Bauman Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1968

173 N.L.R.B. 474 (N.L.R.B. 1968)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bauman Chevrolet, Inc. and International Association
of Machinists and Aerospace Workers , District No.
63, AFL-CIO. Case 6-CA-4165
October 30, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 22, 1968, Trial Examiner David London
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and Respondent each filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, except as modified herein.
The Trial Examiner found that following the
Union's initial demand for recognition on January 19,
1968, the Respondent engaged in a course of conduct
consisting of coercive interrogations and threats of
retribution in violation of Section 8(a)(1) of the Act,
and he concluded that the Respondent's refusal to
recognize and bargain with the Union was motivated
by a rejection of the collective-bargaining principle or
a desire to gain time in which to undermine the
Union's majority and violated Section 8(a)(5).2 The
Respondent urges that even if the violations of
Section 8(a)(1) found by the Trial Examiner are
sustained by the Board, the violations are not
sufficient to justify the 8(a)(5) finding or a bargaining
order. We do not agree with this contention, and for
the reasons set forth below we adopt the conclusion
of the Trial Examiner that the Respondent violated
Section 8(a)(5) of the Act.
We find, as discussed by the Trial Examiner, that
following the demand for recognition the Respondent
engaged in the following violations of Section 8(a)(1):
(a) Nuzum, Respondent's General Manager,
coercively interrogated employee Aducci concerning
his participation in the organizing campaign and
threatened Aducci that the business might close as a
result;
(b) Bauman, Respondent's President, coercively
interrogated employee Trujillo concerning union
meetings and as to whether Trujillo had signed an
authorization card;
(c) Bauman threatened employee Folden that
organizing a union might result in closing the busi-
ness,
(d) Bauman coercively interrogated employee
Aducci as to "what started all of this";
(e) Bauman threatened seven employees in the
body shop that retribution might result from orga-
nizing a union.
In addition, there is uncontroverted evidence estab-
lishing that the Respondent engaged in other viola-
tions of Section 8(a)(1). In particular, (1) Bauman
interrogated employee Aducci as to whether he made
the call to the Union, and created the impression of
surveillance by his remark to Aducci that "In the
other shop they think you did;" (2) Bauman interro-
gated employee Thomas as to what he believed the
Union could do for him; and (3) Bauman coercively
questioned Aducci as to whether Bauman had actu-
ally threatened to close the business if the organizing
were successful and rebuked Aducci for not stating
that Bauman had not made such a threat. Considering
these numerous violations, the conclusion is war-
ranted that the Respondent's refusal to recognize and
bargain with the Union was prompted by a rejection
of the collective-bargaining principle, and a desire to
gain time in which to undermine the Union's
majority.'
Moreover, the evidence is clear that the Re-
spondent had no good-faith doubt of the Union's
majority. When the Union demanded recognition on
January 19, 1968, the Respondent's officials exam-
ined the authorization cards and agreed that the
Union represented a majority of the employees.
Thereafter, the Respondent ignored two written
requests by the Union to meet and bargain, but at no
time until the hearing more than 4 months later did
the Respondent ever express a desire for an election
or a doubt of the Union's majority status. For this
additional reason, we find the Respondent violated
Section 8(a)(5).
I The Respondent has excepted to certain of the Trial Examiner's
credibility findings. As we are not persuaded that a clear preponderance
of all the relevant evidence shows that that the Trial Examiner's
resolution of credibility issues was incorrect , we find insufficient basis
for disturbing his credibility findings . Standard Dry Wall Products, Inc.,
91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
2 Joy Silk Mills v. N.L .R.B., 185 F.2d 732 (C.A.D.C.), cert. denied
341 U. S. 914.
3 N.L.R.B. v. Quality Markets, Inc., 387 F.2d 20 (C.A. 3).
173 NLRB No. 78
BAUMAN CHEVROLET, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Bauman Chevrolet, Inc., Wilkinsburg, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
Substitute the attached notice as an appendix for
the one recommended by the Trial Examiner.
APPENDIX
NOTICE TO ALL EMPLOYEES
This Notice is Posted by Order of the
National Labor Relations Board
After a trial at which all sides had the chance to
give evidence, the National Labor Relations Board
found that we, Bauman Chevrolet, Inc., violated the
National Labor Relations Act, and ordered us to post
this Notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT ask you whether you are a union
member of, or are helping International Association
of Machinists and Aerospace Workers, District No.
63, AFL-CIO, or any other union.
WE WILL NOT threaten you with a sale of our
business or with other harm because of your
membership in or support of a union.
WE WILL NOT create the impression of spying on
your organizing activities.
WE WILL recognize International Association of
Machinists and Aerospace Workers, District No 63,
AFL-CIO, as the only collective-bargaining repre-
sentative of our employees in the bargaining unit
which is
All service department employees, new and used
car department employees, and parts department
employees, at our Wilkinsburg, Pennsylvania,
facilities, excluding salesmen, office clerical em-
ployees, and supervisors as defined in the Act.
WE WILL bargain, on request, with International
Association of Machinists and Aerospace Workers,
475
District No. 63, AFL-CIO, on wages, hours and
conditions of employment , and any agreement we
reach will be put in writing and signed.
BAUMAN CHEVROLET, INC
(Employer)
Dated By
(Representative ) (Title)
This Notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this Notice may be
directed to the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2969.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID LONDON, Trial Examiner Upon a charge filed and
served February 12, 1968, by International Association of
Machinists and Aerospace Workers, District No. 63, AFL-CIO
("the Union"), the General Counsel of the Board, on March
25, 1968, issued the complaint herein alleging that Bauman
Chevrolet, Inc ("Respondent") had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended ("The Act"). In
substance, the complaint alleges that Respondent (1) engaged
in specified conduct interfering with, restraining and coercing
its employees in the exercise of rights guaranteed in Section 7
of the Act, and (2) that since on or about January 19, 1968,
refused to recognize and bargain with the Union as the duly
designated collective-bargaining representative of an appro-
priate unit of its employees with respect to rates of pay, wages,
etc. By its answer, Respondent denied the commission of any
unfair labor practices.
The hearing herein was conducted at Pittsburgh, Pennsyl-
vania on May 20-21, 1968, at which the General Counsel and
Respondent appeared by counsel and were afforded full
opportunity to examine and cross-examine witnesses, and to
introduce evidence upon the issues of the case. Briefs filed by
the General Counsel and Respondent have been fully con-
sidered
Upon the entire record in the case' and my observation of
the demeanor of the witnesses who testified, I make the
following-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
During all times relevant herein, Respondent was and is a
Pennsylvania corporation engaged in the retail sale and
servicing of new and used motor vehicles at its place of
1 Motions made during the hearing , on which ruling was reserved,
are disposed of in accordance with the findings and conclusions that
follow.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business in Wilkinsburg, a suburb of Pittsburgh, Pennsylvania.
During the year preceding the issuance of the complaint
herein, Respondent's gross sales were in excess of $500,000,
and received goods and products directly from outside the
Commonwealth of Pennsylvania valued in excess of $50,000.
The complaint alleges, the answer admits, and I find that
Respondent is, and during all times relevant was, engaged in
commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all time material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
At the hearing, the parties stipulated that the following
employees of Respondent constitute an appropriate collective-
bargaining unit within the meaning of Section 9(b) of the Act
All service department employees, new and used car depart-
ment employees, and parts department employees at Respon-
dent's Wilkinsburg, Pennsylvania, facilities, excluding salesmen,
office clerical employees and guards, professional employees
and supervisors as defined in the Act. It was further stipulated
that on January 19, 1968, there were 32 employees in that
unit.
On January 19, 1968,2 Theodore C. Bold, the Union's
business representative, accompanied by Ralph E. McFarland,
an organizer for the Union, went to Respondent's premises and
introduced themselves to Jerry Nuzum, Respondent's "general
manager," and Raymond Baldwin, its used car manager.
Following the introductions and Nuzum's statement that he
had been "expecting" this visit, Bold told Nuzum that he
represented a majority of the employees in the unit described
above and asked whether Nuzum had any doubt concerning
that representation. Without apparently waiting for an answer,
Bold removed from his pocket 18 cards purporting to be
signed by employees designating the Union as their bargaining
representative and told Nuzum that he had proof of the
Union's majority. Nuzum asked to see the cards and Bold
handed the 18 cards to him. Nuzum "looked at them, one by
one, individually, and passed them, one by one, to [Baldwin]
who also looked at them individually." After the cards were
returned, Bold asked Nuzum and Baldwin if the cards
exhibited to them were 18 in number and constituted the
majority of Respondent's employees and both men answered
affirmatively. Bold thereupon took "a recognition agreement"
from his pocket and asked Nuzum if he would like to sign it.
Nuzum, without reading the agreement, replied that he would
not sign it, that he would have to await instructions from
William L. Bauman, president and principal stockholder of
Respondent, who was then in Florida
The foregoing findings pertaining to the January 19 meeting
are based on the composite testimony of Bold and McFarland
which I unhesitatingly credit. Much of it was corroborated by
Nuzum and Baldwin. The only material respect in which
Nuzum's testimony varies from that of Bold and McFarland,
2 Unless otherwise specified , all reference to dates herein are to the
year 1968.
but which I do not credit, is as follows Nuzum testified that
immediately after Bold identified himself and told him that he
represented the majority of Respondent's employees, he
(Nuzum) told Bold that he did "not believe that [Bold]
represented a majority of [Respondent's] employees "Nuzum
further testified, however, that at that point Bold pulled some
cards out of his pocket, stated that he had proof of his claimed
majority, and asked Nuzum whether he would like to see the
cards and that he replied affirmatively. Nuzum further testified
that he hesitated for a moment but then took the cards
following which he and Baldwin "glanced through the cards"
and handed them back Nuzum admitted that it was at this
point that Bold asked: "Now, will you recognize that we are
the bargaining agent for your employees" and that his only
reply thereto was that he had "no authority to recognize or
negotiate with anyone, Mr. Bauman will have to do that," and
he would notify both Bauman and his attorney. After
examining the cards, Nuzum made no claim or assertion that
he entertained any doubt concerning the Union's majority
status. Indeed, insofar as the record discloses, he had no reason
to entertain such a doubt. His refusal to examine and sign the
recognition agreement tendered him was based solely on the
claimed lack of authority to grant such recognition.
Bauman returned from Florida on January 22 or 23 at
which time Nuzum "told him what had transpired" at the
meeting with Bold on January 19. On January 23, Respondent
received the Union's letter of January 22 again asserting its
status as majority representative of Respondent's employees
and renewing its demand for recognition and bargaining
Though the demand was repeated by the Union's letter of
January 31, Respondent has steadfastly ignored that demand.
This, notwithstanding that at no time after Nuzum and
McFarland on January 19 examined the 18 cards designating
the Union, until the hearing herein, 4 months later, was there
any challenge of the authenticity of those cards, nor was there
any doubt proclaimed by anyone in behalf of Respondent
concerning the Union's majority status.
At the hearing, 22 cards, dated January 17 or January 18,
designating the Union as collective-bargaining representative
and purporting to be signed by 21 employees in the 32
member unit were received in evidence 3 Bold testified that 12
of these cards, General Counsel's Exhibit 4-a to 4-1 inclusive,
purporting to bear the signature of 12 employees in the unit,
were individually handed to him at a meeting with the men on
January 17 by the employees whose purported signature
appears thereon Though Bold admitted that he did not
actually see any of these employees sign or date the card, "the
Board, with court approval has held ... that cards are properly
authenticated through witnesses who testify to receiving a
signed card from the signatory employee." McEwen Manu-
facturing Company, 172 NLRB No. 99; Marlene Industries
Corporation, 171 NLRB No 118; Hunter Engineering Com-
pany, 104 NLRB 1016, 1020, enfd. 215 F.2d (C.A. 8). In any
event, 7 of these 12 employees testified that they signed and
dated their cards.
Five cards, General Counsel's Exhibit 6-a, b, c, d, and f,
purportedly signed by members of the unit, were identified by
David Folden, a member of the unit, who testified credibly
3 Two cards were signed by Stephen Bachner, G .C. Exhs. 4(e) and
8(d), only one of which is counted in establishing the Union's majority
status
BAUMAN CHEVROLET, INC.
that he saw each signatory to these five exhibits sign and date
the card bearing his signature. An additional card, Exhibit 6-e,
was properly authenticated by the signer thereof. Four cards,
General Counsel's Exhibit 8-a, c, d and e were identified by
Witham Johns, a member of the unit who testified credibly
that he received these cards from the signers thereof, all of
them members of the unit involved, and saw each of them sign
their card.
The principal objection urged by Respondent to the
admissibility of the cards authenticated only by others than
the signatories thereof is that the "best . and proper person
to identify [them] would be the person who signed the card
rather than" the witness who saw the signatory attach his
signature. Though it may be conceded that the "best" method
of establishing the authenticity of the card is as Respondent
suggests, it does not follow that it is the only method, or that
the course pursued by the General Counsel is improper At the
very least, "the General Counsel adequately made out a prima
facie showing by the testimony he did present to support the
admissibility of the cards as evidence of the Union's majority.
And, absent rebutting evidence, Respondent made no effort to
adduce any, the cards . . must be given probative force."
Northwest Engineering Company, 158 NLRB 624, 629 Nor is
there any merit to the contention that with respect to some of
the cards the record fails to expressly establish that the
signatories read the card before attaching his signature. The
signatures having been properly authenticated, and there being
no proof to the contrary, it may reasonably be assumed that
each signer read the card before he signed it.
The record discloses that the 21 cards relied on by the
General Counsel were of two types Seventeen were of the
type reproduced at the top of Exhibit A hereto attached
[Appendix A omitted from publication] and the remainder
were of the type reproduced on the lower part of said Exhibit.
In his closing argument, Respondent contended that the card
of James Weixel, of the type reproduced on the upper part of
Exhibit A, "should be disregarded for the purpose of estab-
lishing majority status, inasmuch as the printed material on
that card established an alternative procedure in connection
with a representation claim, either to support a demand for
recognition or an NLRB election, and that James Weixel had
no knowledge of that alternative position by virtue of not
reading the card or having the card read to him."4 Though,
during the hearing, the objection pertaining to the dual
purpose of the card was urged only with respect to the card of
Weixel, Respondent, in its brief, urges that I consider this
variance in the cards with respect to the 16 other cards which
make similar reference to an election. Having done so, I
conclude that all of these cards are valid designations of the
Union as collective-bargaining representative by the signatories
thereto.
To begin, there is not a scintilla of evidence that any
employee was told that the card would be used only to get an
election, a situation considered by the Board in Cumberland
Shoe Corporation, 144 NLRB 1268, enfd. 351 F 2d 917 (C.A.
6). Here, by signing the card in question each signatory agreed
"that this card may be used either to support a demand for
recognition or any NLRB election, at the discretion of the
Union." By that grant of authority, each signatory did not
4 David Folden, who obtained Weixel 's card and saw him sign it,
testified that he told Weixel that the card "was for union recognition"
and denied that he told Weixel "that the card was for an election."
477
restrict its use for election purposes only. Instead, it vested the
Union with discretion to use the card for that purpose if, in its
judgment, not in the judgment or under direction of the
signatory, it became advisable or necessary to do so. And where
cards are solicited "for the dual purpose of (a) petitioning the
Board for an election, and (b) authorizing the Union to
represent the employees as their collective-bargaining
agent.... [the cards are] valid designations of the Union as
bargaining representatives of the employees." Lenz Company,
153 NLRB 1399, 1401-02; The Shelby Manufacturing Com-
pany, 155 NLRB 464; General Steel Products, Inc., 157 NLRB
636, 644, and cases cited therein.
"The central inquiry in determining the effect to be given
authorization cards is whether the employees by their act of
signing clearly manifested an intent to designate the union as
their bargaining agent. The starting point, in assessing that
intent, is the wording of the card. Where the card on its face
clearly declares a purpose to designate the Union, the card
itself effectively advises the employee of that purpose, and
particularly so where, as here, the form of the card is such as
to leave no room for possible ambiguity," Levi Strauss & Co.,
172 NLRB No. 57, McEwen Manufacturing Co., 172 NLRB
No 99.
Here, the forthright and unambiguous pronouncement at
the top of all the cards, printed in bold contrasting red color
almost ih inch high: "YES, I WANT THE I A.M." leaves no
doubt as to the intent to designate the Union. The only
implication that arises therefrom is that by signing the card
each signatory clearly and unequivocally expressed his desire
for representation by the Union and that if, in the judgment of
the Union, an election became necessary, all the signatories
would vote for the Union.
Respondent's final contention with respect to the cards,
that the Union, in effect, withdrew its demand for recognition
based on its designation cards by filing a petition for election
and certification by the Board is equally without merit. The
Board, with court approval, has repeatedly held that a "union
does not withdraw or waive its demand [for recognition and
bargaining] by seeking an election when the Employer makes
it clear that it will not recognize the Union." N.L.R.B. v
Elliott-Williams Co., 345 F.2d 460 464 (C.A. 7),N.L.R.B. v.
Inter-City Advertising Co., 190 F.2d 420, 421 (C.A. 4);
N.L.R.B. v. Model Mill Co., 210 F.2d 829, 830 (C.A. 6),
N.L.R.B. v. Storack Corp., 357 F 2d 893, 895 (C.A. 7).
On the entire record I find that on January 17-18, 1968, a
majority of the employees in the unit heretofore described
designated the Union as their representative for the purpose of
collective-bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment. In ac-
cordance with Section 9(a) of the Act, the Union thereby
became the exclusive representative of all the employees in
that unit for the purposes described immediately above.
It being undisputed that Respondent ignored the Union's
letter of January 22 and January 31 asking for recognition and
an appointment to negotiate a contract, I find that its failure
and refusal to do so was not occasioned by any doubt, in good
faith or otherwise, concerning the Union's majority status.
Even if it be assumed, as Nuzum testified, that he told Bold
that he did not believe that the Union represented a majority
of the employees, "a good faith doubt is not established
merely by an assertion but must have some reasonable or
rational basis in fact." N.L.R.B. v. Sinclair Co., 397 F.2d 157
(C.A. 1, 1968), citing N.L.R.B. v. Superior Sales, Inc., 366
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 229, 237 (C.A. 8). If, indeed, Nuzum entertained or
expressed such doubt it was, according to his own testimony,
dispelled when he took the cards tendered by Bold and
"glanced" through them. Thereafter, neither he, nor anyone
else in behalf of Respondent, expressed any such doubt.
Nor is there any merit to Respondent's contention that
Nuzum was without authority to grant the requested recogni-
tion. Respondent's answer admits he was its "General Man-
ager" and Bauman testified that during his absences from the
city, which are frequent and prolonged, Nuzum "is in charge
of the whole place,-he is the Boss "
On the entire record I find that Respondent's refusal to
recognize and bargain with the Union was motivated, as will
hereafter appear, by a rejection of the collective-bargaining
principle or a desire to gain time to dissipate the Union's
majority, thereby violating Section 8(a)(5) and (1) of the Act.
Joy Silk Mills v. NL.R.B , 185 F.2d 732 (C A.D.C.), cert
denied 341 U S. 914, N L.R.B. v. Big Ben Department Stores,
Inc , 396 F.2d 786 (C A. 2, 1968)
On January 19, the day that the Union demanded recogni-
tion by Respondent, employee John Aducci was called to
Nuzum's office. According to Aducci's uncontradicted testi-
mony this was the first time during his entire period of 22
years employment by Respondent that he was summoned to
the manager's office concerning matters other than in con-
nection with some phase of his work. After some inconse-
quential talk, Nuzum asked Aducci what was "new." Ap-
parently concluding that Nuzum was referring to the designa-
tion of the Union by Respondent's employees,s Aducci asked
Nuzum why he had been called and why Nuzum was not
"talking to everybody that signed cards." Nuzum answered
that all that he had to do was to talk to Aducci because
without him, "it," i.e., the union movement, "could not have
gotten off the ground." Nuzum further told him that the
Company had lost $93,000 in 1967 and that if it did not
"procede to make some money, [he] and Mr Bauman [were]
going to retire to Florida."
Consideration of the entire incident, viewed in light of what
follows, convinces me that Aducci was summoned to the office
on January 19 for the purpose of ascertaining the extent of his
activities in behalf of the Union and to subtly threaten that, if
the movement was successful, Respondent's business would be
closed Mid-State Beverages, 153 NLRB 135, 141.
Bauman returned from Florida on January 22 or 23.
Andrew Trujillo, employed by Respondent for 25 years,
testified that on the day Bauman returned, he approached
Trujillo at his work bench and asked him whether he knew
"anything about a meeting the employees had concerning a
union." When Trujillo answered affirmatively, Bauman asked
him whether he had signed "one of those cards" and Trujillo
acknowledged that he had done so. Bauman, who was present
in the hearing room and heard Trujillo's testimony, admitted
that he had such a conversation with Trujillo and that it was
"just about like he [testified] ."
On the day Bauman returned from Florida, he approached
employee David Folden and told him that his return was
occasioned by a telephone call he received the night before. He
further told him that the "first thing he did when he
[returned] was to contact a Chevrolet representative at
General Motors to find out who he could turn his business over
5 Nuzum admitted that he talked to three or four employees about
the Union . Though he did "not directly" mention the Union, he
testified that it may have been "implied."
to, or sell it." Though Bauman also told him that Respondent
had lost between $70,000 and $90,000 during the last 2 years,
he added that he was, nevertheless, planning on building a new
body shop and had bought the land for it. On the same day,
Bauman asked Aducci "what started all this," an inquiry which
could, in light of a statement to Folden at about the same time
that he did not "understand why the men want to pay money
and go union," have reference only to the union activities of
Respondent's employees.
On the day, or the day following his return from Florida,
while the seven men in the body shop were eating their lunch,
Bauman asked to join the group. During that meeting, Bauman
told the men that while in Florida he received "an urgent
telephone call and had to come home right away." He added
"When I got wind of this, the first thing I did when I got back,
I called Chevrolet Motors, and talked to the representatives
from Chevrolet Motors, and I asked them what I could do and
what I couldn't do."
Although Bauman, during this meeting discussed Respon-
dent's losses of the previous years, on the entire record I do
not credit his testimony that his return to Pittsburgh was
prompted by a sudden discovery that he had lost $70,000 to
$90,000, or that his call to General Motors about a sale was
occasioned by his losses in the operation of his business
Instead, I find that both were occasioned by the Union's
demand for recognition. Nor do I credit his testimony that at
the lunch meeting he told the men that unless there was an
improvement in the business he "might have to liquidate "
Instead, I credit the testimony of John Barbarino and Henry
Zaccari that, though the business losses had been discussed,
Bauman told the men on this occasion "that the only [reason]
he would go out of business would be if his doctor told him to
go out of business, or his wife said that he ought to get out."
In light of this assurance, and there being no testimony that
either his doctor or wife had told him to go out of business, I
conclude that Bauman's reference to his call to General Motors
about a sale of the business was intended as a veiled threat to
the employees that if the Union became their collective-
bargaining representative he would sell his business.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activity set forth in section III, above,
occurring in connection with Respondent's operations de-
scribed in section 1, 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 commerce.
Upon the basis of the foregoing findings of fact, and on the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. By interrogating its employees concerning their union
membership or activities and by threatening them with the sale
of its business if the Union became their bargaining representa-
tive, Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed in Section 7 of
the Act, thereby violating Section 8(a)(1) thereof.
2. All service department employees, new and used car
department employees, and parts department employees em-
ployed at Respondent's Wilkinsburg, Pennsylvania, facilities,
excluding salesmen, office clerical employees and guards,
BAUMAN CHEVROLET, INC
professional employees and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
3. At all times on and after January 19, 1968, the Union
has been and presently is the representative for the purposes of
collective bargaining of the employees in the unit described
above and, by virtue of Section 9(a) of the Act, has been and
now is the exclusive representative of all the employees in said
unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other terms and
conditions of employment.
4. By refusing on or about January 19, 1968, and at all
times thereafter, to bargain collectively with the Union in
respect to rates of pay, wages, hours and other conditions of
employment of the employees in the unit above-described,
Respondent violated Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease and
desist therefrom and that it take certain affirmative action
outlined below which I find to be necessary to remedy and to
remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law and
entire record and, pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Bauman Chevrolet, Inc., its officers, agents, representatives,
and assigns, shall-
6 In the event that the Recommended Order be adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order is enforced by a decree of the
United States Court of Appeals the words "a Decree of the United
479
1. Cease and desist from
(a) Coercively interrogating its employees concerning their
union membership or activities.
(b) Threatening its employees with a sale of its business or
other reprisal if the Union, or any other labor organization,
should remain or become their collective-bargaining representa-
tive.
(c) Refusing to recognize and bargain with International
Association of Machinists and Aerospace Workers, District No
63, AFL-CIO, as the exclusive representative of its employees
in the unit herein found appropriate.
(d) In any like or similar manner interfering with, re-
straining or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed and
necessary to effectuate the policies of the Act
(a) Upon request, bargain collectively with the above
named Union with respect to rates of pay, wages, hours of
employment and other terms and conditions of employment
of the employees in the appropriate unit described above and,
if an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its plants in Wilkinsburg, Pennsylvania, copies of
the attached notice marked "Appendix B" [omitted from
publication] 6 copies of such notice, on forms to be provided
by the Regional Director for the Region 6, after being duly
signed by an authorized representative of Respondent, shall be
posted immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places,
including all places notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said "notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Region 6, in
writing, within 20 days from the date of this Recommended
Order, what steps the Respondent has taken to comply
herewith.7
States Court of Appeals Enforcing an Order" shall be substituted for
the words "a Decision and Order."
7 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read : "Notify said Regional
Director , in writing , within 10 days from the date of this Order what
steps the Respondents have taken to comply herewith."