Bridgeway Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1986

281 N.L.R.B. 1246 (N.L.R.B. 1986)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bridgeway Oldsmobile , Inc. and Automobile Sales-
men's Union, Local 1095, United Food and
Commercial Workers , AFL-CIO. Case 32-CA-
7184
15 October 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 February 1986 Administrative Law Judge
Michael D . Stevenson issued the attached decision.
The Respondent and the Charging Party filed ex-
ceptions and supporting briefs and the General
Counsel filed a brief answering the Respondent's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We are also satisfied that the Respondent 's contention that the judge
was biased is without merit . In our opinion, there is nothing in the record
to suggest that his conduct at the hearing or his evidentiary rulings were
based on either bias or prejudice.
In sec . III,B ,6 of his decision , the judge inadvertently stated that the
Union made its demand for recognition on 22 March instead of 22 Febru-
ary 1985
2 The judge stated that the Respondent offered no credible explanation
for its new rule, announced just 2 weeks after the Union's demand for
recognition , prohibiting salesmen from gathering in groups The Re-
spondent attempted to explain that the new rule was imposed because
customers were being neglected . The judge found no evidence, other
than Walker's uncredited testimony , that customers were, in fact, being
neglected We note, however, that employee Roberts did testify that this
"situation could happen ," referring to the fact that customers may have
been neglected by salesmen talking to each other However , in light of
the other factors cited by the judge, i e, the timing of the new rule and
the Respondent 's unremitting opposition to the Union , we do not find
Robert's speculation sufficient to affect the judge 's conclusion that the
new rule unlawfully created an atmosphere that the employees ' union ac-
tivities were under surveillance by the Respondent Member Babson finds
that the General Counsel has not established a sufficient linkage between
the new rule and the employees ' union activities and would therefore re-
verse the judge 's findings of the three separate violations in the imposi-
tion of the rule
The judge found that because the reason proferred by the Respondent
for Roberts' discharge, i.e, insubordination , was wholly pretextual it was
unnecessary to provide the analysis set out in Wright Line, 251 NLRB
1083 (1980), enfd 662 F.2d 800 (lst Cir. 1981), cent denied 455 U S. 989
(1982), approved in NLRB v. Transportation Management Corp, 462 U S
393 (1983) However, as the Board stated in Limestone Apparel Corp, 255
NLRB 722 (1981), and again more recently in Jefferson Electric Co., 271
NLRB 1089 ( 1984), the Board requires an application of the Wright Line
analysis in all cases alleging 8(a)(3) and ( 1) violations that turn on em-
ployer motivation Notwithstanding the judge 's failure to apply Wright
Line, we need not rerationalize the judge 's finding that the Respondent
unlawfully discharged Roberts, because a finding of pretext "necessarily
means that the reasons advanced by the employer either did not exist or
conclusions2 and to adopt the recommended
Order3 as modified.
The judge recommended a bargaining order
based on his determination that the Respondent's
violations fell into "category two," i.e., "less ex-
traordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to
undermine majority strength and impede the elec-
tion process." See NLRB v. Gissel Packing Co., 395
U.S. 575, 614 (1969). We agree.
In determining whether a bargaining order is ap-
propriate , in addition to examining the severity of
the violations committed , the Board also examines
the present effects of the coercive unfair labor
practices which would prevent the holding of a
fair election.4
It cannot be seriously questioned that many of
the unfair labor practices committed here were ex-
tensive and serious. With the opening of its new
dealership, the Respondent was intent to keep the
Union out and to this end it was willing to utilize
whatever measures were necessary. During initial
hiring interviews of its sales force, the Respondent
made clear to all those suspected of harboring
union sympathies that a union was unnecessary and
unwanted . Employees holding current union mem-
bership were required, as a condition of employ-
ment, to renounce it by obtaining withdrawal
cards. As a condition of initial or continued em-
ployment, one employee was obligated to promise
he would not attempt to bring a union into the fa-
cility while another was told that even if a union
were established, the Respondent would never sign
a contract.
Despite these preventative steps, four of six
salesmen who constituted the original unit signed
authorization cards and the Union requested an
election after first seeking and being denied recog-
nition. The Respondent then accelerated and inten-
sified its unlawful conduct by interrogating em-
were not in fact relied on, thereby leaving intact the inference of wrong-
ful motive established by the General Counsel ." Limestone Apparel, supra
In agreeing with the judge that Allan unlawfully interrogated Harpe,
Member Johansen and Member Babson do not rely on the fact that em-
ployee Harpe gave an untruthful answer to General Sales Manager
Allan's question Chairman Dotson finds that Allan's interrogation of
Harpe violated Section 8(a)(l) of the Act for the reasons cited by the
Judge
8 The Respondent excepts to the judge's inclusion of a visitatonal
clause in his recommended Order authorizing the Board , for compliance
purposes , to obtain discovery from the Respondent under the Federal
Rules of Civil Procedure under the supervision of the United States court
of appeals enforcing his Order . Under the circumstances of this case, we
find it unnecessary to include such a clause Accordingly , we will modify
the judge's recommended Order by deleting reference to the clause.
' Quality Aluminum Products, 278 NLRB 338, 339 ( 1986) See NLRB v.
Davis, 642 F 2d 350, 354 (9th Cir 1981), in which the court stated that
Gissel instructed the Board to consider the extensiveness of the unfair
labor practices, their past effect on election conditions, the likelihood of
their recurrence , and the probability that a fair election can be held
281 NLRB No. 165
BRIDGEWAY OLDSMOBILE 1247
ployees as to whether they were contacted by the
Union or signed authorization cards . Others were
threatened that if the Union were certified , the Re-
spondent would either close down or fire all the
salesmen and hire new ones. Indeed, the Respond-
ent carried through with its' threats by discharging
Tom Roberts upon satisfying itself that it was he
who was the union organizer . The Respondent also
conveyed to employees the futility of 'selecting the
Union and created the impression that their union
activities were under surveillance . Finally, to
ensure success in the upcoming representation elec-
tion the Respondent packed the unit , by hiring
three additional salespersons whom it felt confident
would vote against the Union and retaining another
employee who wished to retire and who otherwise
would have terminated his employment before the
election so that the employee could vote against
the Union.
As the judge correctly noted , "the Respondent's
unlawful conduct struck at the very core of the
employees ' organizational efforts." Kona 60 Minute
Photo, 277 NLRB 867 (1985). Here, as in Kona, the
Respondent committed grave acts of misconduct,
including repeated threats of discharge . and store
closure, and with respect -to the perceived union
organizer, the Respondent unlawfully denied his
leave request and subsequently discharged him.
Such conduct has been considered so serious as to
justify a bargaining order 'even in the absence of
other unfair labor practices . Gissel, 395 U.S. at 587-
590, 615 . Further, the fact that these acts were exe-
cuted by the Respondent 's top management against
a small unit (six employees) compounds their gravi-
ty. The Respondent's conduct clearly tended to un-
dermine the Union 's majority strength5 and effec-
tively precluded a fair election.6
We fmd further that the Respondent 's acts also
tend to preclude a fair rerun election . The Re-
spondent 's violations-discharge, threats of dis-
charge and store closure , interrogations, and cre-
ation of surveillance-are of a nature that employ-
ees are unlikely to forget. The total effect of these
unfair labor practices necessarily serves as a long-
lasting and perhaps , permanent reminder to the cur-
rent work force that if they renew union activity
they too, will suffer the same consequences as their
predecessors . In this regard there is no evidence
that the Respondent has,, taken any subsequent re-
medial steps disavowing its unlawful , acts or that its
It is undisputed that by 22 February 1985 the Union had obtained
valid authorization cards from a majority of bargaining unit employees.
b An election was held on 10 April 1985 but the ballots were impound-
ed based on the instant unfair labor practice charges being filed I week
earlier.
antiunion policy has changed . See Quality Alumi-
num Products, supra.
We reject the Respondent's defenses , that em-
ployee turnover and the departure of its manage-
ment officials responsible for the violations now
makes the chances of ensuring a fair second elec-
tion "extremely good." As the judge noted, the su-
pervisory personnel who perpetrated the unlawful
acts did so pursuant to the "marching orders" of
the Respondent 's majority owner ' Art Bridges.
Bridges continues to be the Respondent 's majority
owner and there is no 'reason to believe that the
current management team is not armed with the
same orders . With respect to the Respondent's con-
tention that employee turnover makes a fair second
election possible , this argument also rings hollow
because the turnover in this case was, in part, "a
direct and obvious product of the Respondent's
own unlawful conduct ." Balsam Village Manage-
ment Co., 273 NLRB 420 (1984).
For the above reasons , we conclude that the pos-
sibility of erasing the effects of the Respondent's
unfair labor practices and of ensuring a fair rerun
election by use of traditional remedies is slight and
the employees ' representational interests which
they once expressed through authorization cards
would, on balance, be better protected by the issu-
ance of a bargaining order.
ORDER
The National Labor Relations Board adopts the
recommended order of the administrative law
judge as modified below [see also 290 NLRB No.
89], and orders that the Respondent Bridgeway
Oldsmobile, Inc., Hayward, California, its officers,
agents, successors, and assigns; shall take the action
set forth in the Order asmodified.
1. Delete paragraph 2(f) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the 'National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge, employees or deny their
leave requests because we know or suspect they
are engaging in union activities
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate our em-
ployees as to their own union membership , activi-
ties, or sympathies or the union membership, activi-
ties, or sympathies of their fellow employees.
WE WILL NOT threaten our employees with loss
of employment, closure of the dealership, unspeci-
fied reprisals or with the futility of organizing a
union because they engaged in union activities.
WE WILL NOT solicit our employees or appli-
cants for employment to withdraw from member-
ship in the Union.
WE WILL NOT make statements to employees
giving them the impression that their union activi-
ties are under surveillance.
WE WILL NOT tell an employee not to come in
unless he intended to vote against the Union.
WE WILL NOT employ salespersons for the pur-
pose of undermining support for the Union.
WE WILL NOT retain an employee who desired
to retire so that employee could vote against the
Union.
WE WILL NOT deny an employee's leave request
and subsequently terminate that employee because
he engaged in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Thomas Roberts whole for any
earnings he might have lost as a result of his un-
lawful discharge, with interest.
WE WILL offer Thomas Roberts immediate em-
ployment in his former position or, if that position
no longer exists , in a substantially equivalent one,
without prejudice to his seniority rights or any
other rights or privileges of employment, and make
him whole for any earnings he may have lost as a
result of our unlawful refusal to reemploy him,
with interest.
WE WILL remove from our files any reference to
the unlawful discharge of Thomas Roberts and
notify him, in writing, that such has been done and
that our unlawful actions will not be used as a basis
for future personnel action against him.
WE WILL, on request, recognize and bargain
with Automobile Salesmen's Union Local 1095,
United Food and Commercial Workers Union
AFL-CIO as the exclusive representative for pur-
poses of collective bargaining of our employees in
the following appropriate unit:
All full-time and regular part-time salespersons
employed by Bridgeway Oldsmobile at its
25715 Mission Blvd., Hayward, California fa-
cility; excluding all mechanics, parts, lubrica-
tion, lot employees, employees currently cov-
nancial and insurance employees, office cleri-
cal employees , guards, and supervisors as de-
fined in the Act.
WE WILL bargain with the above-named labor
organization with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment and, if an agreement is reached, embody such
in a written, executed contract.
BRIDGEWAY OLDSMOBILE, INC.
Diane Sidd-Champion, Esq., for the General Counsel.
Jay G. Putnam, of Santa Rosa, California, for the Re-
spondent.
William Sokol and David A. Rosenfeld, Esqs., of San
Francisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Oakland, California, on
2-6 December 1985,1 pursuant to a complaint isssud by
the Regional Director for the National Labor Relations
Board for Region 32 on 31 May, and which is based on a
charge filed by Automobile Salesmen 's Union, Local
1095, United Food and Commercial Workers, AFL-CIO
(Union) on 3 April. The complaint alleges that
Bridgeway Oldsmobile, Inc. (Respondent) has engaged in
certain violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act).
Issues
1. Whether Respondent violated Section 8(a)(1) of the
Act by committing one or more of the following acts for
the purpose of interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act:
(a) Impliedly threatening a prospective employee with
loss of employment if he failed to promise not to attempt
to bring a union into the dealership.
(b) Coercively interrogating employees and prospec-
tive employees about their own and other employee
union activities, union attitudes, or other concerted pro-
tected activities.
(c) Requiring employees and prospective employees to
withdraw from the Union as a condition of employment
or continued employment, or otherwise threatening un-
specified reprisals if they refused.
(d) Threatening employees with loss of employment if
the Union came in.
(e) Threatening employees with closure of the facility
if the Union came in, and in one case reminding an em-
ployee of his prior promise not to bring the Union in.
(f) Telling employees that it would be futile to choose
union representation.
ered by a collective bargaining agreement , fi- 1 All dates herein refer to 1985 unless otherwise indicated.
BRIDGEWAY OLDSMOBILE 1249
(g) Creating the impression of surveillance of employ-
ee union activities.
(h) Telling an employee shortly before a representation
election not to come in at all if he was coming in to vote
for the Union.
(i) Creating or newly enforcing a rule against employ-
ees standing around talking during slow periods in the
dealership.
(j) Hiring three new employees a few weeks before the
representation election thereby attempting to undermine
the status of the Union and to frustrate employees' de-
sires for union representation.
(k) Telling an employee who desired to retire that he
was being kept on the payroll to vote against the Union
in the approaching representation election.
2. Whether Respondent violated Section 8(a)(1) and
(3) of the Act by discriminating in regard to the hire,
tenure, terms, or conditions of employment of its em-
ployees, thereby discouraging membership in a labor or-
ganization , by denying a requested and previously grant-
ed leave to its then employee Tom Roberts, and by sub-
sequently discharging Tom Roberts.
3. Whether Respondent violated Section 8(a)(5) of the
Act by hiring the additional employees as described in
paragraph 1(j), above , by retaining an employee on the
payroll as described in paragraph 1(k), above , and by re-
fusing to recognize and bargain with the Union since
about 22 February.
4. Whether if one or more violations of the Act are
found, a bargaining order is warranted.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel and Respondent.2
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
which operates a business for the sale and service of new
automobiles with a showroom , offices, and lot located in
Hayward , California. It further admits that during the
past year, in the course and conduct of its business, its
gross revenues exceeded $500,000 and annually it pur-
chases and receives goods or services valued in excess of
$5000 from sources outside the State of California. Ac-
cordingly it admits, and I find, that it is an employer en-
gaged in commerce and in a business affecting commerce
2 Once again it is necessary to correct a poorly prepared transcript:
General Counsel 's seven-page motion to correct the record is granted.
Respondent's objections to the motion contained in a letter of 11 Febru-
ary 1986, with one exception , are denied . I note that as to the correction
and objection relating to p. 220 , L. 15, I cannot rule. My copy of the
transcript lacks a L. 15 at 220. The corrections are reported in App. II to
the decision. [App. II omitted from publication .] In addition, R. Exh. 4
admitted into evidence has been lost by the court reporter . A duplicate
copy will be included in the exhibits . R. Exh . 6 not admitted into evi-
dence has been included by the court reporter in the bound volume of
admitted exhibits . This should be corrected.
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits , and I find , that Automobile Sales-
men's Union , Local 1095 , United Food and Commercial
Workers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. General background
About 19 January, Respondent opened for business. Its
owners were Art Bridges and Freddy Walker. Bridges
owns 85 percent of Respondent , and at least one other
dealership , Art Bridges' Pontiac, located about a mile
from Respondent . Unlike Walker who was a lengthy wit-
ness and played a major role in this case , Bridges did not
testify and played a smaller, but nonetheless important,
role.
Owner of 15 percent of the business , Walker, had
worked for Bridges for over 20 years prior to January.
Walker began his employment as a car washer and de-
tailer, worked up to a successful sales career , and, with
the opening of Respondent , entered management . Gener-
ally, Walker's job was to oversee all operations of Re-
spondent including personnel . This required his presence
virtually 7 days a week for long hours every day. In ad-
dition to his supervisory duties over sales, appraisals,
service, finance and insurance , and personnel , Walker
would also from time to time assist salesmen "to close" a
deal with a reluctant or uncompromising buyer. When
this occurred , Walker allowed the originating salesperson
to collect the full commission on the transaction . If other
salesmen or managers assisted the originating salesperson
to close the deal, they would generally be entitled to a
portion of the commission.
By contrast to Walker, Bridges appeared at Respond-
ent for brief and irregular periods . As described by wit-
nesses, he was "in and out." Bridges exercised little, if
any, authority over the day-to-day operations of Re-
spondent.
One of the first persons hired by Walker was Bud
Allan, general sales manager . Hired about 2 January,
Allan left Respondent about 17 July. Allan is currently
involved in a legal dispute with Bridges over certain
moneys which Allan feels are due and owing to him. Ac-
cording to Allan, he is in litigation with Bridges over the
matter . Later testimony in the hearing clarified this
point . Allan is represented by counsel who is preparing a
legal complaint . Allan expects the pleadings to be filed in
a state court soon . Meanwhile, Allan is currently work-
ing as a general sales manager for a different car dealer,
located in Antioch, California , and has been there about
4 months.
Notwithstanding the apparent antagonism which now
exists between Bridges and Allan , the latter spent several
hours on the witness stand testifying regarding his state-
ments and acts while employed by Respondent. What
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allan may have said or done constitutes the heart of this
case. Both Walker and Allan were called first by the
General Counsel as adverse witnesses. Both men re-
turned later as witnesses for Respondent. I turn now to
discuss the important events involved in this case.
2. Allan's hiring interviews
One of the first persons hired by Allan was Vern
Pratt, the finance and insurance manager and Allan's
relief for those infrequent periods when he was not on
the premises. By the time of the hearing, Pratt was no
longer working for Respondent, and neither side called
him as a witness.
As Respondent prepared to open, many salesmen at
other dealerships, including Art Bridges' Pontiac, learned
that positions may be available there. Either because
they were not happy in their present jobs and/or because
they believed they could make more money at Respond-
ent, many experienced salesmen applied for jobs at Re-
spondent. The person to see for employment was Allan
who was well known in "East Bay" auto showrooms
due to his many years in the auto business . Although
Allan had once been a member of the Union, for the past
15 to 20 years he had worked as a general sales manager
for several different dealerships. Allan's prior employ-
ment included jobs at a Datsun dealer and two different
Oldsmobile dealers , all located in the "Oakland-East
Bay" area. Walker played only a nominal role in the
hiring of new employees.
One person who qualified for a job at Respondent was
Thomas Hallcock, an experienced car salesman and
member of the Union. Tipped by a friend that Respond-
ent was hiring, Hallcock filled out an application and
was interviewed by Allan in late February or early
March. In the interview, Allan explained to Hallcock the
commission, hours, and other working conditions at Re-
spondent. In general , these were similar to that in effect
at union dealerships, except that Respondent would not
provide its salespeople with a demonstrator automobile.
This was a major difference from union "stores" (this ex-
pression was used by all witnesses to mean auto dealer-
ships). In the course of the interview, Allan told Hall-
cock that Respondent was "non-union," and that Allan
was not going to have an agreement with the Union be-
cause Allan did not want Rich or Fred looking over his
shoulder. This was an apparent reference to Richard Sal-
varessa and Fred Silva, two officers of the Union. Both
of them testified in this case and will be referred to
below.
Allan concluded the interview by telling Hallcock that
if he desired to work there to let Allan know within 5
days. As matters turned out, the witness decided not to
accept a position at Respondent.
Another applicant for employment was Thomas Rob-
erts, the alleged discriminatee . About 25 January, Allan
interviewed Roberts, and gave him the same information
related for Hallcock above. In addition, Allan assured
Roberts that Allan intended to hire only five salespersons
so they could all make some money. Allan went on to
say that Respondent was not a union house and a union
was not necessary because Respondent' s benefits were
equivalent to that paid by union dealers. Because Roberts
had been recommended by Pratt as a good and clean-cut
salesman , and because Roberts apparently made a good
impression on Allan, Allan hired Roberts and asked him
to begin on 29 January. When Roberts asked for some
additional time to give longer notice to his present em-
ployer, Allan refused, saying Roberts must start on 29
January or never. Roberts agreed and reported for work
as directed.
Another experienced salesman hired by Allan was Gil-
bert Aguiar. A witness for the General Counsel, Aguiar
worked for Respondent between 14 February and 20
March. About 13 February, Allan interviewed him. Rec-
ommended for employment by Respondent's top sales-
man, Harold Blanton , Aguiar was given the same infor-
mation about working conditions as reported above.
Allan also told the witness that Respondent was non-
union and that a union was unnecessary because Re-
spondent paid the same , except for the demonstrator
cars. Because Allan was aware of the fact that Aguiar's
current employer was a union dealer, Allan told Aguiar
to go down to the Union and get a withdrawal card
which Allan would like to see. Allan also asked to see
proof of Aguiar's prior sales performance. Finally, Allan
told him that if he were hired he would be the sixth
salesman hired and that would be the last until sales
reached 150 to 200 cars per month. Allan went on to ex-
plain that by keeping the size of the crew down, all
could make some money. When Aguiar returned that
same day with proof of his prior sales performance,
Allan was suitably impressed. Saying that Aguiar was his
kind of people and promising higher earnings, Allan of-
fered Aguiar a job on condition that he begin work the
next day. Even though this meant no advance notice to
his current employer, Aguiar accepted and reported for
work on 14 February.
Still another salesman hired by Allan was witness
Joseph Harpe. Semiretired at age 66, with certain medi-
cal problems, I found Harpe to be a particularly credible
witness. Although not completely neutral in this contro-
versy, he was not wedded to either a union or manage-
ment point of view. He was at peace with himself and I
accepted his testimony as a benchmark by which other
witnesses were measured.
Harpe had worked with Allan at a prior dealership so
they knew each other well. About 15 January, Harpe
called Allan to ask about employment at Respondent.
Allan said that he would like to hire Harpe, but Re-
spondent was not going to be a union "store." Allan
added, "I don't want you to try to do anything to get
the union in here." Harpe responded that he was only in-
terested in making those earnings, about $7300, which
would not affect his social security, and that he was all
set with his union pension . When Allan persisted that
Harpe had to promise that he would not try to get a
union in , Harpe replied that Allan did not have to worry
about him.
This telephone conversation was followed by a meet-
ing later on the same day. While Allan showed Harpe
around the facilities, both men reiterated the essence of
their telephone conversation. Allan then told Harpe to
BRIDGEWAY OLDSMOBILE
pick out his office and come to work the next day.
Harpe worked until 28 March when he retired.
By late February , Allan had hired not only salesmen
Roberts, Aguiar, and Harpe , but in addition , other sales-
men, Harold Blanton , Harold Walker, nephew of Freddy
Walker, and Randy Hover . The last three did not testify
and they played marginal roles in this case . Prior to the
representation election on 10 April , three more salesper-
sons were hired , Craig Decker, George Simpson, and
Sue DePolo . Simpson testified for the General Counsel
and Respondent, and the other two testified for Re-
spondent . Because these three were treated differently at
hiring than the witnesses referred to above, I will recite
their testimony separately below.
3. On the job prior to Union 's demand for
recognition
In the beginning all went well. Respondent sold 56
cars in February , and 80 cars in March . The salesmen
felt adequately compensated until additional salespeople
were hired in March . Notwithstanding their hiring inter-
views, some decided to begin a union organizing drive.
This effort was begun by Aguiar who, on 13 February,
went to the union hall , not to get a union withdrawal
card as directed by Allan, but rather to pay 2 months'
dues in advance and to sign a union authorization card
(G.C. Exh. 17). Aguiar asked for some additional cards
in case anyone else desired to sign.
Meanwhile, Roberts had also reported for work. On
arrival , Roberts was asked by Allan for a Department of
Motor Vehicle driving record and for a union withdraw-
al card . A few days later Allan asked for the withdrawal
card again . On 14 February, in the presence of Aguiar,
Allan asked Roberts for the card for still a third time.
Roberts said he did not receive the card yet . To this
Allan responded that if Roberts intended to remain there,
he would need to get the card and show it to Allan.
Roberts then told Allan he would definitely get the card
because if the Union came in within 3 to 6 months, then
Roberts would not have to pay his dues over again. In
his testimony , Aguiar corroborated the second part of
the conversation wherein Roberts told Allan why he
thought it was a good idea to obtain the withdrawal
card . Aguiar was alarmed at the naivete of Roberts and
called the Union to report the conversation . Aguiar
asked Salvaressa to call Roberts and tell him not to make
those kinds of statements to management lest he put his
job in jeopardy . About a week later , on 20 February, in
Respondent's lot, Roberts signed a union authorization
card (G.C. Exh. 13) given to him by Aguiar . Aguiar re-
turned this signed card to the Union . On the same day,
Harpe signed his card in the union office at the request
of Silva (G.C. Exh. 18). A fourth card had been signed
by Blanton in the Union's office in early February (G.C.
Exh. 14).
4. On the job after Union's demand for recognition
After receiving a majority of the signed cards from
Respondent's salesmen , Union Secretary-Treasurer Rich-
ard Salvaressa prepared a letter dated 21 February and
addressed to Walker. Among other matters, the letter
1251
stated that the Union represented a majority of Respond-
ent's sales force, requested recognition of the Union from
Respondent , and offered to prove its majority status
through a neutral third party (G.C. Exh. 15). Salvaressa
and Silva delivered the letter to Respondent about 22
February. Not finding Walker on the premises, the two
men went to Allan's office where they had a conversa-
tion with him. After reading the letter, Allan said he was
the wrong person to receive it. Allan added that Walker
was out of town and Bridges was not present , but Allan
promised to give the letter to Bridges . Then Allan stated
that Bridges would never permit a union at Respondent.
Following this meeting a change occurred at Respond-
ent. Witnesses , including Allan, agreed that a tension de-
veloped manifested by a lack of socializing between the
sales force and Walker and Allan. There was no more
levity or informality in the showroom ; rather Allan in
particular was all business . Several specific examples
were given to illustrate this change after 22 February.
On 23 February, Allan again asked Roberts for his
union withdrawal card and when the latter stated he still
had not received it, Allan answered, "You're excused!"
On 26 February, Roberts was asked by Pratt, the man
who had recommended him for employment, "Are you
the Union pro?" When Roberts asked what Pratt was
talking about, Pratt explained that someone in the dealer-
ship was union pro . Then Pratt asked directly, "Tom, are
you the one stirring up union shit?" Roberts answered,
"No." Then Pratt asked if Roberts knew who the union
pro was . Again, Roberts answered, "No." Pratt conclud-
ed by warning, "We are going to find out who it is."
Roberts cited other incidents occurring in late February:
for example, he had difficulty in receiving a $2 reim-
bursement for gas he put in a demonstrator . Also during
the same period, Roberts took a salesman test and scored
100 percent. When he informed Walker, Roberts re-
ceived only a negative and hostile reaction . On 3 March,
Bridges addressed the sales force at a routine Saturday
morning sales meeting and berated the assembly over al-
leged salesmen complaints regarding lack of demonstra-
tors and alleged poor performance of some salesmen.
Then Walker concluded the meeting by noting that he
did not desire salespersons to gather in groups on the
showroom floor during slow periods and talk among
themselves . Walker added that he had observed that
some customers had been neglected due to the salesmen's
distractions . A few weeks later, Roberts attempted to sell
a car to his stepfather on terms advantageous to the cus-
tomer and Respondent . Allan refused to approve the deal
and Roberts' stepfather purchased a car elsewhere.
Roberts also related his attempt to get time off to pick
up his brother at the airport. The request was made
about 2 weeks before 4 March, the day in question, a
Monday, and usually a slow sales day. Allan had told
Roberts "O.K.," but that Roberts should attempt to get
someone to cover for him. Roberts asked Harpe who
agreed to do this, subject to Allan's approval . It is un-
clear when Roberts asked Harpe to cover his shift. It is
clear that Allan did not approve, telling Harpe that
Allan did not desire him to work on his day off. In fact,
Harpe was on medication for a heart condition but was
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise healthy. Allan approved Harpe switching
shifts with Blanton a few weeks later . On 2 March, Rob-
erts reminded Allan that he would not be present on 4
March. Allan told Roberts that he could not have time
time off, and asked, "What's more important, your broth-
er or your job?" Roberts testified that Allan had permit-
ted Hover to be off on a Saturday, the busiest sales day
of the week to attend a wedding. Simpson testified to
other examples where Allan had granted time off. For
example, Decker was given 2 weeks off to go to Hawaii;
other salespersons were permitted to switch shifts with-
out difficulty.
Roberts was not the only salesperson to describe the
change in atmosphere after 22 February. Aguiar gave
similar testimony together with his own examples of spe-
cific encounters with Allan. For example, about 24 Feb-
ruary, Aguiar talked to Allan on Respondent's premises.
Allan asked if Aguiar knew who signed the pledge cards.
Then added, "I'm not supposed to be talking to you re-
garding the union, and if it comes out, I'll deny it."
Aguiar denied knowledge of any card signers. Allan
added that he thought Roberts was the troublemaker, but
that at least two had to sign cards. Allan went on to
complain that he was getting heat from Art Bridges.
When Aguiar asked Allan why Bridges would blame
him, Allan answered, because Bridges had told Allan not
to hire anyone from Oakland (apparently this was a ref-
erence to an area with a high incidence of unionized car
dealers). Allan concluded by asking Aguiar whether he
had obtained his union authorization card yet. Aguiar re-
sponded that he had decided to allow his dues to go de-
linquent rather than to request the union withdrawal
card. On 11 March, Allan again asked for Aguiar's with-
drawal card . It is unclear why the request was made as
Aguiar had previously said he would not obtain it. This
time Aguiar answered that he had the card and offered
to show it to Allan, who declined the offer. In fact,
Aguiar did not have the card.
Harpe also reported conversations with Allan. Once in
February, exact date not indicated, Harpe asked Allan
what would happen if the Union came in . Allan an-
swered, "We'll fire all the salesmen and hire new ones."
On 23 February, Allan asked Harpe if Silva had ever
contacted him. Harpe said, "No." Allan went on to say
that Silva had contacted some of the other salespeople.
Allan added that Bridges will not stand for the Union
coming in here ; he'll close the place down first and I'll
get fired. When Harpe asked why Allan would get fired,
Allan answered, "because I'm the man who hired the
fellow who's trying to bring the Union in here." Then
Allan finished the conversation by saying to Harpe, "I
knew you wouldn't do anything to try to help get the
Union in here, because you promised not to." Harpe an-
swered, "You don't have to worry about me, because
I'm all set."
After the Union had demanded recognition, Harpe had
two to three experiences of having to relinquish a cus-
tomer to Blanton per Allan's order. When Harpe asked
for an explanation after the first instance, Allan apolo-
gized and expressed regret . Although Blanton had signed
a union authorization card, he told Harpe at one point
that the Union had never done anything for him.
5. The hiring of Simpson , Decker, and DePolo
George Simpson , Craig Decker, and Sue DePolo were
all hired about 5 March . They all testified for Respond-
ent and I turn to consider them individually.
a. George Simpson
Simpson worked at Respondent until 22 May, when he
left to accept a different auto sales job. That job lasted
only a few days when he quit to work as a finance and
insurance manager for another dealership. This job lasted
a few months when he quit to take another job, where
he has now been working for a few weeks.
Before coming to Respondent, Simpson had been a fi-
nance and insurance manager at a Datsun dealership for
about a year. While working there, he got to know
Allan, his sales manager. Simpson quit his job at the
Datsun dealer to work for Allan at Respondent, as he
had just purchased a new home. According to Simpson,
he needed the greater flexibility of a salesman's job so
that he could work on his house, whereas he would have
been unable to spend as much time on it, had he re-
mained in his manager's job. Two doors down from
Simpson, lives Respondent's part-owner Freddy Walker.
Because Allan had left the Datsun dealer after having
a dispute with management , Simpson decided to tell
people he was leaving Datsun to be the used-car manag-
er at Respondent. That way it would not appear to
Datsun management that he was taking sides with Allan.
Rather, it would appear that he was seeking to better
himself. In fact, it had never been intended by anyone
that he would work as Respondent 's used-car manager.
When Simpson was hired by Allan after he closed
escrow on his home, Allan permitted him to give 10-day
notice to Datsun.
b. Craig Decker
Decker originally was hired by Respondent in early
January to work in the parts department. He worked
there about 4 weeks and was fired for lack of competen-
cy. During February, Decker was unemployed but col-
lected about $162/week unemployment compensation.
Then he applied to and was hired by Allan to be a sales-
man at Respondent. Decker worked at Respondent for
approximately the next 6 months, sold between 37 and 42
cars and made approximately $18,000. About mid-Sep-
tember, Decker went to work for Bridges Management
Company as Art Bridges' personal chauffeur. His salary
there is about the same as he was making at Respondent,
except it is guaranteed without the pressure of having to
meet monthly sales quotas.
c. Sue DePolo
DePolo worked at Respondent until 4 July when she
was "kind of fired." Allan had hired her, and fired her
because her sales performance and attendance at work
had not been good. On leaving Respondent, she worked
at Lucky's Foods as a nonfood clerk for about 5 months.
Recently, DePolo obtained new employment as a secre-
tary for Bridges Management Company.
BRIDGEWAY OLDSMOBILE
DePolo's present position is her third job for Art
Bridges; before Respondent , she had worked as a sales-
person for Bridges Pontiac, between November 1983 and
March. DePolo changed from the Pontiac to Oldsmobile
store because the latter was closer to her home and had
schedules more convenient for her to see her daughter
who lived apart from her.
The three witnesses discussed above were not asked
any questions by Allan having to do with unions or
union withdrawal cards . All voted in the union represen-
tation election on 10 April.
6. Roberts' termination-9 March
Saturday , 9 March , was normally a busy sales day for
Respondent . Roberts sold one of three cars sold on that
day. Roberts' deal involved a trade-in. Allan had ap-
praised the car for a certain amount and Roberts thought
it was worth more. In any event the customer was satis-
fied with Allan's appraisal , and the deal was made. Then
Roberts asked Allan for permission to "shop the trade."
This expression means that the salesman will attempt to
sell the trade-in to a used-car dealer for more than Allan
said it was worth. If successful , both the salesman's com-
mission and the dealer 's profit would increase.
Up to this point , both sides somewhat agree . Thereaf-
ter they agree on virtually nothing . According to Rob-
erts, Allan told him it was alright to shop the trade, cau-
tioned only that if he did one, he would have to do them
all in the future . A short time later, Roberts asked per-
mission for a used-car dealer to come on the premises to
appraise the car . At this point, Allan said , "Buddy you
are more trouble than you are worth. Pack your bags
and get out!" Roberts then asked Allan to go outside
where their discussion would not distract the sales activi-
ty. When Allan did go outside , he used his index finger
for emphasis and again told Roberts to pack his bags and
get out . Roberts denied threats, gestures , or profanity.
A few minutes later, Roberts told Walker what had
happened . Walker responded , Allan is the manager and I
pay him to do the hiring and firing . A few minutes later
Roberts had a second conversation with Walker in the
latter's office. After Roberts repeated his version of
events, Walker again said he could do nothing. On 11
March, Roberts called Walker at his office while Sal-
varessa listened on an extension phone, without the
knowledge of Walker. Roberts asked Walker if he was to
be reinstated . Walker said a replacement had been found.
Salvaressa corroborated this aspect of Roberts' testimo-
ny. From his listening post on the extension line, he
heard Walker say that Roberts had been replaced and
would not be reinstated . Roberts then wrote a letter to
Walker misdated as 10 March . It reads as follows (G.C.
Exh. 8):
Mr. Fred Walker
Bridgeway Olds
Dear Mr . Walker
On Saturday March 9 , 1985 Mr . Bud Allen [sic]
fired me . I have been told if I apologize I may! be
rehired.
1253
I feel I don't owe anyone any apology , since all I
did was follow instructions . At no time have I quite
[sic] my job. Therefore I refuse to apologize to Mr.
Bud Allen [sic], and I feel I should immediately be
reinstated to my former sales position.
Sincerely
/s/ Tom Roberts
Tom Roberts
Walker wrote an answer to Roberts on 15 March. It
reads as follows (G.C. Exh. 9.):
Mr. Thomas Roberts
4035 Loch Lane
San Leandro , Ca. 94578
Dear Tom:
Your letter dated March 9, 1985 was received
this morning.
Your contention that your continued employment
at this dealership was conditioned upon an apology
is grossly incorrect.
On the contrary, Mr. Allan terminated your em-
ployment because of your non-compliance to estab-
lished policy. Promptly after learning of the inci-
dent, I told you that I was reversing Mr. Allan's de-
cision, that you had a job and not to worry about it,
but rather go out and sell cars because we needed
the coverage.
In response to your remark that you did not feel
like selling cars, I cautioned you that in the event
you chose to leave , that we would deem your leav-
ing to be a resignation . Not withstanding my
advice, you shortly thereafter left of your own voli-
tion.
We have made a commitment for a replacement
and do not have a vacancy at this time.
You will continue to be considered for future em-
ployment for a reasonable period of time, should a
vacancy arise. Until then, your employment record
with us shows that you resigned on March 9, 1985.
Very truly yours,
/s/ Fred Walker
Fred Walker
Vice President
Supporting Roberts' account of this episode is Aguiar.
In particular, he heard Walker tell Roberts he could do
nothing about the matter . This matter caused Aguiar to
resign from Respondent on 20 March . Both Allan and
Walker attempted to persuade Aguiar not to quit, but his
mind was made up . When Allan asked if the Union had
anything to do with Aguiar's decision, Aguiar admitted
that he felt responsible for Roberts ' firing and that it
would be just a matter of time before he too was fired.
In fact, said Aguiar, he had signed a union authorization
card. Allan said he did not care about that because he
had known all along about it. Allan continued , Aguiar
was simply too good a salesman to leave . Allan also in-
quired who else had signed a card . Although at one
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point Aguiar indicated he would change his mind and
stay , ultimately he did quit.
The version of events provided by Allan and Walker
is supported to a degree by Simpson , who was called by
Respondent for this portion of his testimony . Here is
what they say. Allan stated he fired Roberts for insubor-
dination . This is based on Roberts ' refusal to abandon his
efforts to "shop the trade," Roberts ' threats to beat up
Allan, and Roberts ' swearing during the incident.
Allan testified that he refused Roberts' request to shop
the trade as it would have involved leaving the dealer-
ship to show the car to various used -car dealers and
Allan wanted Roberts to remain on the premises to sell
cars on what was expected to be the usual busy Satur-
day. At this point Roberts became angry and in a loud
voice said to Allan , "let's settle this outside." When
Allan did go outside to repeat that Roberts was fired,
Roberts threatened to beat him up, by saying that he
would "kick his ass." After this incident, Allan told
Walker what had happened.
According to Walker, he decided to overrule Allan
because he did not consider the matter very serious.
Walker held this view , allegedly, even though Allan or
another salesman told him that Roberts had called Allan,
an "asshole" and used the word "shit." Walker told Rob-
erts he was not fired , but to resume his duties as a sales-
man. At this point , Roberts claimed to be ill and left the
dealership . Although Walker did tell Roberts in the tele-
phone call on 11 March , that he was interviewing a pos-
sible replacement , he still told Roberts to call him the
next day to discuss the possibility of reinstatement. Rob-
erts never called.
Both Allan and Walker purportedly wrote memoranda
at the end of 9 March to preserve events while their
memories were fresh . In the case of Allan, he also wrote
his, because Roberts told him as he left the dealership
that Allan had not heard the end of the matter . Allan's
memo reads as follows (R. Exh. 4):
On Saturday March 9, 1985 Tom Roberts sold a
car (stic #205) to Mrs. Mary Ann Williams. The
gross profit in this deal was $1700 . Tom inquired
about the acv of the trade-in. I told him that the
acv was $400 . He said that he wanted to shop the
trade . I told him that we did not need to shop the
trade . George Simpson was present in the sales
office during this conversation.
About 1/2 hour later , Tom Roberts approached
me in the hall by the finance office about shopping
the trade on the Williams deal . I told him that he
should spend his time trying to sell cars instead of
shopping trades . When he persisted , I told him that
if he did not like the way we did things here that he
should go to work elsewhere. At this point he blew
up and told me to step outside so that we could
settle the matter once and for all . Tom then went
outside to the south patio and yelled at me to step
outside . I ignored him. He continued to yell loudly.
I finally went outside and he threatened me. I fired
him.
/s/ Bud Allan
When Allan gave an affidavit to an NLRB agent, he
never mentioned the alleged existence of Respondent's
Exhibit 4. Much of what Allan testified happened be-
tween himself and Roberts is not included in the memo-
randum, allegedly written on the day of the incident.
Walker's memorandum also purportedly written at the
end of 9 March reads as follows (R. Exh. 5):
To whom concerned.
Approx. 3:30 pm I was confronted by Tom that
he was fired. At the time I was busy with customers
from Centinnal Bank. Soon as I got free I called
Tom in my office to find out the reason for dismis-
sal. He told me he wanted to shop the trade with-
out the consent from manager which we don't do
until told or asked. He shouted at Bud and invited
him out the door which Bud declined.
I told him I thought the whole situation was very
minute and I was going to overrule Bud. He had his
job back and to forget about it and go sale [sic]
cars. He stated he was not going to for he had a
headache. I said to him walk around for a few min-
utes he would be alright. As he refused again I told
him he had his job back and not to leave for I
needed coverage on the lot and if he leaves so far
as I am concerned he was quitting. So he left
anyway. So I did do everything to get him to stay.
So after a lengthy conversation I was pretty con-
vinced he wanted to leave regardless.
To the best of my knowledge this is true and cor-
rect.
Truly,
/s/ Fred Walker
Like Allan, Walker never mentioned to the NLRB
Board agent who interviewed him that Respondent's Ex-
hibit 5 existed.
According to Simpson, he heard a portion of the argu-
ment between Allan and Roberts. He heard Roberts say
two times to Allan, "this is a bunch of shit." He also
heard Roberts say two times to Allan in a loud angry
voice, "Why don't we just step outside." Finally, Simp-
son testified that while the two men were outside, he ob-
served Roberts make an obscene gesture to Allan. None
of these details at variance with both Allan's and Walk-
er's testimony were contained in the witness' affidavit or
in a several page declaration attached to the affidavit.
In evaluating the credibility issues presented by Rob-
erts' termination, I credit the General Counsel's wit-
nesses . I do not believe that Roberts swore or threatened
Allan. I flatly reject Walker's preposterous testimony
that he overruled his general sales manager and reinstat-
ed a subordinate who had just called the sales manager
an "asshole ." I further credit Roberts' account of the 11
March telephone call as reinforced by the testimony of
Salvaressa. Walker's statement over the phone that Rob-
erts had been replaced was false as another salesman was
not hired until approximately 3 weeks later.
In evaluating Allan's credibility I have fully consid-
ered that not only does Allan not work for Bridges now,
but that Allan has a legal dispute with Bridges. These
BRIDGEWAY OLDSMOBILE
facts suggest a lack of motive to fabricate. Yet Allan had
been locked into a position by the Board's affidavit and
could not change his position merely because Allan was
now employed elsewhere and was feuding with Bridges.
Further, Allan's conduct was in direct issue in this case.
In that respect, much of what Allan had to say about the
car business made sense to me, but his account of how
Roberts came to be fired does not. I will return to that
subject in the Analysis and Conclusions section below.
As to Walker, I attempted to evaluate his credibility
by giving him the benefit of every doubt. Walker struck
me as a man of little formal education, but one who had
achieved his present position through long hours and
hard work. Nevertheless, I found him to be an evasive
and contradictory witness and simply unable to justify
his contention that he overruled Allan under the circum-
stances allegedly present here. In sum I did not believe
Respondent's primary witnesses.3
B. Analysis and Conclusions4
1. The alleged unlawful interrogations
The General Counsel has alleged several instances of
alleged unlawful interrogation. Before reviewing these
allegations separately, it will be helpful to review some
general principles of Board law on this subject. I begin
with the recent case of Sunnyvale Medical, 277 NLRB
1217 (1985), in which the Board provided guidance on
application of Rossmore House, 269 NLRB 1176 (1984),
affd. 760 F.2d 1006 (9th Cir. 1985), the leading case on
issues of unlawful interrogation.5 In Sunnyvale, the Board
affirmed the dismissal of the allegation even though the
employee interrogated was not an open and active union
supporter. The Board also reiterated the test for evaluat-
ing whether employee interrogations by supervisors vio-
late the Act at 1217: "whether under all the circum-
stances, the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act."
More specifically, the Board instructs me to examine all
relevant factors of each alleged instance of interrogation
including at 1218 "the background, the nature of the in-
formation sought, the identity of the questioner, and the
place and method of interrogation." As I turn to review
the individual allegations, I note that the interrogations
in this were conducted by Allan and in one case by
Pratt, the highest level of management, without any ap-
parent valid purpose, and in many instances, Allan or
Pratt attempted to learn not only the protected activities
of the listener, but also the activities of other employees
who might be involved. Finally, there was never any as-
surances of no reprisals. 6 I will find all these interroga-
a In deciding the above and other credibility issues presented by this
case, I have been guided by the Board 's instruction expressed in El
Rancho Market, 235 NLRB 468, 470 (1978), enfd. 603 F.2d 223 (9th Cir.
1979): "The ultimate choice between conflicting testimony rests not only
on the demeanor of the witnesses, but also on the weight of the evidence,
established or admitted facts , inherent probabilities, and reasonable infer-
ences drawn from the record as a whole "
4 The supervisory status of Walker, Allan, and Pratt has been admitted
in Respondent's answer , G.C Exh 1 (e), par. II
5 See also Lassen Community Hospital, 278 NLRB 370 (1986).
6 Asoc:acion Hospital del Maestro, 272 NLRB 853 (1984); City-Wide Am-
bulette, 272 NLRB 882 (1984)
1255
tions to be coercive and to constitute violations of Sec-
tion 8(a)(1) because they fulfill all the criteria the Board
found lacking in Rossmore.
a. Interrogation of Roberts about his union
membership
As noted above, Roberts reported on board on 29 Jan-
uary, after he had quit his prior job with very little
notice. Allan had told Roberts at the interview a few
days before, that a union was not necesary because Re-
spondent's benefits were equivalent to those in a union
store. On 29 January, Allan made the first of several re-
quests for Roberts' union withdrawal card. These re-
quests clearly conveyed to Roberts that his initial hire
and continued employment required him to reject the
Union.
On 14 February, Allan made explicit that which had
only been implied-although clearly implied. On being
told by Roberts that he still had not received his with-
drawal card, Allan told Roberts that if Roberts intended
to remain there, he had to obtain the card and show it to
Allan. Thus, Respondent, through its supervisor and
manager, coerced an applicant for employment and inter-
rogated him as to his union sympathies in violation of
Section 8(a)(1) of the Act.7
I should note that Allan testified that he may have in-
quired about Roberts' withdrawal card on one or two
occasions. Allan continued that when he did so, such
questions were noncoercive and undertaken only to save
Roberts and others from having to pay unnecessary
union dues. I reject this testimony and do not believe it.
b. Another interrogation of Roberts by Allan
demanding to see his union withdrawal card
On 23 February, Allan again asked Roberts for his
union withdrawal card. For the reasons stated above, I
find this request also violated Section 8(a)(1) of the Act.
c. Interrogation of Harpe about his union activities
On 23 February , Allan asked Harpe if he had ever
been contacted by Silva . Harpe gave an untrue answer,
when he responded in the negative . This reply is a factor
in evaluating the otherwise clearly coercive nature of the
interrogation.8
d. Interrogation of Aguiar about his union membership
On 24 February, Allan asked Aguiar whether he had
obtained his union withdrawal card . Like Harpe , Aguiar
gave an untrue answer saying that he had . The coercive
nature of this interrogation is also revealed by placing
the entire conversation in context . Allan had just asked
Aguiar if he knew who had signed the Union 's authori-
zation cards.9 Allan also stated that he thought Roberts
7 Jones Plumbing Co., 277 NLRB 437, 439 ( 1985); Dee Cee Flooring,
232 NLRB 421 (1977).
s See NLRB v. Great Western Coca Cola Bottling Co., 740 F 2d 398 (5th
Cir. 1984)
9 Allan's request that Agwar identify union supporters tends to cause
employees to fear that such information is sought by the Employer in
Continued
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the troublemaker . I again find that Allan violated
Section 8 (a)(1) of the Act as alleged.
e. Interrogation of Aguiar about union activities
On 20 March , Aguiar indicated to Allan that he de-
sired to resign from Respondent because he felt responsi-
ble over the termination of Roberts . In the course of
their discussions, Allan asked Aguiar who else had
signed a union authorization card , beside Aguiar himself.
I find this interrogation violates Section 8(a)(1) of the
Act in that Respondent had no valid purpose to learn
these names , except to coerce employees.
f. Interrogation of Roberts by Pratt about union
activities
As noted above , Pratt never testified and therefore
never denied Roberts' credible testimony . I find that
Pratt 's attempt to find out whether Roberts was the
"union pro" who was stirring up the union matters vio-
lated Section 8(a)(1) of the Act. The coercive nature of
the question is readily apparent.
2. The alleged unlawful threats
a. Threat to Harpe to secure a promise of no union
activity
I find that Allan's implied threats to Harpe to deny
Harpe initial or continued employment if Harpe did not
promise not to attempt to bring a union into the facility
clearly violated the Act.1 o
b. Threat of unspecified retaliation if Roberts did not
obtain his union withdrawal card
On 5 February , Allan made his second request for
Roberts' union withdrawal card . When Roberts asked
about why it was necessary to obtain this , Allan said that
the reasons did not concern him, Roberts should just get
the card . An implied threat of an unspecified reprisal-
such as occurred here-in the face of protected concert-
ed activities violates Section 8(a)(1) and I so find.I i
c. Threat to discharge all salesmen and hire new ones
if the Union came in
Sometime in February , Allan replied to Harpe's in-
quiry about what would happen if the Union came in, by
stating that Respondent would fire all the salesmen and
hire new ones . Although the statement was made only to
Harpe, this was a clear message to all employees, that
support for the Union and continued employment are not
compatible.12
d. Threat to deny initial or continued employment
unless the employee withdrew from the Union
On 13 February , Allan interviewed Aguiar for a posi-
tion and stated that Respondent was nonunion. Allan
also told him to obtain a union withdrawal card which
Allan desired to see.
The next day Allan made another request of Roberts
for him to obtain his union withdrawal card . This time
Allan did not mince words . He told Roberts that if he
desired to continue working there , Roberts would have
to obtain the card . I find that in both instances Respond-
ent violated Section 8 (a)(1) of the Act by its threats of
loss of employment.
3. The alleged statement indicating futility of union
organizing
a. Allan 's statements to Harpe
About 23 February , Allan told Harpe that Bridges
would never stand for the Union coming in , but would
rather close the place down and all including Allan
would lose their jobs . 13 As part of the same conversa-
tion , Allan also stated that he knew that Harpe would
not help to bring the Union in because he had promised
not to. These conversations violated Section 8(a)(1) of
the Act since Allan was clearly intending to convey to
Harpe , the futility of selecting a Union to represent em-
ployees, in light of Bridges ' opposition.14
b. Allan's job interview statements to Hallcock
About 1 March , Hallcock was interviewed for em-
ployment by Allan. As matters turned out, the witness
never went to work for Allen , although apparently he
could have . I found this witness like Harpe , particularly
credible , because of the absence of any motive to fabri-
cate and because his testimony is consistent with that of
other witnesses . In the course of the interview, Allan
stated he would not sign any contract with the Union be-
cause he did not want Rich or Fred looking over his
shoulder . For the reasons expressed immediately above, I
find that Allan's expression of futility of support for the
Union violates Section 8(a)(1) of the Act.is
4. The alleged statements giving employees the
impression they were under surveillance
On at least four occasions , Respondent violated Sec-
tion 8(a)(1) of the Act by giving employees the impres-
sion that their union activities were under surveillance.16
For example , on 23 or 24 February , Allan told Aguiar
that Allan thought Roberts was the troublemaker, i.e.,
the one responsible for distributing the union authoriza-
order that it might discourage those activities by discharging or engaging
in other reprisals against the employees supporting the Union E I
duPont & Co, 257 NLRB 139, 141 (1981), Custom Trim Products, 255
NLRB 787, 798 (1981)
10 Horizon Air Services, 272 NLRB 243 (1984)
11 Bill Johnson 's Restaurant, 249 NLRB 155 ( 1980), enfd 660 F 2d 1335
(9th Cir 1981)
12 L. A Baker Electric, 265 NLRB 1579, 1580 (1983)
13 See Holiday Inn-Glendale , 277 NLRB 1254, 1261 (1985)
14 Jones Plumbing Co, supra, 277 NLRB at 437, NLRB v Henricksen,
Inc, 481 F 2d 1156, at 1161-1162 (5th Cit. 1973) In addition, the serious
nature of the threat cannot be ignored See S.M.C. Restaurant Corp, 261
NLRB 313 (1982)
15 Granite City Journal, 262 NLRB 1153, 1155 (1982)
16 See Pete O'Dell & Sons Steel, 277 NLRB 1358 (1985), Frito Lay, Inc,
232 NLRB 793 (1977), enfd 585 F 2d 62 (3d Cir. 1978)
BRIDGEWAY OLDSMOBILE 1257
tion cards.17 On 11 March, Allan repeated the statement
to Aguiar. This was 2 days after Roberts had been fired.
About 20 March, as Aguiar indicated to Allan his
desire to resign , Allan attempted to dissuade Aguiar from
leaving by stating that Allan had known all along that
Aguiar and Roberts had signed cards. Whether Allan
was being truthful or merely telling Aguiar something
Allan thought Aguiar wanted to hear is not important.
The statement clearly violates the Act. t 9
Finally, about 2 March, Walker told employees at a
sales meeting that he no longer wanted them to stand
around talking on the sales floor. Although this violation
is much less clear to me than others discussed, I evaluate
it in the context of this case including Respondent's unre-
mitting opposition to the Union, and Respondent's failure
to offer a credible explanation for this new rule some 2
weeks after the Union's demand for recognition. The
timing suggests to employees that Walker knew or sus-
pected that some of their conversations concerned, i.e.,
the Union. I find a violation of the Act here as in the
other instances discussed.19
Walker's admonition to employees may be appropriate-
ly considered from other points of view. That is, I find
that Walker was attempting to inhibit employee opportu-
nity for discussion of the Union.2 ° Also, I find that
Walker was attempting to retaliate against employees as
punishment for their union activities. There is no evi-
dence, other than Walker's testimony which I do not
credit, that any customers were neglected due to em-
ployee distraction; I conclude therefore that Walker's
order in the context of this case violates Section 8(a)(1)
of the Act on the basis of three separate theories.
5. Allan's alleged attempt to influence Harpe's vote
On 5 April, Harpe went to Respondent's premises to
pick up his final check. Allan told him that if he was
going to vote for the Union not to bother. Allan had
made a similar statement on the telephone, a few days
before, when Harpe had called to tell Allan of his desire
to retire. I find that these statements violate the Act in
that they coerce Harpe in the exercise of his protected
right to cast a free and voluntary ballot.
6. The alleged employment of Simpson, Decker,
and DePolo for the purpose of undermining support
for the Union
The General Counsel contends that the hiring of Simp-
son, Decker, and DePolo was done for the purpose of
undermining support for the Union and affecting the re-
sults of the election. To properly decide the issue, I must
review relevant facts.
11 The Board has noted that the word "troublemaker" is frequently
used to describe union organizers . D.R.C., 233 NLRB 1409, 1415 (1977).
18 See Sierra Hospital Foundation , 274 NLRB 427 (1985); Roskin Bros,
274 NLRB 413 ( 1985).
19 There is no proof that employees had in fact been discussing union
activities as they passed time by talking to each other in groups . Never-
theless , the violation stands.
20 See NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974); Republic
Aviation Corp. v. NLRB, 324 U.S 793 , 801 fn . 6 (1945); and NLRB V.
Silver Spur Casino, 623 F.2d 571, 581-592 (1980), cert. denied 451 U.S.
906 (1981).
Thus Respondent had opened for business in mid-Janu-
ary. Not only did each month bring an increase in the
volume of total sales, through February and March, but
as described above by Allan in his testimony, the spring
and summer months traditionally bring an increase in
customer traffic for all auto dealerships. So at first, the
question appears to be, why not add three more salesper-
sons to the existing force of six.
In reviewing the evidence to answer this question, I
begin with the evidence provided by the General Coun-
sel's witnesses . In his interview with Allan, Roberts was
told that only five salespersons would be hired so all
could make some money. Aguiar was told by Allan that
he would be the sixth person hired and the last, until
sales were up to 150-200 cars per month; and Harpe had
been told by Allan, after Harpe had been hired, that
Allan was not going to load up the floor, so all the sales-
men could make some money. The month-by-month
volume of sales was 19 cars in January, 59 cars in Febru-
ary, and 80 cars in March. Allan's testimony that addi-
tional salespeople were needed to handle additional sales,
notwithstanding Allan's assurances to Roberts, Aguiar,
and Harpe, is contradicted by certain other factors. For
example, Roberts was terminated on 9 March, Aguiar
left on 20 March, and Harpe on 28 March. Allan re-
placed these three by hiring Ross Baldwin about 1 April.
No adverse affect on Respondent's sales was demonstrat-
ed.
The real proof of the General Counsel' s allegation is
provided by the testimony of Respondent' s witnesses,
Simpson, Decker, and DePolo. Like Allan, all three
denied they were part of any scheme to pack the unit
prior to the election on 10 April. Yet their own testimo-
ny defeats this claim.
First, unlike the General Counsel's witnesses, none of
them were asked about union withdrawal cards or told
that Respondent was going to remain nonunion. Next in
late January, Decker was originally fired from Respond-
ent's parts department for incompetency. Then he col-
lected $162/week unemployment for about 4 weeks. On
22 March, the Union made its demand for recognition
and about 2 weeks later, Decker applied for work at Re-
spondent. This timing suggests to me that Decker was
led to believe after 22 February, he would be hired if he
applied.
Next, DePolo just happened to leave Art Bridges'
Pontiac and be hired by Respondent about 5 March, and
then was fired in early July for poor sales performance
and poor attendance. Attempting to be charitable by
characterizing Decker and DePolo's work history with
Art Bridges' owned enterprises as mixed, I ask is it then
mere coincidence that both are now back on Bridges'
personal payroll, one as his personal chauffeur and the
other as a secretary.
To provide the final link in the chain of circumstanial
evidence, I turn to consider the case of Simpson. Before
Simpson was hired as a salesman there is evidence that
his employment at Respondent was to be as used-car
manager. About 1 March, Allan told Harpe flatly that
Simpson was going to be Respondent's used- car manager
and begin on Saturday, the next day. On that Saturday, 2
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March, Harpe asked Walker about Simpson, who said,
"We haven't finished our investigation yet." Aguiar also
heard Walker make the statement. When Simpson finally
did arrive at work about 5 March, Harpe asked him a
question while both were on the sales floor, "I thought
you were going to be used car manager ." Simpson
merely walked away without making any reply. From
Simpson's personnel file maintained by Respondent and
written in Walker's handwriting came the following note
(G.C. Exh. 5):
Stan Koeningsberg
Very good, hard worker and honest . Never cause
any heat on floor . Non union motivated. If he
would open up a store tommorrow , he would put
him on immediately.
Bill Shepard
Although Walker testified he could not recall how he
happened to write this note, other evidence connects the
note to a past employer of Simpson.
Allan testified that a used-car manager was not hired
in early March-even though sales allegedly rose enough
to justify three more salespersons, due to the cost of
hiring the used-car manager (R. Br. 833). Several weeks
later a man named Fischer was hired to perform this job.
Meanwhile, Allan was doing most of the appraisals. Ac-
cording to Aguiar, Simpson did perform at least one ap-
praisal. In conclusion , I note Simpson 's explanation for
his own alleged face-saving representations to coworkers
at his prior job, that he was being hired by Respondent
as the used -car manager . The evidence is summarized in
the facts above, and need not be repeated. It is very
likely that Respondent intended to hire Simpson as used-
car manager. The change in signals supports the General
Counsel's theory. In the context of this case, I find Simp-
son's testimony unworthy of belief and I do not credit it.
In light of the persuasive circumstantial evidence dis-
cussed above, I agree with the General Counsel that Re-
spondent, through its agents Walker and Allan, hired
Simpson, Decker, and DePolo for the purpose of pack-
ing the unit and undermining support for the Union, in
violation of Section 8(a)(1) of the Act.21 In making this
finding, I rely on the timing of their employment, the un-
usual circumstances surrounding their hiring, the short-
lived nature of the employment, and at least in the case
of Decker and DePolo, their prior connection to Re-
spondent's ownership. I also note the current employ-
ment of Decker and DePolo.
7. The alleged involuntary retention of Harpe on
the employment rolls for the purpose of voting
against the Union in the representation election
As noted above, Harpe was on medication for a heart
condition, but was otherwise generally healthy. On 28
March, Harpe developed a 24-hour virus infection seri-
ous enough to require Harpe's hospitalization for a single
night . On discharge , Harpe decided to resign, because his
earnings had declined due to the hiring of additional
salespersons and because he did not otherwise need the
money. When Harpe called Allan to tell him of his deci-
sion, Allan told him not to quit yet, but rather to permit
Allan to carry Harpe as being on sick leave . Allan can-
didly explained to Harpe, "I need you in the union elec-
tion , but if you are going to vote for the Union, don't
bother to come in." On 5 April, Allan met Harpe at the
dealership and reiterated his order, "If you are coming to
vote for the Union don't bother." Indeed, Harpe's last
day on the books was 11 April, 1 day after the election.
According to Allan, whose credibility I have found
generally suspect throughout this case, Harpe called him
to request time off due to uncertain health. At this point,
Allan admitted to making a neutral reference to the
coming election, saying only that he hoped Harpe could
vote, whichever way he decided to go. Allan denied tell-
ing Harpe not to vote if it was in favor of the Union and
he denied any prior requests to Harpe asking him to
promise not to try to bring the Union in.
In rebuttal, Harpe was called back by the General
Counsel and again explained that he made a speedy re-
covery after his discharge from the hospital. He denied
the conversation described by Allan. I credit Harpe in
toto and again find him to be a very credible witness.
In analyzing this alleged violation, I find it goes hand
in glove with the hiring of Simpson, Decker, and
DePolo, in order to pack the unit. Here Allan felt that
Harpe had committed himself not to assist in any union
organizing attempt. More specifically, Allan felt he had a
solid "no" vote against the Union so he manipulated
Harpe's attempted resignation to be effective after the
election. I find this violates Section 8(a)(1) of the Act as
it represents still another attempt to undermine support
for the Union.22
8. The alleged denial of Tom Roberts' leave request
It is unnecessary to repeat all of what has already been
stated. It is clear to me that Allan believed Roberts to
have been the instigator of the Union's organizing cam-
paign . Allan said exactly that to Aguiar on 23 or 24 Feb-
ruary and again on 11 March. Allan also told Aguiar on
20 March that Allan knew that Roberts had signed a
union authorization card. Accordingly, it comes as no
surprise that Roberts' request for time off was denied.
Although Roberts had followed standard procedures in
obtaining Harpe as a replacement, Allan rejected Harpe
in order to harass Roberts. The evidence in this case
shows a pattern of harassment of which the denial of
Roberts' leave request is only a single part. Thus Walker
reacted to Roberts' 100 percent on a salesman test with
hostility. A simple attempt to obtain a $2 gas reimburse-
ment or a mutually advantageous deal on a new car for a
relative became fraught with peril.
Concerning the attempt to get time off, the record
shows that permission to switch shifts was freely given
to all except Roberts. For example, Aguiar switched
21 See Suburban Ford, 248 NLRB 364, 372-373 (1980), affd as modi-
fied 646 F 2d 1244 (8th Cir 1981), Markus Hardware, 243 NLRB 903,
911-912 (1979)
22 Michael M Schaefer, 246 NLRB 181, 184 (1979), affd 697 F 2d 558
(3d Cir 1983)
BRIDGEWAY OLDSMOBILE 1259
shifts with Hover about five occasions. Harpe had
switched shifts with Blanton sometime after he was not
permitted to switch with Roberts. Simpson also gave
critical testimony on this point. He recalled that DePolo
was able to switch shifts with Blanton in April or May.
On another occasion DePolo took a day off without any
replacement . Simpson also described in his testimony
how Decker received 2 weeks off for a trip to Hawaii
and Hover took 6 weeks off. Neither of these secured re-
placements.
Based on the above, I find that Respondent discrimi-
nated against Roberts29 because of Roberts' suspected
union activities, and thereby violated Section 8(a)(1) and
(3) of the Act.
9. The alleged termination of Roberts due to his
perceived union activities
I have found in the facts section of this decision that
Roberts was fired and did not quit. Because the asserted
reason for Roberts' discharge, insubordination, is found
to be wholly pretextual, it is unnecessary to provide the
Board 's Wright Line analysis.24 The pretextual nature for
Roberts' termination is reflected in part by the credibility
analysis of Allan, Walker, and Simpson 's testimony pro-
vided in the facts section. In addition, there is abundant
proof of Respondent's animus toward the Union in gen-
eral and toward Roberts in particular as the perceived
leader of the in-house organizing effort.25
In this case , there is no issue about employer knowl-
edge of union activity nor that Respondent believed
Roberts to be responsible for it. The timing of Roberts'
discharge about 2-1/2 weeks after the Union's demand
for recognition cannot be ignored.26 Expressions of Re-
spondent's animus such as Allan's statement to Harpe of
what Respondent would do if the Union came in are fre-
quent. In addition, Walker's testimony that he overruled
Allan's discharge of Roberts is so demonstrably false as
to further contribute to the finding of an unlawful
motive.27
In finding unlawful motive based on pretext and other
reasons, I am not unmindful that Aguiar was requested
by Allan to remain even after he admitted signing a
23 In Marathon-Le Tourneau Ca v NLRB, 699 F.2d 248, 253 (5th Cir.
1983), the court stated that "the essence of discrimination . . consists of
treating like cases differently " See also NLRB Y. Sikes Corp., 692 F 2d
34, 35 (6th Cir . 1982), cert . denied 464 U.S. 817 ( 1983).
24 NLRB v. Transportation Management Co., 462 U.S. 393, 398, 401-
402 (1983), affg. Wright Line., 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert . denied 455 U.S. 989 ( 1981).
For the Board 's view that these cases do not apply to wholly pretextual
cases, see Bond Press, 254 NLRB 1227 fn 2 (1981); NLRB v. United Sani-
tation Service, 737 F.2d 936, 939 (11th Cir. 1984).
25 Before the unionization dispute began , Roberts was not a trouble-
some employee . Compare NLRB Y. Apico Inns, 512 F.2d 1171 (9th Cir.
1975). Accordingly, even if Roberts were insubordinate it was due to
Allan's provocation Naturally , an employer cannot provoke an employee
through unfair labor practices and then terminate the employee for being
understandably hostile NLRB v. M & B Headwear Co, 349 F.2d 170, 174
(4th Cir. 1965).
28 Coil-A.C.C., Inc. Y. NLRB, 712 F2d 1074, 1076 (6th Cir. 1983)
Grandee Beer Distributors v. NLRB, 630 F.2d 928, 933 (2d Cir. 1980);
NLRB Y. George Roberts & Sons, 451 F 2d 941, 945-947 (2d Cir. 1971)
(employer 's claim that employee was "insubordinate" rejected).
27 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
union authorization card. Moreover, others who signed
were not fired. However, making an example of the per-
ceived ringleader may be enough to deter other employ-
ees from engaging in protected activity.28
Based on all the evidence available in the record, I
find that Roberts was terminated on account of his union
activities, in violation of Section 8(a)(1) and (3) of the
Act.29
10. Is a bargaining order warranted30
The General Counsel seeks and Respondent opposes a
bargaining order. To ascertain whether a bargaining
order is required as a proper remedy in this case, I begin
with established facts. The unit, as originally constituted,
had six members, of whom four had signed union author-
ization cards. Thus the General Counsel has proven ma-
jority status, an essential element for the remedy in ques-
tion.31 Further, the relatively small size of the unit is a
factor which tends to support the issuance of the
order.32 On 22 February, when the demand for recogni-
tion was made, the employee complement was the same
and the majority still existed.
I turn now to the Board's recent decision in Kona 60
Minute Photo, 277 NLRB 867 (1985), in which the Board
restated the traditional tests for this remedy. S 3 Citing the
case of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Board noted the two categories of cases in which a
bargaining order is appropriate. I find that in the instant
case, Respondent's unfair labor practices fall into catego-
ry two: "less extraordinary cases marked by less perva-
sive practices which nonetheless still have the tendecy to
undermine majority strength and impede the election
process."
Consider the similarity of the facts in Kona, in which
the Board approved a bargaining order to the facts of
the present case . As soon as Respondent learned of union
activity at the Kona shop it embarked on an antiunion
campaign designed to discourage its employees from sup-
porting the union. The campaign consisted of unlawful
interrogations, threats to cancel a pay raise and to dis-
charge employees because of their union activities, state-
ments that seeking union representation would be an ex-
ercise in futility because Respondent would refuse any
union bargaining request and a threat to hire new em-
ployees to replace employees who went on strike. In the
present case, most of the same violations are present.
Moreover, an employee was actually discharged and
Allan made no secret of the reason, because Roberts was
28 P.S.C Resources v. NLRB, 576 F 2d 380, 384 (1st Cir. 1978), NLRB
Y. Challenge-Cook Bros, 374 F 2d 147, 152 (6th Cir. 1967); Hambre
Hombre Enterprises, 228 NLRB 136, 137 (1977), enfd 581 F.2d 204 (9th
Cir. 1978).
29 For two cases very similar to the case at bar , see Rood Industries,
278 NLRB 160 (1986), and Dr. Frederick Davidowitz, D.D.S., 277 NLRB
1046 (1985).
8° The General Counsel has alleged that certain of the 8 (a)(1) viola-
tions found herein also violate Sec. 8(a)(5) of the Act. I so find In light
of my recommendation that a bargaining order issue , it is unnecessary to
engage in any further analysis of this allegation.
21 Compare Gourmet Foods, 270 NLRB 578 (1984).
32 NLRB v. Horizon Air Services, 761 F 2d 22, 31 (1st Cir. 1985); NLRB
v. Bighorn Beverage, 614 F.2d 1238, 1243 (9th Cir 1980)
33 See also Quality Aluminum Products, 278 NLRB 338 (1986).
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believed to be the one responsible for bringing the Union
in. Further , three additional employees were hired to
vote against the Union , and another employee was re-
tained on the rolls with unmistakably clear marching
orders : he was needed to vote against the Union and if
he intended to vote for the Union , he need not bother to
come in.
In explaining its order in Kona, the Board noted the
small size of the unit (seven employees) and the high
level of management officials involved . 84 Here the unit
size was six and Walker , Allan, and Pratt were the high-
est management officials present on a daily basis.
The Board held in Kona that Respondent 's unlawful
conduct struck at the very core of the employees' orga-
nizational efforts . Thus repeated threats of discharge for
union activity were made in Kona as in the present
case-and an actual discharge for union activity in the
present case . 35 All of Respondent 's activities were
widely disseminated and invoke severe and pervasive co-
ercion which had lingering effects not readily dispelled.
The Board 's majority opinion in Kona did not speak of
"hallmark" violations , although in her concurring opin-
ion, Member Dennis did . A "hallmark" violation is
highly coercive and likely to have a lasting effect on em-
ployees . Examples of "hallmark" violations which oc-
curred in the present case , include discharges, threats to
close the dealership , 36 and threats to fire employees.37
In deciding whether a bargaining order is required, I
am instructed by the Board that employee turnover is
not a factor to be considered . 38 The Board's view is not
shared by some courts of appeals ; however, I am bound
to follow Board precedent . 39 Here , at least two employ-
ees Roberts and Aguiar left as a direct result of Re-
spondent's unfair labor practices . Furthermore, it is argu-
able on this record whether Harpe would have resigned
if Respondent had not hired Simpson , Decker, and
DePolo . There is evidence that in light of the reduced
sales opportunities, Harpe felt that his efforts went
unrewarded . Thus up to half the unit was affected. To
consider employee turnover here as an impediment to a
bargaining order would be to reward an employer for its
own misconduct.40
Furthermore , the departure of Allan and Pratt from
Respondent 's employ should have no affect on whether
the bargaining order is appropriate . Allan's statements re-
peatedly referred to the policies of Art Bridges, who
continues to be majority owner of Respondent.
Thus, in light of the violations found herein, I con-
clude that the possibility of erasing the effects of the Re-
spondent 's unfair labor practices is slight . Requiring the
34 See Long-Airdox Co, 277 NLRB 1157 (1985)
ss To emphasize the seriousness of termination, one court termed dis-
charge as "the industrial equivalent of capital punishment " Griffin v
Automobile Workers, 469 F 2d 181, 183 (4th Cir 1972)
36 See Mariposa Press, 273 NLRB 528 (1984), Long-Airdox Co, supra,
277 NLRB 1157
37 There are also many examples of nonhallmark violations, such as
coercive interrogation See Sangamo Weston. Inc, 273 NLRB 256 (1984)
38 Highland Plastics, 256 NLRB 146, 147 and fn 9 ( 1981) But see
Windsor Industries, 273 NLRB 1157 (1984)
99 Iowa Beef Packers, 144 NLRB 615 (1963)
40 See NLRB v. J Coty Messenger Service, 763 F 2d 92, 101 (2d Cir
1985)
Respondent simply to refrain from such conduct will not
eradicate the lingering effects of the violations. I con-
clude that the employees' representation desires ex-
pressed here through authorization cards would, on bal-
ance, be protected better by the issuance of a bargaining
order than by traditional remedies . Accordingly, I rec-
ommend that Respondent be ordered to bargain with the
Union as the duly designated representative of the em-
ployees in the unit found appropriate effective 27 March
1985. The Respondent's obligation to bargain with the
Union should date from 22 February, the date the Union
demanded recognition from Respondent.41
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part- time salespersons em-
ployed by Bridgeway Oldsmobile at its 25715 Mis-
sion Blvd., Hayward, California facility; excluding
all mechanics, parts, lubrication, lot employees, em-
ployees currently covered by a collective bargain-
ing agreement, financial and insurance employees,
office clerical employees, guards, and supervisors as
defined in the Act.
4. Since 22 February 1985, and continuing thereafter,
the Union has represented a majority of the employees in
the above-described appropriate unit.
5. By soliciting employees or applicants for employ-
ment to withdraw from membership in the Union, Re-
spondent engaged in conduct violative of Section 8(a)(1)
of the Act.
6. By interrogating employees about the union activi-
ties of themselves and their fellow employees, Respond-
ent engaged in conduct violative of Section 8(a)(1) of the
Act.
7. By threatening employees with loss of employment,
closure of the dealership, unspecified reprisals and with
the futility of organizing a union , Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
8. By making statements to employees giving employ-
ees the impression that their union activities were under
surveillance, Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
9. By telling an employee not to come in unless he in-
tended to vote against the union, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
" Downtown Toyota, 276 NLRB 999 fn 2 (1985 ) This case is also im-
portant because it involved the same union local, an auto dealership lo-
cated in the same general area as Respondent , the same employer's asso-
ciation, and similar unfair labor practices as found herein The Board also
affirmed the issuance of a bargaining order
BRIDGEWAY OLDSMOBILE 1261
10. By employing three salespersons for the purpose of
undermining support for the Union , Respondent engaged
in conduct violative of Section 8(a)(1) of the Act.
11. By retaining an employee who desired to retire so
that employee could vote against the Union , Respondent
engaged in conduct violative of Section 8(a)(1) of the
Act.
12. By denying an employee's leave request and subse-
quently terminating an employee because he engaged in
union activities, Respondent engaged in conduct viola-
tive of Section 8(a)(1) of the Act.
13. By hiring the additional employees described in
paragraph 10, above, by retaining the employee de-
scribed in paragraph 11, above , and by refusing to recog-
nize and bargain with the Union since 22 February 1985,
Respondent engaged in conduct violative of Section
8(a)(5) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
serious unfair labor practices , I shall recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative actions necessary to effectuate the poli-
cies of the Act.
Initially, as I found Respondent's unfair labor practices
to have been pervasive , serious, and to the very essence
of the Act, I shall recommend that the cease-and-desist
order be broadened to require Respondent to cease and
desist from , in any other manner interfering with, re-
straining , or coercing its employees in the exercise of
their Section 7 rights.42 Having found that Respondent
unlawfully discharged Thomas Roberts on 9 March
1985, I shall recommend that Respondent make him
whole for any loss of earnings resulting from the dis-
crimination, less any interim earnings, with the backpay
and interest thereon computed in the manner prescribed
by the Board in F. W Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977).43
I shall also recommend that Respondent be ordered to
offer him immediate reemployment in his former position
or, if the position no longer exists, in a substantially
equivalent position , without loss of seniority or other
benefits, and make him whole for any loss of earnings
suffered by reason of the unlawful discrimination against
him by payment to him of backpay equal to what he
would have earned from Respondent for the period 9
March 1985 until the date of an unconditional offer of re-
employment by Respondent, less any interim earnings,
with backpay and interest thereon computed in the
manner set forth above. Finally, in view of Respondent's
serious, extensive , and pervasive unfair labor practices
which, I believe, were calculated to destroy the union
organizing campaign and the Union's suspected, and
claimed , majority status, and as I am persuaded that the
application of traditional remedies for the unfair labor
practices will not eliminate the lingering and coerceive
and restraining effects of such, thereby making the hold-
ing of a fair, meaningful , and free election virtually im-
possible, I regard the signed authorization cards of the
42 Hsckmott Foods, 242 NLRB 1357 (1979).
49 See, generally , Isis Plumbing Co., 138 NLRB 716 (1967)
salesmen as constituting a far more reliable measure of
their representation desires . Accordingly, I shall recom-
mend the issuance of an order requiring Respondent to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of its salesmen, with
date of the obligation to run from 22 February 1985.
Consistent with the Board's decision in Sterling Sugars,
261 NLRB 472 (1982), I will also recommend that Re-
spondent be required to remove from its records and
files any reference to the discharge of Roberts and notify
him in writing that this has been done and that evidence
of the unlawful discharge will not be used for future per-
sonnel actions against him.
The General Counsel argues in her brief that any
remedy provided herein should include a visitatorial
clause authorizing the Board to engage in discovery
under the Federal Rules of Civil Procedure (FRCP) so
that it will be able to monitor compliance with the
Board 's Order as enforced by a court of appeals. Such a
clause, according to the General Counsel, would permit
the Agency to examine books and records of Respond-
ent, and to take statements from officers and employees
and others for the purpose of determining or securing
compliance with the court's judgment . The discovery
rules of the FRCP provide a mechanism for achieving
the objectives of a visitatorial clause . It appears, as
argued by the General Counsel, that inclusion of a visita-
torial clause would facilitate compliance because it
allows avoidance of delays inherent in both applications
to a court of appeals for a discovery order and enforce-
ment of investigatory subpoenas under Section 11 of the
Act in Federal district courts. A visitatorial provision
also appears to be a regular inclusion in remedial orders
sought and obtained by a number of other Federal agen-
cies . NLRB v. Steinerfilm, Inc., 702 F.2d 14 (1st Cir.
1983). See also U.S v. Bausch & Lomb Co., 321 U.S. 707,
725-726 (1944). The order sought by the General Coun-
sel here , I conclude , reasonably tends to effectuate the
purposes of the Act and to preclude the evasion of the
order deemed necessary to remedy the violation found.
Accordingly, the recommended Order herein will in-
clude the requested visitatorial clause.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed44
ORDER
The Respondent, Bridgeway Oldsmobile, Inc.,
Haywork, California, its agents , successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees or denying employee leave
requests because it knew or suspected they engaged in
union activities.
(b) Coercively interrogating employees about their
union membership, sympathies, and activities and the
44 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership, sympathies, and activities of their
fellow employees.
(c) Threatening employees with loss of employment,
closure of the dealership, unspecified reprisals, and with
the futility of organizing a union.
(d) Soliciting its employees to withdraw from member-
ship in the Union if they wished to be hired or continue
their employment.
(e) Giving employees the impression they were under
surveillance.
(f) Telling an employee not to come in unless he in-
tended to vote against the union.
(g) Employing salespersons for the purpose of under-
mining support for the Union.
(h) Retaining an employee who desired to retire so
that employee could vote against the Union.
(i) Denying an employee 's leave request and subse-
quently terminating the same employee because he en-
gaged in union activities.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Thomas Roberts whole for any loss of earn-
ings suffered as a result of his discharge on 9 March 1985
in the manner described in the remedy section of this de-
cision.
(b) Offer Thomas Roberts immediate employment in
his former position or, if that job no longer exists, in a
substantially equivalent one, without prejudice to his se-
niority or any other rights or privileges of employment
and make Roberts whole for any loss of earnings in the
manner described in the remedy section of this decision.
(c) Expunge from its files any references to the dis-
charge of Thomas Roberts on 9 March 1985 and notify
him, in writing, that such has been done and that said un-
lawful actions will not be used as a basis for future per-
sonnel actions against him.
(d) Preserve and, upon request, make available to the
Board, or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this recommended Order.
(e) On request, recognize and bargain with the Union,
as the exclusive representative for purposes of collective
bargaining of its employees in the appropriate unit de-
scribed above, with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if an
agreement is reached, embody such in a written, execut-
ed contract.
(f) Permit the General Counsel to engage in discovery
under the Federal Rules of Civil Procedure and pursuant
to the visitatorial clause as described in the Remedy por-
tion of this decision.
(g) Post at its Hayward, California, facility, copies of
the attached notice marked "Appendix."45 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
45 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "