" and walked out.
Dankner testified that when he fired Widlak he did not know that Widlak had any connection
with the Union and that he discharged him because of two of Widlak's deals which had caused
trouble. On one of the deals the customer had come in again the night before the discharge and
had continued his complaints about his failure to receive certain repairs which Widlak had
promised him but which Danknei had not authorized when the deal was closed. On the other
deal, Dankner testified that Widlak had gotten an offer of $ 600, plus an old car in trade, and
that when he refused to approve it, Widlak said, "You want to get rich. You are making
enough money ." Dankner continued , "The next morning I figured to let him go. I don 't remem-
ber what I told him. I told him he was let go."
Although the latter dealwas successfully concluded by another salesman for a cash difference
of $650, the sale was closed gtex Widlak's discharge; and, despite Dankner's alleged dis-
satisfaction with Widlak's earlier handling of the matter, Dankner allowed him to share in the
commissions after his reinstatement . Furthermore , Widlak testified , without denial, that
Stone had authorized him to write up the deal for $ 600 , and had later commented that it was
a good deal at that figure.
Further evidence bearing direcuy on the question of Dankner 's discriminatory motivation was
supplied by the testimony of MarieJankowiak, Loretta Froncsak, and Harold Wallace regarding
conversations with Dankner shortly before he dischargedWidlak the second time (summarized
under section 2, infra). Also significant was Herbert's testimony that on one occasion Dankner
told himDankner thought Widlak was using the Union as a personal stepping stone, that his goal was
to become an officer of the Union. and to take advantage of Dankner in the process.
The day following his discharge Widlak returned to the showroom and requested Dankner to
reinstate him. Widlak testified that Dankner repliedthathe would be glad to have Widlak come
back if he would mind his own business, and that he could start "tomorrow or right now, if you
have nothing to do with the union. If you do, I will fire you again." Widlak stated that he had not
made up his mind.
Dankner admitted at one point that he may have referred to Widlak minding his own busi-
ness, but denied that he referred to the Union . Obstein testified that, in a portion of the con-
versation which he heard, Dankner agreed to take Widlak back if he would sell autos and pay
attention to his job. However, Obstein admitted that the conversations between Dankner and
Widlak went on for some 2 hours, of which about 1 or 11 hours was not in his presence. Under
the circumstances , his testimony is valueless in resolving the conflict.8
sObstein's testimony was otherwise rendered suspect in certain of its aspects because of
his ubiquitous tendencies where corroboration of Dankner was concerned., See e.g., his testi-
mony concerning the Wallace incident, under section 2, infra. Obstein admitted that he was
strongly opposed to the Union and that he expressed that view openly.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 23, Field Examiner Edward H. Noonan, Jr., effected a settlement agreement
with Dankner of the original charge. The agreement provided for an offer of reinstate-
ment to Widlak, for payment of $ 100 as back pay, and for the posting of a notice to employees
that , among other things , Respondent would refrain from further discrimination and from
interference , restraint , and coercion of employees . Dankner testified at first that Noonan
simply produced the settlement papers, told him to sign them, pay Widlak $100, and offer
him his job back. At a later point Dankner admitted that their discussions went on for
over an hour (while they had lunch together), and that as a result Noonan prepared a writ-
ten statement concerning Widlak's discharge which he refused to sign, although he did
sign the settlement papers . Still later in his examination , Dankner testified in detail as
to Noonan's negotiations with him, but then added a claim that Noonan had procured his
consent to the settlement by threatening that unless Dankner settled " right now," it would
cost him "thousands of dollars."
Widlak received a check for $100,9 returned to Respondent's employ the next day, and
resumed his efforts to sign up the other salesmen . During the week prior to Respondent's
"grand opening" on May 1, he procured signed authorization cards from Rundell, Matthies,
and Herbert. On May 4, AFL filed its representation petition, and on May 18, Respondent
signed a consent-election agreement.
2. Widlak's second discharge
Widlak acted as the Union's observer in the election on May 21, and challenged the ballot
of Robert Hasler, which action Respondent has assigned as a breach by the Union of the
consent -election agreement and as voiding the election . See section D. infra. Dankner dis-
charged Widlak for the second time on May 27, but in the meantime two other incidents
occurred which bear directly on the question of discriminatory motivation, i.e., the Janko-
wiak incident on May 16, and the Wallace incident on May 23.
On May 15, Mrs. Marie Jankowiak, who was Widlak's customer, had closed a deal and
taken delivery of a new car on papers which clearly reflected that she was being allowed
$1,500 in trade for her old car. Widlak testified that she left the showroom quite happy
with her new car. The next morning, in Widlak's absence, she returned to the showroom
with her daughter, Mrs. Loretta Froncsak, and complained long and loudly that she was
supposed to have received $ 1,600 on her trade-in , exhibiting in support of her claim an
earlier order sheet dated May 6 , which was made out and signed by Widlak as salesman
and which showed a used -car appraisal of approximately $ 1,600. However, the order blank
(which contained the statement , "This order is not valid unless signed and accepted by
dealer ") was not signed by anyone on Dankner 's behalf.
In order to remove the untoward commotion from the showroom , Dankner took Mrs.
Jankowiak and her daughter out to their car, where according to the two women, a lengthy
conversation occurred during which Dankner first inquired if they were connected with the
Union or were relatives of Widlak . When they answered in the negative , Dankner stated that
he had previously discharged Widlak "because he had organized a union in our place and
he is giving me a lot of trouble." Dankner added that though he did not want the Govern-
ment to run his business , the Labor Board had required him to take Widlak back because
he did not "have anything on him"; and Dankner suggested that if Mrs. Jankowiak would
sign a statement putting all the blame on Widlak for the mistake , Dankner would then have
a good reason to discharge Widlak, and he would refund her $100. At one point during the
conversation Dankner pointed out 2 other salesmen (Rundell and Herbert), stating that he
wanted to discharge them also because they had joined the Union and were giving him trou-
ble.iD
Mrs. Jankowiak agreed to make a truthful statement concerning the Widlak deal, and
,they returned to the office where the daughter wrote out a statement which Dankner re-
9 The entire evidence establishes that, because of the manner in which Bachmann posted
the back-wage payment to Widlak's account, Respondent recouped a substantial part via
commissions on two deals which had been made before, but closed after, Widlak's rein-
statement. However, that result seemed attributable to confused accounting practices, rather
than to an intentional breach of the settlement agreement. The error is rectified herein
under the section entitled "The Remedy," )nfra; and see footnote 19.
iiThat testimony received general corroboration from Herbert's undenied testimony
that Dankner asked him on a number of occasions why he did not quit.
DANKNER MOTOR SALES 1287
fused to accept because it cleared Widlak of blame. During the course of the conversation
in the office, Dankner again referred to the fact that despite the trouble Widlak had caused
him by organizing the Union, the Government had required him to reinstate Widlak, and he
showed them the "Notice to Employees" which was posted in Bachmann's adjoining office.
Both Jankowiak and Froncsak were under the impression that Bachmann was in his office
at that time, but Bachmann testified (and Dankner's testimony was corroborative) that
although he had seen them earlier in Dankner's office, he left before they returned and
was not present at any time when Dankner showed them the notice. It is, therefore, con-
cluded that they had seen Bachmann at the earlier time.
Mrs. Jankowiak later followed Dankner into the repair shop (where he went after failing
to agree on her statement) and continued to voice her complaints about the car deal. Obstein
testified that he endeavored to placate her, and that she told him to stay out of the deal
and that he was trying to "take Chester's job."
Dankner denied that he had at any time referred to Widlak's union activities or to having
discharged him on that account, but testified that he did state that Widlak had caused him
a lot of trouble. He denied having shown the women the notice to employees, but admitted
they might have seen it posted in Bachmann's office through the glass partitions or from
the doorway. He testified that he offered Mrs. Jankowiak $50 while she was in the car
just to get rid of her, and that when she demanded the full $100 difference, he agreed to
pay it if she would sign a true statement concerning the deal. He explained that he wanted
the statement because Widlak was not present and had told a contrary story.
Wallace testified to an occasion on Saturday afternoon (May 23), when he discussed with
Dankner his failure to get delivery on a car which he had agreed to purchase through Widlak,
and that Dankner told him the deal was off because Dankner would not approve the valuation
on a trade-in at the figure at which Widlak had written up the contract, because Widlak
had taken it upon himself to put the deal through without approval Wallace agreed to meet
the $ 50 difference rather than to cause dissension between Dankner and Widlak, and during
their bargaining discussions Dankner said, among other things:
Mr. Widlak has been causing a lot of trouble here and him and some other fellows
who are employed here are trying to unionize our place, trying to put pressure on
me at this time. I am beginning to start in the business. I can't afford it.
Dankner also told Wallace that he had gone to the Union and it had given him a year's
extension to get on his feet, and that he would meet the demands of the Union after he got
on his feet.
Dankner denied that he had said anything to Wallace about the Union. Obstein, who testi-
fied that he was present during the conversation, also denied that Dankner mentioned the
Union. Obstein testified, however, that he was halfway across the showroom at the time, but
explained that anything above a whisper was audible in the showroom.
Under all the circumstances in the case, the Jankowiak-Froncsak-Wallace testimony is
accepted. Not only were they persons who were without interest in Dankner's labor troubles,
but the Jankowiak-Froncsak testimony was mutually corroborative, and it received, as
well, general corroboration from Wallace 's testimony regarding Dankner's attitude toward
Widlak and the Union. Though Mrs. Jankowiak may have harbored some feeling against
Dankner, her testimony was corroborated by her daughter. Furthermore, Wallace's testi-
mony reflected freedom from animus against Dankner. Indeed, the testimony of the three
outsiders showed that Dankner's statements to them were of substantially the same cloth
as those previosly made to the salesmen and to other outsiders (Westergren).
Widlak testified that on the morning of May 27, Dankner discharged him in Stone's pres-
ence, stating, "You are fired, Chet. You haven't earned your keep." Widlak testified that
he did not recall that Dankner also said that he was causing disturbances and had not obeyed
instructions.
Dankner testified that he told Widlak he was fired because "he wasn't earning his keep,
he didn't obey instructions, and he was not a satisfactory employee." Dankner was under the
impression that Bachmann was present. When questioned for particulars as to Widlak's
derelictions, Dankner supplied the following:
(a) Widlak had at no time earned the amount of his drawing account ($100 to April 13;
$ 60 thereafter), and was the only salesman who had not done so.
(b) Widlak had not complied with instructions given during a sales meeting in May to turn
over to Stone or to Dankner customers whom he had failed to interest or to sell.
1 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Widlak frequently promised customers equipment and repairs which were not included
in the written sales order, which were not authorized by Dankner, and which sometimes
led to dissatisfaction and complaints on the customers ' part . Widlak also sometimes en-
couraged prospective customers to believe that they would or might receive a greater
allowance on their trade-ins than the amount of the appraisal
The General Counsel offered no refutation of (a) above, but contented himself by suggest-
ing instances in which Dankner had seemingly blocked or impeded the closing of some
of Widlak's deals. That evidence was not persuasive in view of Dankner ' s financial condi-
tion at the time , and his obvious interest in making sales and in establishing himself as
quickly as possible in his new business
On (b), Widlak explained that his failure to turn over certain customers was due to the
fact that they were Polish (as was Widlak) and that Dankner and Stone did not speak that
language . Herbert testified that he had also frequently failed to comply with the direction,
because it was sometimes impossible to persuade a customer to remain long enough to
talk with others.
On (c), Widlak testified in explanation and in defense of the various deals about which
Dankner had testified and concerning which Dankner had criticized him. It is unnecessary
to summarize in detail either Dankner's bill of particulars or Widlak's defenses thereto,
since the evidence shows clearly that some of Widlak's deals had caused trouble (the
Jankowiak deal was striking example)
In sum, Respondent established undet,(a) and (c), supra, that causes existed which would
have justified Widlak's discharge. The issue for determination herein is whether he was
in fact discharged for those causes, or because of his union activity , as the General Counsel
asserts.
3 Concluding findings
The entire evidence plainly establishes that Dankner's first discharge of Widlak, on April
16, was because of his leadership in the union activities which were then getting under
way. Dankner 's bitter opposition to the Union and his disposition to retaliate against the
salesmen who were causing his "troubles" were apparent from the whole record. The timing
and precipitate nature of the discharge alone was suspect , coming as it did immediately
after the first meeting held by the Union and after Widlak's discussion with Stone and
Dankner of his participation in the organizational activities . ii But direct evidence that
Dankner, in fact, discharged Widlak because of his efforts to organize the salesmen was
supplied by the Jankowiak-Froncsak testimony, and by Widlak's testimony as to Dankner's
threats to fire him (after reinstatement) if he had anything more to do with the Union.
Corroborative, though less direct, was the testimony of Herbert and Wallace.
Dankner's attempt at the hearing to supply some colorable basis of cause for the first
discharge was exploded by the Jankowiak-Froncsak testimony of Dankner's admissions
regarding the discharge and of his explanation that the Labor Board had required Widlak's
reinstatement because Dankner had nothing on him. That such was, in fact, the case seems
implicit in Dankner ' s ready acceptance of the settlement agreement . Dankner ' s belated at-
tempts to justify his acquiescence in the settlement by attributing threats to Noonan were
of a piece with his other extravagant clauns disclosed by the record.
The evidence surrounding the second discharge is hardly less conclusive . Dankner's
bitterness toward the Union had not only continued but had increased, judging from the vehe-
mence of his statements and his openly expressed threats of reprisals and of retaliation
on account of union activities. Abandoned then were Dankner's claims of unawareness of
union activities and of the identity of the union adherents; and with the experience gained
from the first discharge and the settlement agreement , he realized (as shown by his soli-
citation of the Jankowiak statement) that he would need to support a discharge by a record
of "cause."
Of course, Widlak's leadership in the organizational activities conferred no immunity
upon him (cf. Lloyd A. Fry Roofing Company„ 85 NLRB 1222; Chance-Vought Aircraft Divi-
sion, United Aircraft Corporation, 85 NLRB 1$3; McKinney Luiriber Com n Inc., 82 NLRB
38; Central Wisconsin Motor Transport Company, 89 NLRB 1204, 1214); and espondent
"Stone's actions and his knowledge were, of course, attributable to Dankner. Dankner's
denials of knowledge of union activities and of Widlak's connection with the Union are in-
credible under all the evidence.
DANKNER MOTOR SALES 1289
was, therefore , not precluded from discharging him for cause , if cause existed , and if it
was the motivating factor , rather than retaliation for union activities.
The latter point goes to the heart of the issue surrounding the second discharge , for the
record shows that causes existed which would have justified the discharge . The critical
question is, therefore , Respondent ' s true motive , N. L. R B. v. L. Ronney & Sons Furniture
Manufacturing Co., 206 F. 2d 730 (C. A. 9), decided August 24, 1953 , since "... it matters
not that for reasons apart from union activity an employee deserves summary discharge
if as a fact the reason was union activity ." N. L. R. B. v. Electric City Dyeing Co.,
178 F . 2d 980 , 983 (C. A. 3); and see Budd Mfg . Co. v. N. L. R. B., 138 F. 2d 86, 90-91
(C. A. 3). cert. denied 321 U. S. 778; N. L. R. B. v. Whitin Machine Works, 204 F . 2d 883,
884-5 (C. A. 1), and N. L. P. B, v. Dixie Shirt Co., 176 F. 2d 969, 973 -4 (C. A. 4).
That Respondent possessed the inclination and the desire to retaliate against the Union
and its adherents was plainly established by his course of conduct from the inception of the
organizational activities , indeed , it was openly expressed by Dankner in various statements
and threats to salesmen , to outsiders (Westergren), and to customers (Jankowiak and
Wallace). Furthermore, the Jankowiak incident disclosed that Dankner was seeking an excuses
to discharge pot only Widlak, but also salesmen Rundell and Herbert, because of their
organization of the Union.
The Wallace conversation , a week later , showed that Dankner 's animosity had continued
against Widlak and other salesmen , and that he resented the fact that their organizational
efforts were putting pressure on him at a time he could not afford it. Indeed, Wallace's
testimony as to Dankner ' s attitude was in full accord with the summary which Respondent's
counsel made of it during oral argument and which he stated to be in substance as follows:
... He would like to iron out his business problems first and when his business prob-
lems were ironed out he'd be glad to sit down and talk about the Union ... Now, he
is still going through those business problems.
But, of course , Dankner's business and financial problems constituted no excuse for him
to restrain or coerce his employees in their organizational efforts , to discriminate against
them because thereof, or to delay recognition of their duly selected bargaining representa-
tive.
What the evidence establishes in its entirety is that Dankner , while adhering to his an-
nounced intention to retaliate on account of the organizational activities, proceeded some-
what more cautiously than with the first discharge, by attempting to screen his discrimina-
tory motivation behind a record of ostensible causes. But Dankner ' s true motive had been
expressed too frequently and too openly to be hidden . His final action was no more than
effectuation of his direct threat to Widlak to discharge him again ( after reinstatement)
if he had anything to do with the Union , and the similarly implied threats made during the
Jankowiak incident.
It is , therefore , concluded and found that by discharging Widlak on April 16 and on May
27, Respondent discriminated against him within the meaning of Section 8 ( a) (3) of the
Act. By said discharges and by Dankner ' s threat to discharge Widlak if he resumed his union
activities , Respondent also engaged in unfair labor practices proscribed by Section 8 (a) (1).
D. Refusal, to bargain
There is no issue herein, and it is hereby found preliminarily, that the following unit
of Respondent's employees is an appropriate one for collective bargaining:
All new- and used-car salesmen, working on salary and/or commission, employed by
Respondent at its Buffalo plant, exclusive of sales manager, general manager, office cleri-
cal employees, professional employees, guards, and all supervisors as defined in Section
2 (11) of the Act.
The issue of the Union's representative status in that unit and of Respondent's admitted
refusal to bargain with the Union turns on the validity of the election and of the Regional
Director's certification of the Union, which are attacked by the Respondent. Because of
the nature of Respondent's attack, the pertinent facts will be stated in some detail.
12 Certainly had Dankner's version of the incident been correct, it would alone have con-
stituted legitimate cause for discharge; and certainly his failure to assign it as the time of
the discharge seems inexplicable save in the light of the credited version of Jankowiak and
Froncsak.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The consent-election agreement was signed on May 18 in a meeting at the Board's Re-
gional Office attended by Dankner and his attorney, Wolkind, by Brown and Miller of AFL,
and by Shea and Freeman, field examiner and attorney of the Board, respectively. Dankner
testified that at Shea's request he produced a list of his six salesmen (including part-time
salesmen Matthies and Hasler), that Shea inquired of the union representatives, in effect,
whether the persons listed worked for Dankner, and if they were eligible to vote in the elec-
tion. Brown and Miller assented, and Miller signed the list of names. Shea also inquired
of Dankner if he would agree that the employees listed were eligible to vote and if he would
"certify" them. Dankner agreed, wrote "Above 6 men" on the list, and signed it. Dankner
testified that Shea also inquired whether he would consent to an election and that he agreed
to, "if these six men are the ones that can vote."
Wolkind testified similarly that he informed Shea that Dankner would consent to the
election as long as it was understood that the 6 employees listed were eligible to vote and
that Shea affirmed that the 6 employees would be eligible,
The agreement itself described "the appropriate collective-bargaining unit" in terms
equivalent to the unit found above, it also provided in material portions, as follows:
The eligible voters shall be those employees included within the Unit described
below, who appear on the Employer's payroll for the period indicated below [ May
14] .... At a date fixed by the Regional Director, the Employer will furnish to the
Regional Director an accurate list of all the eligible voters, together with a list of the
employees, if any, specifically excluded from eligibility ....
Objections to the conduct of the election or conduct affecting the result of the election,
or to a determination of representatives based on the results thereof, may be filed with
the Regional Director within five days after issuance of the Tally of Ballots .... The
Regional Director shall investigate the matters contained in the objections and issue
a report thereon. .If objections are sustained, the Regional Director may in his report
include an order voiditig the results of the election and, in that event , shall be em-
powered to conduct a new election under the terms and provisions of this agreement
.... If the challenges are determinative of the results of the election, the Regional
Director shall investigate the challenges and issue a report thereon. The method of
investigation of objections and challenges, including the question whether a hearing
should be held in connection therewith, shall be determined by the Regional Director,
whose decision shall be final and binding.
Wolkind testified that he had handled a number of representation matters with the Board
and had advised his clients in all of them to consent to an election.
Wolkind testified further that the day before the election Shea called him and requested
him to meet at Dankner's place, because the Union was questioning the eligibility of 1 of
the 6 employees on the list (Hasler). Wolkind and Dankner met with Shea, and Wolkind
raised the question whether the election agreement would be binding if the Union questioned
the eligibility of any of the listed employees. He told Shea, however, that though there was
no question in his mind that Hasler was properly within the unit, he and Dankner would
cooperate with the Board by supplying full information concerning him. Shea then questioned
Dankner and looked over some of Respondent's records.
At the election held the next day Hasler's ballot was challenged by Widlak, for the Union,
and, following the counting of the ballots, Wolkind stated to Shea that while Dankner was
willing to cooperate in any investigation concerning the challenged ballot, he (Wolkind) felt
that the entire election was based on the eligibility of alWWsix of the voters.
Wolkind testified further that he later again met with Shea at Dankner's during Shea's
further investigation of Hasler's eligibility, and that he again took the position that eligi-
bility had been agreed to and that the ballot should be opened and counted. Shea nevertheless
wished to proceed with his investigation and did so with Wolkind's cooperation and in his
presence . Shea first interviewed Dankner fully concerning the details of Hasler ' s employment
and prepared an affidavit for Dankner's signature. Wolkind read the affidavit and suggested
various corrections by way of insertion and deletion, which were made. Wolkind testified
that he had no objection to the completed draft which Dankner signed, but that he requested,
and Shea agreed to furnish, a copy of Dankner's affidavit, which was not done.
Wolkind and Dankner also testified that Dankner requested Shea to conduct a complete
investigation and interview all of the employees, referring to the fact that three of his sales-
men had disappeared one morning and that he had later been informed they had gone to the
Board's office to make statements.
DANKNER MOTOR SALES 1291
Wolkind also testified that after completing Dankner 's interview, Shea called in Hasler
and explored with him similarly , in Wolkind ' s presence , the full details of Hasler ' s employ-
ment , taking as in Dankner ' s case a signed statement . Wolkind testified that he took no
part in the Hasler interview save to listen , and that he did not read Hasler ' s statement but
he agreed that there was nothing improper about Shea ' s questioning of Hasler Wolkind
agreed also that Dankner and Hasler were the persons who were best informed as to Hasler's
duties and the details of his employment.
Obstein testified that he was not interviewed by Shea or by anyone else with the Board
concerning Hasler 's employment He was questioned briefly about the subject by Wolkind
while on the witness stand, but disclosed that he had in fact slight knowledge of Hasler's em-
ployment status.
On June 17 , the Regional Director issued his "Report on Challenged Ballots and Certi-
fication of Representatives ," reciting among other things that , acting pursuant to the author-
ity conferred by the consent -election agreement , he had duly investigated the challenged
ballot. The report continued with the following findings:
The ballot of Robert Hasler was challenged by the Union on the ground that he was
not a regular part-time employee of the Company on the eligibility date but that his
employment was sporadic in nature . The investigation revealed on the weight of the
credible evidence that on the eligibility date Hasler was not a regular part-time em-
ployee but merely acted as an outside contact man and that his regular employment,
if any, was begun after the eligibility date . The undersigned therefore finds that Hasler
was not an eligible employee and the challenge to his ballot is hereby sustained.
The report concluded with the certification of the Union , pursuant to Section 9 (a) of the
Act, as the exclusive representative of Respondent ' s employees in the unit
Wolkind testified that upon receipt of the Regional Director ' s report he prepared and
filed, with the Regional Director and the Board's Washington Office , objections and excep-
tions which asserted , in effect, that the execution of the consent -election agreement was
conditioned on the stipulation between Respondent and the Union as to the eligibility of
the six employees , including Hasler, and that unless all of the persons listed were eligi-
ble to vote , the agreement was void and the election a nullity. The exceptions also stated
that Hasler was , in fact, a recognized part- time employee on the eligibility date and prior
thereto, but that since Respondent had not been advised of the basis on which the Regional
Director had found that Hasler was not a regular part-time employee , Respondent was
unable to specifically rebut the same.
On June 24 , the Board 's assistant executive secretary wrote Respondent , calling atten-
tion to the contents of the consent -election agreement , and informed Dankner that it was
its firm policy that where parties had entered into such an agreement , it would not intervene
when any of the parties indicated disapproval of the judgment exercised by the Regional
Director in sustaining the challenge to a ballot and issuing a certification of representa-
tives, and that the Board would accordingly not entertain an appeal from the Regional Direc-
tor's action and would not consider Respondent ' s objections and exceptions.
On June 25 , the Regional Director issued his supplemental report on challenged ballots,
stating that he had carefully reconsidered the entire matter and that he reaffirmed his
original findings and his certification of representatives
On June 29, Respondent filed additional exceptions and protests to both of the Regional
Director ' s reports on grounds substantially the equivalent of those formerly asserted,
plus additional grounds that the Board's investigation was improperly conducted , that the
Regional Director 's findings were not based on proper evidence nor on a proper consid-
eration of evidence , and that Respondent was not confronted with , or given an opportunity
to rebut , such factual evidence which the Regional Director may have considered in making
his deterrmnation.
Around the beginning of July Respondent made certain changes in his method of paying
wages to the salesmen ( including sharing in the profits of the business) and in their hours
of work, which changes were made without notification to or consultation with the Union.
On or about August 4, the Union requested Respondent to bargain with it as the exclusive rep-
resentative of Respondent ' s employees in the unit above-described, but Respondent refused
to bargain.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Under Section 9 of the Act, the Board is empowered to investigate and determine all repre-
sentation and election questions, including, of course, questions concerning an appropriate
unit and the eligibility of voters. In fact, the determination of eligibility is usually no more
than an hoc determination whether the challenged voter appropriately belongs within or
without the unit whose representation is at issue . Obviously, therefore, the eligibility ofem-
ployees to vote in an election cannot be controlled by agreement of the parties , for otherwise they
would usurp the Board's powers on a crucial matter specifically entrusted to itby the statute}9
And assuming, as Respondent contends, that its consent to the election was conditioned
on its understanding that its agreement with the Union resolved all questions of eligibility, u
yet it had ample opportunity , after notice , to withdraw its consent and to refuse (without
penalty) to proceed with the election.15 Thus, its experienced labor counselor was fully in-
formed before the election that the Union was questioning Hasler's eligibility, and, in fact,
participated with the field examiner in a preliminary investigation of Hasler' s status Re-
spondent's acquiescence in the election thereafter indicated plainly that he had waived
or abandoned any claim that the consent- election agreement was invalid and that he had
elected to permit the eligibility question to be determined by the election procedures es-
tablished by the agreement.
In any case, the record contains to this point no suggestion of fraud or bad faith on the
Regional Director' s part in proceeding with the election, nor any that his action in doing
so was arbitrary or capricious.
Nor does the Regional Director's subsequent handling and investigation of the challenged
ballot reflect other than the following of the normal procedures provided for in the election
agreement and in the Board's Regulations . Welkind was again notified of the investigation,
he was present and participated in the interview of Dankner; and he read over, corrected,
and approved the affidavit which Dankner signed . Wolkind was also present, at his express
request, when Hasler was interviewed, and he admitted, as a witness , that Shea' s questioning
was properly conducted and that Hasler and Dankner were the persons most fully informed
concerning Hasler's employment and duties. Since the latter fact is obvious, no inadequacy
of investigation is suggested by the record herein , despite Dankner ' s request to Shea that
he make a full investigation by interviewing all the salesmen.
Indeed, Dankner' s suggestion had emanated from reports that 3 of his salesmen had
absented themselves from work to be interviewed at the Board ' s office during the investi-
gation. That left only 1 salesman (Obstein) to be accounted for, since Hasler had been
interviewed and Widlak had been discharged Called as Respondent 's witness , Obstein
testified that he was not interviewed during the investigation , but it was obvious from his
testimony that he knew little concerning Hasler 's employment status and nothing concern-
ing which Dankner and Hasler were not better informed.
Furthermore, Respondent was free, if he had entertained doubts as to the character
of Shea' s investigation , not only to notify the Regional Director of his objections, but also,
if his doubts persisted , to request the Regional Director to hold a hearing for the purpose
of determining the issues.16 The latter circumstance , coupled with the nature of the inves-
tigation and the fact of Wolkind's participation, explode completely Dankner ' s charges, ad-
iiCf. Lima Hamilton Corporation, 87 NLRB 455, where in a UA proceeding the Board re-
jected the employer 's reliance on the factthat in the representation proceeding the parties had
stipulated that certain employees were eligible to vote.
uA somewhat similar defense was rejected in Volney Felt Mills, Inc., 101 NLRB 1516,
where the employer contended that the eligibility of employees to vote in a consent election
was established by the acceptance by the union and by the Board 's representative of an eligi-
bility list prior to the election, and that "the very basis upon which Respondent sought and
agreed to the election was that those employees whom it considered eligible would , in fact,
be permitted to vote."
15 The Board 's regulations and procedures provide no sanctions for withdrawal of consent
to an election in such a case.
>G There is no evidence that the Regional Director would have failed to accord due con-
sideration to such a request, determination of which was also entrusted to him under the
election agreement.
DANKNER MOTOR SALES 1293
vanced for the first time late in his examination , that Shea ' s conduct showed that he was
biased and prejudiced and that he had conducted a one-sided investigation by talking only
"to those whom he thought would be in favor of the decision." Indeed, further examination
showed that Dankner based his conclusion of bias and prejudice on the mere fact that Shea
at one point questioned briefly the handwriting in which Hasler ' s name had been entered
on Respondent 's payroll.
As to the merits of the Regional Director ' s rulings on the challenged ballot , it is now
clearly established that nothing short of arbitrary or capricious action by the Regional
Director will invalidate his decision which the parties had agreed to accept as final,
N. L. R. B, v General Armature and Mfg . Co., 192 F 2d 316 (C. A. 3), enforcing 89 NLRB
654; Semi -Steel Casting Co. v. N . L. R. B., 160 F. 2d 388 (C. A. 8) cert. denied 332 U. S. 758;
N. L. R. B . v. Capitol Greyhound Lines , 140 F. 2d 754 (C. A. 6), cert . denied 322 U . S. 763,
It is , therefore , not enough for Respondent to show merely that the rulings complained of
were erroneous , for were it conceded that the Regional Director commited an "error in
judgment ," his determination must stand unless it be further found to be arbitrary or ca-
pricious . Merrimac Hat Corp., 85 NLRB 329 , 331 Indeed , even though the Board might
have reached a different conclusion on the merits , it deems the Regional Director 's deter-
mination to be final in consent elections of this character in the absence of fraud, mis-
conduct , or such gross mistakes as to imply bad faith . McMullen Leavens Co ., 83 NLRB
948, 955; General Armature & Mfg. Co ., 89 NLRB 654, 659
The latter principle has been many times applied by the courts in analogous situations.
See, for example , United States v. Moorman , 338 U. S. 456 , 460, 461, United States v Gleason
175 U. S. 588, 602; Kihlberg v. United States , 97 U. S. 398 ; and Chicago etc. R. Co . v. Price,
138 U. S. 185 . Indeed, in its most recent application of this principle , the Supreme Court
imposed a further limitation on attempts to overturn determinations of the present charac-
ter, equating the phrase "such gross mistakes as imply bad faith " with fraud itself. Thus, in
United States v. Wunderlich . et al., 342 U. S. 98, the Court , after referring to the foregoing
principle and to the line of cases in which it was established , held that:
Despite the fact that other words such as "negligence ," " incompetence," " capricious-
ness," and "arbitrary " have been used in the course of the opinions , this Court has
consistently upheld the finality of the department head's decision unless it was founded
on fraud , alleged and proved . So fraud is in essence the exception . By fraud we mean
conscious wrongdoing , an intention to cheat or be dishonest . The decision of the depart-
ment head , absent fraudulent conduct, must stand under the plain meaning of the con-
tract.
An examination of the evidence which Respondent offered at the hearing on the merits
of the Regional Director ' s ruling17 does not disclose that he acted arbitrarily or capri-
ciously in his ruling sustaining the challenge to Hasler 's ballot . Even when Respondent's
evidence is considered alone , and without reference to any countervailing evidence which
may have been developed during the Regional Director ' s investigation , the most that can be
said is that it suggests only the possibility that the Regional Director may have erred on
th-, merits .18 In any event , the Board will not substitute its judgment on the merits for
that of the Regional Director , absent the showing which is requisite under the foregoing
authorities . Since Respondent has here failed to make that showing, his attack on the vali-
dity of the election and on the Regional Director ' s certification fails of support.
It is , therefore , concluded and found that Respondent ' s refusal to bargain with the Union
on August 4, and since , constituted an unfair labor practice proscribed by Section 8 (a) (5)
and (1). It is also concluded and found that Respondent's unilateral changes, early in July,
17 The General Counsel objected to some of that evidence on the ground that the Regional
Director had finally determined the matter in the representation proceeding ( as authorized by
the election agreement), and that it had no relevancy in the present proceeding. The evidence
was received , however, as relevant to Respondent's claim that the Regional Director had
acted arbitrarily and capriciously.
is See e. g., Seventeenth Annual Report, NLRB (1952), p. 94, and cases cited.
That a Regional Director may err in deciding a question of law does not mean that he is
arbitrary , for otherwise any dissenting Board member or judge would be considered arbitrary
in dissenting from a majority decision on a legal question.
337593 0 - 55 - 83
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the wages and hours of the salesmen, constituted a further violation of Section 8 (a) (1),
though not a refusal to bargain under Section 8 (a) (5), because no request to bargain had then
been made by the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, occurring in connection with Re-
spondent's operations described in section I. above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of thereof.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take affirmative action
designed to effectuate the policies of the Act
It having been found that Respondent engaged in certain acts of interference, restraint,
and coercion, it will be recommended that Respondent cease therefrom. It having been found
that from August 4, 1953, and thereafter Respondent refused to bargain collectively with
the Union, it will be recommended that Respondent, upon request, bargain collectively
with the Union.
It having been found that Respondent discriminatorily discharged Chester Widlak on April
16, and May 27, respectively, and that it discriminatorily refused to reinstate him from
April 16 to April 23, inclusive, and after May 27, 1953, it will be recommended that Re-
spondent offer him immediate and full reinstatement to his former or substantially equiva-
lent position (see The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827), without prejudice to his seniority or other rights and privileges and
make him whole for any loss of pay that he may have suffered by payment to him of a sum
of money equal to that which he normally would have earned from April 16 to April 23,
inclusive, and from May 27, 1953, to the date of Respondent's offer of reinstatement, less
his net earnings during said period and less the sum of $ 100 paid to Widlak at the time
of his reinstatement on April 2319 Cf. Crossett Lumber Company, 8 NLRB 440, 497-8
The computations of loss of pay as recommended shall be made on a quarterly basis in
the manner provided in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1 The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. All new- and used-car salesmen, working on salary and/or commission, employed
by Respondent at his Buffalo plant, exclusive of sales manager, general manager, office
clerical employees , professional employees , guards, and all supervisors as defined in
Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act
3. At all times on and after June 17, 1953, the Union has been the exclusive bargaining
representative of Respondent's employees in said unit.
4. Respondent has violated Section 8 (a) (5) and (1) of the Act by failing and refusing
to bargain with the Union on and after August 4, 1953.
5 By discriminating in regard to the hire and tenure of employment of Chester Widlak,
thereby discouraging membership in the Union, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
19 The evidence establishes that although Widlak had originally been employed under a
guaranteed weekly salary of $100 a week; he was placed on a straight commission basis be-
ginning April 13, with a drawing account of $60 a week. Consequently, the payment of $100
under the settlement agreement did not correctly reflect the amount of the back pay due him,
which can only be determined by averaging his commissions over'a representative period and
by deducting any net earnings during the period of the discrimination against him.
SEABOARD PACKING COMPANY 1295
6. By interfering with, restraining , and coercing his employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recorpmendations omitted from publication.]
SEABOARD PACKING COMPANY and FEDERAL LABOR
UNION NO. 24753, A. F. OF L. Case No. 1-CA-1334. February
25, 1954
DECISION AND ORDER
On August 31, 1953, Trial Examiner John C. Fischer issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had not engaged in the unfair
labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety , as set forth
in the copy of the Intermediate Report attached herto. There-
after, the General Counsel and the Union filed exceptions to
the Intermediate Report. The General Counsel and the Re-
spondent filed briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the find-
ings, conclusions , and recommendations contained in the In-
termediate Report.
[The Board dismissed the complaint.]
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations Act (61
Stat. 136) against Seaboard Packing Company, Respondent, upon charges duly filed by Federal
Labor Union No. 24753, A. F. of L., was heard by John C. Fischer, duly appointed by the
Chief Trial Examiner and pursuant to due notice, in Machias,. Maine, on June 3, 4, and 5,
1953. A complaint was issued by the General Counsel of the National Labor Relations Board
and an answer was filed by the Respondent. The complaint which was issued on March 18,
1953, was based upon a charge filed by the Union and alleged in substance that the Respond-
ent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5) of the
Act by discharging and/or locking out and refusing to reinstate all of its employees em-
ployed in its plant at Lubec, Maine, which plant Respondent closed down on July 19, 1952.
All parties were represented at the hearing and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , to introduce relevant evidence , to argue orally,
and to file briefs and proposed findings and conclusions. A motion made by the General
Counsel, and agreed to by Respondent's counsel, to amend the complaint in two respects
was granted: Paragraph 5 of the complaint was amended by the substitution of the date
107 NLRB No. 273.