Ed Chandler Ford, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1981

254 N.L.R.B. 851 (N.L.R.B. 1981)

ED CHANDLER FORD, INC.
Ed Chandler Ford, Inc. and Automobile Salesmen's
Union Local 1095, United Food and Commer-
cial Workers International Union, AFL-CIO.
Cases 32-CA-1244, 32-CA-1307, and 32-RC-
446
January 27, 1981
DECISION AND ORDER
On October 31, 1979, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(l) of the Act in var-
ious ways, but did not violate Section 8(a)(3) and
(5) of the Act. With respect to the 8(a)(5) allega-
tion, the Administrative Law Judge did not find a
violation on the ground that on the critical date of
the Union's demand for recognition the Union did
not represent a majority of the employees in the
appropriate unit. He did recommend that the elec-
tion be set aside on the basis of Respondent's ob-
jectionable conduct, and that a second election be
held. We agree with the Administrative Law
Judge's 8(a)(l) findings and his dismissal of the
8(a)(3) allegation. However, we would find that the
Union represented a majority at times relevant; that
the unfair labor practices were of such a serious
nature as to foreclose the possibility of a fair
second election in the foreseeable future; that Re-
spondent has violated Section 8(a)(l) and (5); and
that a bargaining order is necessary and proper to
remedy the violations.
Concerning the Union's majority status, the
record shows that on August 11, the date of the
demand and refusal to bargain, the Union had 18
cards out of a unit of 35 employees. 2 The Adminis-
trative Law Judge in finding the Union did not
I Respondent and the General Counsel have excepted to certain credl-
bility findings made by the Administrative L.aw Judge. It is the toard's
established policy not to overrule an administrative las judge's resolu-
tions with respect to credibility unless the clear preponderance of a1 of
the relevant evidence convinces us that the resolution, are incorrect
Standard Dry Wall Products., Inc.. 91 NLRH 544 (1950), enfd 188 2d
362 (3d Cir. 1951). We have carefully examined the record and find rio
basis for reversing his findings.
2 We agree with the Administrative la Judge's unit placemelnt find-
ings that employees Acree and Kim Choi are included in the appropri;lle
unit and that finance managers are excluded. We reach this result ulith
respect to the finance managers Xon, the ground that hey are nolt illesper-
sons and thus not properly part of the stipulated unit limited to salesper
sons.
represent a majority at times relevant concluded,
however, that employee Maderios' card could not
be included among those supporting the Union's
claim of majority status because, assertedly, it was
signed in the belief that its only purpose was to
secure an election. This conclusion is, we believe,
unwarranted.
On August 11 salesman Taylor while at work
gave Maderios an authorization card3 and asked
him to read it. Maderios took the card to his office
in another building, filled it out, and returned it to
Taylor. There is no contention or evidence that
Taylor stated that the card was being solicited
solely for the purpose of securing an election or
that Maderios in any manner indicated at the time
that he was signing the card only for such purpose.
Thus there is nothing in the circumstances sur-
rounding the signing of the card to suggest that the
Union or Taylor misled Maderios with respect to
the card's purpose or that for any other reason Ma-
derios' overt action in signing should be given any
meaning other than that unambiguously stated on
the card; i.e., that he authorized the Union to rep-
resent him.
However, about a month before being solicited
and hence about a month before the organizing
campaign began, Maderios, a former union
member, ran across a union representative who
told him that the Union was about to circulate
cards among Respondent's employees. The repre-
sentative asked Maderios to sign one (when one
was presented to him), explaining that the only
purpose of the cards was to get an election. Fur-
ther, at the hearing Maderios testified that he did
not read the card given him by Taylor prior to
signing it because it was unnecessary to do so as
the union representative had stated it was only for
an election. On the basis of these matters, the Ad-
ministrative Law Judge, as indicated, concluded
that Maderios signed the card solely for the pur-
pose of securing an election and thus that his card
did not support the Union's claim of majority rep-
resentation. This result is both unrealistic and con-
trary to Board law.
First, the union representative's statement to Ma-
derios made a month before Maderios signed and
prior to the start of the organizing campaign
cannot properly be considered part of "the totality
of circumstances surrounding the card solicita-
tion"4 that the Board considers in determining if a
card signer has been misled with respect to the
:' The card given to Maderios, like all others placed In es idence by the
General Counsel , conrtains clear and unequi ocal langualge that the signer
of te .afrl Iluhl, rizes the I !iT to repres nt hini for purposes f collec-
tis, bargliing
4 See, g. , Srr,lu, & ( ,. 172 NIRI 7 2. 713, fri - (1968)
254 NLRB No. 82
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes for which his card will be used. The inci-
dent was too remote in time and irrelevant in view
of the fact that the circumstances surrounding the
actual solicitation of the card reveal that Taylor
made no representations at all concerning the
card's use and told Maderios to read the card. Con-
sequently, there is no proper basis for concluding
that the solicitation of the card was accompanied
by any explicit or implicit representation that the
card would be used only for an election. Second,
with respect to Maderios' statement that he signed
the card without reading it because of the union
representative's statement it would be used only for
an election, this testimony concerns subjective
intent and under established Board policy is of no
weight in determining the purpose for which a
card was signed.5 The rejection of such subjective
purpose is especially appropriate here where Ma-
derios at the time of signing said nothing suggest-
ing he was supporting an election only. Finally, it
seems wholly unrealistic to us to conclude, as in
effect the Administrative Law Judge did, that Ma-
derios, a member of the Union for some 10 years,
did not know without reading the authorization
card at the time he was solicited what it provided
and that he was unaware it could be used to secure
recognition as well as an election. In short, we find
Maderios' card valid for purposes of determining
the Union's majority status and in consequence
conclude that at all times relevant the Union repre-
sented a majority, that is, 18 employees out of a
unit of 35.
With respect to the unfair labor practices, we
would find that they fully warrant and require a
bargaining order in order to remedy effectively Re-
spondent's unlawful conduct. We are not dealing in
this case with some random 8(a)(1) violations com-
mitted by a minor supervisor and involving only a
scattered few of the unit employees. Rather, the
situation was one in which the day after the Union
made its demand Respondent's sales manager in a
talk to the assembled unit employees impressed
upon them that their support of the Union was in-
compatible with their continued employment (i.e.,
in effect he threatened to discharge them for their
union activity) and further unlawfully threatened
them with a loss of existing benefits if the Union
got in. He also in his talk unlawfully prohibited the
employees from discussing the Union at any time
during the workday. Thus we have here unitwide
serious unlawful threats and restrictions, the effects
of which are unlikely to be eradicated by our usual
cease-and-desist remedial order but which will
remain to interfere with the employees' expressing
a free choice in the second election recommended
Id. at 734.
by the Administrative Law Judge. Consequently,
in view of the above, we find that Respondent un-
lawfully refused to recognize and bargain with the
Union on and after August 11, 1978, and, accord-
ingly, we shall order Respondent to recognize and
bargain with the Union upon request, said Order to
be effective as of August 11, 1978.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ed Chandler Ford, Inc., Hayward, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph l(e) and re-
letter the subsequent paragraph accordingly:
"(e) Refusing to recognize and bargain in good
faith with Automobile Salesmen's Union Local
1095, United Food and Commercial Workers Inter-
national Union, AFL-CIO, as the exclusive bar-
gaining representative of the following unit which
we find appropriate for such purposes:
"All salesperson employed by the Employer at
its Hayward, California, location, excluding all
other employees, office clericals, guards and
supervisors as defined in the Act."
2. Substitute the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Upon request, bargain with Local 1095 as
the exclusive bargaining representative of the em-
ployees in the appropriate unit, as described above,
with respect to wages, hours of employment, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NO-rICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees that their
union activities are inconsistent with continued
employment with Ed Chandler Ford, Inc.
WE WILL. NOT maintain in effect a rule
which prohibits employees from engaging in
union solicitation or from talking about a
852
ED CHANDLER FORD. INC
union during nonworking time in nonpublic
areas of Ed Chandler Ford, Inc.
WE WILL NOT deliberately include names of
ineligible voters in the voter eligibility list we
furnish to the National Labor Relations Board
for the purpose of defeating a union in an elec-
tion conducted by the National Labor Rela-
tions Board.
WE WILI. NOT threaten employees that their
bonuses will be canceled if they support a
union.
WE WILL NOT refuse to recognize and bar-
gain with Automobile Salesmen's Union Local
1095, United Food and Commercial Workers
International Union, AFL-CIO, as the exclu-
sive representative of the employees in the fol-
lowing appropriate unit:
All salespersons employed by the Employer
at its Hayward, California, location, exclud-
ing all other employees, office clericals,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with or attempt to restrain or coerce
employees in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL rescind our rule which prohibits
employees from engaging in union solicitation
or from talking about a union during nonwork-
ing time in nonpublic areas of Ed Chandler
Ford, Inc.
WE WILL, upon request, bargain with Local
1095 as the exclusive representative of the em-
ployees in the above unit, and embody in a
signed written agreement any understanding
reached.
ED CHANDLER FORD, INC.
DECISION
STATEMENT OF ITHE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding is based upon unfair labor practice
charges filed in Cases 32-CA-1244 and 32-CA-1307 and
a representation petition filed in Case 32-RC-446 by
Automobile Salesmen's Union Local 1095, United Food
and Commercial Workers International Union, AFL-
CIO,' herein called the Union.
The unfair labor practice charge in Case 32-CA-1244
was filed on September 22, 1978, and amended on Sep-
tember 25, 1978, and November 15, 1978. The unfair
labor practice charge in Case 32-CA-1307 was filed on
I Pursuant to the stipulation of the parties, the name of the Charging
Party-Petitioner, formerly Automobile Salesmen's Union Local 1095,
Retail Clerks International Union, AFL-CIO, has been amended to re-
flect the change resulting from the merging of Retail Clerks International
Union with Amalgamated Meatcutters and Butcher Workmen of North
America on June 7, 1979.
October 18, 1978. On November 20, 1978, the Regional
Director for Region 32 of the National Labor Relations
Board on behalf of the Board's General Counsel issued a
consolidated complaint based upon the aforesaid charges,
which was amended on March 27, 1979. The amended
consolidated complaint alleges that Ed Chandler Ford,
Inc., herein called Respondent, has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amend-
ed, herein called the Act. Respondent filed an answer
and an amended answer denying the commission of the
alleged unfair labor practices. 2
On August 11, 1978, the Union filed the aforesaid rep-
resentation petition wherein it petitioned the Board to
conduct a representation election among Respondent's
salespersons. Pursuant to a Stipulation for Certification
Upon Consent Election approved by the Board's Region-
al Director on September 1, 1978, an election was con-
ducted on September 26, 1978, in a unit of Respondent's
salespersons. The original tally was: 9 for, and 18 against,
the Union; there were 10 challenged ballots. The parties
subsequently stipulated that the challenges to three of the
ballots should be sustained, thereby leaving seven chal-
lenged ballots, an insufficient number to affect the re-
sults. The Union filed timely objections to the conduct of
the election and the Board's Regional Director for
Region 32, on November 20, 1978, after an investigation,
issued his Report and Recommendation on Objections
wherein in essence he recommended that several of the
objections be considered jointly with the unfair labor
practices alleged in the consolidated complaint previous-
ly issued in the instant unfair labor practice proceeding.
On April 27, 1979, the Board affirmed this decision.2
On May 18, 1979, the Board's Regional Director for
Region 32 issued an order consolidating for hearing the
Union's objections in Case 32-RC-446 with the unfair
labor practices alleged in Cases 32-CA-1244 and 32-
CA-1307. I conducted a hearing in this consolidated pro-
ceeding on July 10-12, 1979.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs of the General Counsel and Respon-
dent, I make the following:
FINDINGS OF FACT
I. THE AI.I.EI) UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates a Ford Motor dealership in
Hayward, California, where it sells new and used motor
vehicles. During the time material herein it employed be-
tween 30 and 40 salespersons who were supervised by
General Sales Managers Al Filippi and Carl Viglione
2 In its answer to the consolidated complaint Respondent admits the
Union is a labor organization within the meaning of Sec 2(5) of the Act
I.ikewise, Respondent admits that it meets the Board's applicable discre-
tionary jurisdictional standard and is an employer engaged in commerce
s ithin the meaning of Sec 2(6) and (7) of the Act Accordingly, I find it
ll cfcctu;llte the policie, of the Act for the Board to assert its Jurisdic-
Iionl oer the unfair labor practice cases herein
It'd handler Ford. Inc.. 241 NRH 120(1 (1979
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Sales Manager Lanny Brum and Used-Car Manager
Jack Diggs. Respondent's president and principal owner
is Ed Chandler.
In either the first or the second week of August 1978, 4
the Union commenced a campaign to organize Respon-
dent's salespersons. Respondent's management learned
about the Union's organizational campaign on August 11,
when union business agents visited Respondent's presi-
dent, Ed Chandler, and requested that Respondent rec-
ognize the Union as the salespersons' exclusive bargain-
ing representative and bargain with the Union for a col-
lective-bargaining agreement covering those employees.
Respondent's president refused to do this so the Union
on August 11 filed a representation petition with the
Board's Oakland, California, Regional Office seeking a
representation election in a unit of Respondent's salesper-
sons. On August 11, General Sales Manager Filippi
spoke to salesperson Pearl Quilice about the Union and
on August 12, at a regularly scheduled sales meeting,
spoke to all of the salespersons about the Union. On
August 31 Respondent and the Union entered into an
agreement which was approved the next day by the
Board's Regional Director wherein the parties agreed
that the Board would conduct a representation election
on September 26 in a unit of Respondent's salespersons.
The election was conducted as scheduled and the Union
failed to receive a majority of the ballots cast.
The ultimate issues presented for decision by the
pleadings are as follows:
1. Whether General Sales Manager Filippi on August
11 questioned salesperson Quilice about her union activi-
ties and sympathies and warned Quilice that Respondent
would never bargain with the Union and would dis-
charge the salespersons who supported the Union.
2. Whether General Sales Manager Filippi on August
12, when he met with the salespersons, engaged in the
following conduct: (a) threatened to discharge salesper-
sons who supported the Union; (b) threatened to cancel
bonuses paid to the salespersons if they supported the
Union; (c) stated that a former salesperson, Mike Aahle,
who quit his employment, would have been discharged
for engaging in protected concerted activity; and (d) an-
nounced and implemented an overly broad no-solicita-
tion rule which prohibited the salespersons from discuss-
ing the Union at any time or place on Respondent's
premises.
3. Whether General Sales Manager Filippi at the
August 12 meeting or at another meeting in August an-
nounced that Respondent had instituted a 10-car-per-
month production quota for each salesperson and wheth-
er this announcement was motivated by a desire to dis-
courage the salespersons from supporting the Union.
4. Whether in either August or September, Respon-
dent announced and implemented a profit-sharing plan
for its salespersons in order to discourage them from sup-
porting the Union.
5. Whether Respondent deliberately included an ineli-
gible employee in the voter eligibility list it furnished tha
Board in order to defeat the Union.
4 All dates herein refer to 1978 unless other ise specified.
6. Whether Respondent discharged salesperson Frank
Flores on August 31 because of his union sympathies and
activities.
7. Whether Respondent's refusal to recognize and bar-
gain with the Union as the salespersons' exclusive bar-
gaining representative warrants a remedial bargaining
order.
B. Filippi's August I Conversations With Quilice
The complaint alleges in substance that, on August II1,
General Sales Manager Filippi, in speaking to an em-
ployee, interrogated the employee about that employee's
and other employees' union activities and stated that Re-
spondent would never bargain with the Union and that
employees who supported the Union would be dis-
charged.
In support of these allegations, the General Counsel
called sales person Pearl Quilice, who testified that on
August II, soon after the union representatives visited
Respondent's president, Filippi, who was a friend of Qui-
lice, approached Quilice and asked whether Quilice
"Had anything to do with the Union." Quilice answered,
"[Y]es" that she was "involved." When Filippi asked for
an explanation, Quilice told him that union representa-
tion was the only way employees could negotiate for
anything. Filippi told Quilice he thought that she was
making "a mistake," and that the Union could not do
anything for the employees because Ed Chandler, Re-
spondent's president, would "never negotiate" with the
Union. Quilice further testified that later the same day
she received a telephone call at home from another sales-
person who stated that Respondent's president, Ed Chan-
dler, was looking for her. Quilice testified she assumed
Chandler wanted to talk to her about the Union, so she
phoned Filippi and asked why he had told Chandler
about her involvement with the Union and asked why
Chandler wanted to speak to her. According to Quilice,
Filippi replied that "he" knew who the "troublemakers"
were and would have to fire them and expressed the
hope that Quilice would still remain his friend.
Filippi, a witness for Respondent, admits he spoke to
Quilice on August 11, but denies questioning her about
her union activities or threatening to discharge salesper-
sons who supported the Union. His description of the
conversations is as follows. On the afternoon of August
11 he visited Quilice in her office which was not unusual
because they were friends. He advised Quilice that the
dealership had just been petitioned for by the Union.
Quilice indicated she knew about this and stated that be-
cause of her long friendship with Filippi she did not
want to act behind his back but wanted him to know she
was a union adherent. Filippi indicated that he thought
she was "nuts." Filippi further testified that later that
day Quilice phoned him at work and told him she was
upset because another salesperson had informed her that
Ed Chandler wanted to speak to her. Quilice asked
whether Filippi had informed Chandler about Quilice's
union involvement. Filippi stated that he did not keep
very many secrets from Chandler and had told Chandler
that she was a union adherent. Quilics stated that she
was upset about this and asked why Chandler wanted to
854
ED CHANDLER FORD, INC.
speak to her. Filippi stated that Chandler was looking for
her because she had left work before the end of her shift.
As described above, Filippi's and Quilice's testimony
about their August 11 conversations is in sharp conflict.
It is my opinion, based upon my observation of the wit-
nesses, that Filippi, in testifying about these conversa-
tions, was the more credible witness. It is for this reason
that I shall recommend that these allegations be dis-
missed.
C. Filippi's August 12 Meeting With the Employees
On Saturday, August 12, Filippi met with all of the
salespersons at a regularly scheduled sales meeting which
lasted approximately between 30 minutes to an hour. Fi-
lippi spent the greater part of this meeting speaking to
the salespersons about the Union in an effort to dissuade
them from supporting the Union. The record establishes
that at sales meetings, as salesperson Mark Gelender tes-
tified, Filippi "is not a soft, easy guy" but is "pretty hard
nosed." During the August 12 meeting, it is undisputed
that, in an effort to persuade the salespersons that union
representation would not be beneficial to them, Filippi
used the same tactic that he normally used to motivate
the salespersons to increase their production; namely, he
spoke in an angry tone of voice and used profanity.
However, Gelender credibly testified that on August 12
Filippi "was a little hotter than usual." The complaint al-
leges that Filippi, during the course of the meeting, ex-
pressed certain statements which violated Section 8(a)(1)
of the Act. I shall deal with these allegations one at a
time.
i. Filippi allegedly informed the salespersons "that a
former employee would have been discharged because of
his protected concerted activities if he had not voluntar-
ily terminated his employment" (complaint, par. 9(e)).
In 1978 before the events material to this case, sales-
person Mike Aahle, who is a close friend of Filippi, cir-
culated a petition among the salespersons which asked
that Respondent change their working hours. A substan-
tial number of the salespersons signed the petition. After
Aahle submitted it to management several of the signers
changed their minds and informed management and were
critical of Aahle for circulating the petition. Respondent
did not change the salespersons' hours and Aahle quit.
The complaint alleges that Filippi on August 12 told the
salespersons that "Aahle would have been discharged be-
cause of his protected concerted activities if he had not
voluntarily terminated his employment with Respon-
dent."
In support of this allegation the General Counsel relies
on the testimony of salespersons Quilice and Taylor that
Filippi told the salespersons that, if Aahle had not volun-
tarily terminated his employment, Filippi would have
discharged him for circulating the aforesaid petition. The
testimony of salespersons Flores and Kane and Sales
Manager Brum, the other witnesses called by the Gener-
al Counsel, does not jibe in significant respects with Tay-
lor's and Quilice's. Flores testified in substance that Fi-
lippi only stated that the employees would not succeed
in organizing a union because they could not rely on
their fellow employees' support because there were "a
lot of backstabbers" among the employees and, as an ex-
ample of this, pointed to Aahle's experience. Brum testi-
fied Filippi stated that he was forced to discharge Aahle
for attempting to organize a "salespersons' committee."
Kane first testified that she had absolutely no recollection
of Filippi speaking about Aahle, then, after looking at
the affidavit she submitted to the Board, testified she
could only recall Filippi stating that Aahle was no
longer employed by the Employer. Then, when asked
whether Filippi used the phrase "troublemaker," she tes-
tified, "ilt was used in reference to Mike Aahle [who]
was a troublemaker and there were other troublemakers
that are so-called backstabbers and if such-and-such
doesn't work out, they will stab you in the back too,"
and on cross-examination she expanded upon this, now
testifying that she was "positive" Filippi said he had ter-
minated Aahle because Aahle was a troublemaker.
Respondent called five witnesses-Sales Manager Fi-
lippi and salespersons Derrick, Gelender, Gibbs, and
Kaleal-who testified about Filippi's statements concern-
ing Aahle. Each specifically denied that Filippi stated
that if Aahle had not voluntarily terminated his employ-
ment Filippi would have terminated him. Filippi testified
that he told the employees about the background leading
up to Aahle's voluntary termination; namely, as de-
scribed above, that the employees who signed the peti-
tion circulated by Aahle failed to support him and that
Aahle quit his employment. Filippi further testified, con-
sistent with the testimony of the General Counsel's wit-
ness Flores, that he warned the employees who were
supporting the Union that in his opinion the same thing
would happen to them as Aahle; that their fellow em-
ployees would not support them but would stab them in
the back. Filippi's testimony was corroborated in signifi-
cant respects by Derrick, Gibbs, Gelender, and Kaleal.
Derrick testified that Filippi stated he hoped the employ-
ees did not leave their fellow employees "hanging high
and dry" like the employees did when Aahle initiated a
petition to change working conditions and testified that
Filippi referred to the employees who deserted Aahle as
"backstabbers." Gibbs testified in substance that Filippi
stated Aahle had organized for the Union, and that the
other salesmen did not support him, which was one of
the reasons why Aahle quit. Gelender testified Filippi
stated that the employees had deserted Aahle and left
him standing alone, and Filippi did not want this to
happen to any of the employees who supported the
Union, but for them to be prepared for this as anything
could happen. Kaleal testified that Filippi stated that
Aahle had submitted a petition to management signed by
a majority of the employees, but some of the employees
who had signed it did not support Aahle.
As described above, Quilice's and Taylor's testimony
about Filippi's remarks concerning Aahle is in sharp con-
flict with Filippi's. It is my opinion, based upon my ob-
servation of the witnesses, that Filippi in testifying about
this particular matter was the more credible witness.
Moreover, his testimony is corroborated by the General
Counsel's witness Flores and in significant respects is
corroborated by Respondent's witnesses Derrick, Ge-
lender, Gibbs, and Kaleal. It is for these reasons that I
shall recommend that this allegation be dismissed.
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Filippi allegedly "stated to [the] assembled employ-
ees that those employees who supported the Union
would be discharged" (complaint, par. 9(c)).
In support of this allegation the General Counsel relies
on the testimony of salespersons Flores and Quilice.
Flores testified that Filippi stated that employees con-
nected with the union movement and who held union
meetings would be "fired on the spot." Flores also testi-
fied that Filippi stated, "[Ilf he found out who the trou-
blemakers were they would be fired." Quilice testified
that Filippi stated that "the troublemakers would be
fired."5 Quilice did not corroborate Flores' testimony in
other respects. Likewise, salespersons Taylor and Kane
and Sales Manager Brum, the General Counsel's other
witnesses, did not corroborate either Quilice's or Flores'
aforesaid testimony. Respondent's witnesses, General
Sales Manager Filippi and salespersons Derrick, Ge-
lender, Gibbs, Kaleal, and Boski, each testified that Fi-
lippi did not state that employees would be discharged
for supporting the Union.
It is my opinion, based upon my observation of the
witnesses, that Filippi and the several witnesses who cor-
roborated him were more credible than either Flores or
Quilice when they testified about the disputed subject
matter. In addition, the testimony of Quilice and Flores
is not mutually corroborative and is not corroborated by
the testimony of the other witnesses called by the Gener-
al Counsel. It is for these reasons that I find that, at the
August 12 meeting, Filippi did not, as alleged in the
complaint, expressly state that "those employees who sup-
ported the Union would be discharged."
Although Filippi, as alleged in the complaint, did not
expressly tell the employees that "those employees who
supported the Union would be discharged," it is undis-
puted that he told the employees that, if they wanted
union representation, they should go to work for an em-
ployer whose employees were represented by a union.
Filippi testified, "I'm sure I said" that "if they [referring
to Respondent's salespersons] wanted a union, they
should go work in a union house." Likewise, Respon-
dent's witness Gelender testified Filippi told the salesper-
sons that "he did not see why if you wanted a union you
did not go to a union store, they were all over the area."
And the General Counsel's witness Taylor testified Fi-
lippi stated that, if the salespersons wanted union repre-
sentation, they "should go [to] some other place where
there was a union."
Based upon the foregoing, I find that Filippi at the
August 12 meeting told the salespersons that, if they sup-
ported representation by the Union, they should go to
work for another employer whose employees were rep-
resented by a union. As I have found previously, this
statement was expressed by Filippi at a meeting where
Filippi had adopted an antagonistic and angry demeanor
toward the salespersons in an effort to dissuade them
from supporting the Union and to impress upon them his
opposition to their supporting the Union. Viewed in this
context, the statement went beyond permissible bounds
and conveyed the threat that management considered en-
" At first Quilice was unable to remember this statement She remem-
bered it after her memory was refreshed by an affidavit she had submit-
ted to the Board.
gaging in union activities and continued employment es-
sentially incompatible. In other words, "this statement is
essentially a thinly-veiled threat to fire [employees] for
[their] union activities and is thus violative of the Act."
N.L.R.B. v. Intertherm, Inc., 596 F.2d 267 (8th Cir.
1979), enfg. 235 NLRB 693 (1978) (statement that if an
employee was not happy with the company he should
take a look elsewhere for a job); N.L.R.B. v. Crystal Tire
Company, 410 F.2d 916, 918 (8th Cir. 1969) (statement
that if employees wanted a union they should work for
another company); see also Padre Dodge, 205 NLRB 252
(1973).
Based upon the foregoing, I find that Respondent vio-
lated Section 8(a)(1) of the Act by suggesting to its em-
ployees that union activity and continued employment
are incompatible.6
3. Filippi allegedly announced and implemented an
overly broad no-solicitation rule prohibiting employees
from discussing the Union at any time or place on Re-
spondent's premises (complaint, par. 9(f)).
In support of this allegation the General Counsel
points to the testimony of salespersons Kane and Flores
that Filippi stated that employees who talked about the
Union would be discharged. L reject this testimony be-
cause neither Kane nor Flores impressed me as a credible
witness when they gave it. Also, their testimony is con-
trary to the testimony of the nine other witnesses who
testified about what took place at this meeting.
My review of the record persuades me that Respon-
dent's assertion advanced in its post-hearing brief that the
overwhelming weight of the record evidence establishes
that Filippi told the employees not to discuss the Union
"on Company time" (br., pp. 53 and 82) is a correct as-
sessment of the record. In this regard the record reveals
the following:
Filippi testified he told the employees not to talk about
the Union "on my time" because he told them he was
paying them for that time and told them they could dis-
cuss the Union during their "off time."
Salesperson Derrick testified Filippi stated not to dis-
cuss the Union "on Company time," but if they wanted
to discuss the Union to do it on their "own time."
Salesperson Gibbs testified Filippi stated he did not
want groups of employees talking about the Union on
"Company time," but they could do this on their "own
time," as Filippi "did not want [the Union] discussed at
the dealership."
Salesperson Kaleal testified Filippi stated he did not
want groups of employees meeting about the Union on
"Company time," but that what they did "after hours
was [their] own business."
Sales Manager Brum testified Filippi stated he did not
want groups of employees discussing the Union, but
4 I am of the view that this unlawful conduct is emcompassed by the
portion of the complaint which alleges that Filippi "stated to the] assem-
bled employees that those employees who supported the Union would be
discharged." In any event, because there is no factual dispute as to this
conduct and because the issue was fully litigated and is intimately related
to the subject matter of the complaint, I shall find and remedy this un-
lawful conduct even though it is not specifically alleged to be an unfair
labor practice, E.g., Monroe Feed Store, 112 NLRB 1336 (1955).
856
ED CHANDLER FORD, INC.
"they could do it on their own time, not to do it on his
time."
Salesperson Quilice testified Filippi stated the employ-
ees were not allowed to discuss the Union "on his time."
Salesperson Boski testified Filippi told the employees
not to discuss the Union during "Company working
hours."
Salesperson Gelender testified Filippi told the employ-
ees he did not want them to meet in groups and discuss
the Union, but were free to do so "after hours."
Based upon the foregoing, I find that at the August 12
meeting Filippi told the salespersons that they could not
talk about the Union during "Company time" or "his
[Filippi's] time." In my view, these terms as Filippi used
them are synonymous. This restriction is patently unlaw-
ful because the terms "Company time" or "Filippi's
time," as used by Filippi, embraces both actual working
time and nonworking time, such as lunch and break peri-
ods. See, e.g., Florida Steel Corporation v. N.L.R.B., 529
F.2d 1225, 1230-31 (5th Cir. 1976); WIPO, Inc., 199
NLRB 649 (1972). It is settled that a rule which prohib-
its employees from talking about the Union during their
nonworking time on company premises, such as lunch
and break periods, is presumptively invalid and may be
saved only by a showing by the employer of special cir-
cumstances which make such a rule necessary to main-
tain plant discipline or production. 7 Republic Aviation
Corporation v. N.L.R.B., 324 U.S. 793 (1945). Here the
record fails to establish that such an impermissibly broad
rule was necessary to maintain plant discipline or pro-
duction. Also, unlike Aircraft Hydro-Forming, Inc., 221
NLRB 581 (1975), cited by Respondent, the record
herein fails to establish that, in the context of this case,
the "Company time" rule was communicated or applied
in such a way as to convey to the employees an intent to
clearly permit union activity on the employees' own time
in nonpublic areas of the dealership.
Based upon the foregoing, I find Respondent violated
Section 8(a)(1) of the Act by announcing and implement-
ing a rule which prohibits employees from engaging in
union activity or otherwise talking about the Union
during nonworking time in nonpublic areas of Respon-
dent's dealership. 8
4. Filippi allegedly stated Respondent "would cancel
certain bonuses paid to the salespersons if the Union
came in" (complaint, par. 9(d)).
7 Although rules which prohibit employee union-related conversation
during "Company time," as the rule herein does, are generally presump-
tively invalid, an exception to this policy is made in the case of retail
stores, which, because of the nature of their business, may prohibit union
solicitation, even during breaks and lunch periods, in areas where cus-
tomers are likely to be present. See Marriott Corporation (Children's Inn),
223 NLRB 978 (1976). However, the instant ban on union-related conver-
sations was not limited to the customer or sales area of the dealership.
Therefore, Reapondent's rule against talking about the Union dunng
"Company time" or "Filippi's time" is overly broad and invalid because
it appears to include within its prohibitions any union activity on the em-
ployees' own time in nonpublic areas of the dealership.
a The fact that prior to August 12 Filippi periodically informed the
employees they could not discuss nonbusiness related matters on "Com-
pany time" or on "his time" is no defense to the violation herein. This
merely establishes that, when Filippi on August 12 announced the limita-
tion against discussing the Union on "Company time." he was not insti-
tuting a rule which discriminated against union activity. However. the
rule itself, as discussed supra, is invalid on its face.
In support of this allegation the General Counsel relies
on the testimony of Sales Manager Brum and salesper-
sons Quilice, Flores, Taylor, and Kane.
Quilice gave different descriptions of Fillippi's remarks
about employees' bonuses. First, she testified that Filippi
said that "if the Union came in, [the employees] would
lose [their] benefits and spiffs."9 Then she testified that
Filippi said that employees who worked in "union
houses" did not receive spiffs. And she later testified that
Filippi "just said that we could lose a lot of the benefits
that we have." On cross-examination Quilice admitted
that she understood from Filippi's words that he was
comparing the benefits of employees employed by auto-
mobile dealerships with union contracts with the benefits
paid employees by Respondent.
Flores testified Filippi stated "[I]f the union did come
in that [Respondent] would save more money-would
make more money, because we could cut off all the
spiffs and cut off the extra little bonuses we have."
Brum testified Filippi stated that with the Union "the
spiffs and that sort of thing could possibly be lost to the
salesmen."
Taylor testified that Filippi's comments about employ-
ees' bonuses were not expressed at the August 12 meet-
ing, but at a later meeting which took place prior to the
September 26 representation election. He testified that at
this meeting Filippi told the employees that if the Union
came in it would not cost the dealership more money be-
cause Respondent would not have to pay the employees
certain benefits they were currently receiving. Taylor
later changed his description of Filippi's remarks, now
testifying that Filippi stated that "some of the things [Re-
spondent] was doing for [the employees] at that time,
would not have to be done under union rules" or that
those things "were not in existence under union con-
tracts."
Kane testified that Filippi's statements about employ-
ees' bonuses were not made at the August 12 meeting but
at a later meeting held on a different date. She also testi-
fied that at this later meeting Filippi stated that Respon-
dent would not grant the employees spiffs if they contin-
ued to discuss the Union or if the Union succeeded in
getting in.
As described above, only three of the five witnesses
whose testimony the General Counsel relies on were able
to remember Filippi's remarks about employees' bonuses
which were expressed at the August 12 meeting. In es-
sence these three-Quilice, Flores, and Brum-testified
that Filippi expressly indicated that if the employees sup-
ported the Union they could lose certain existing bonus
payments. Respondent called six witnesses, Sales Man-
ager Filippi and salespersons Boski, Derrick, Gelender,
Gibbs, and Kaleal, each of whom in substance denied
that Filippi on August 12 expressly threatened to cancel
the employees' bonus payments. It is my opinion, based
upon my observation of the witnesses when they testified
about the August 12 meeting, that the several witnesses
called by Respondent were more credible than either
9 The term "spiffs" refers to the several bonuses Respondent pays its
salespersons for selling certain extra items, such as undercoating or a bur-
gular alarm
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quilice, Flores, or Brum. Moreover, Quilice gave con-
flicting testimony, and the testimony of Quilice, Flores,
and Brum was not mutually corroborative. It is for this
reason that I am of the opinion that in order to deter-
mine what Filippi stated to the employees on August 12
about bonuses it is necessary to examine the testimony of
Respondent's witnesses.
Filippi testified that he described the various benefits
of employment, including the employees' bonuses, which
the employees received from Respondent and told the
employees that he knew of no contract which the Union
had with a dealership which included bonuses and that,
in comparison with the benefits provided by a union con-
tract, Respondent offered the employees the "better
deal."
Boski testified Filippi stated, "[I]f we get a union plan
[referring to a union contract] in here, it's going to prob-
ably be different from what we got" or "are working
under at the present time." Also, Filippi stated "that
some of the pay plans and the benefits might change
under the Union plan [referring to a union contract]."
Derrick testified that Filippi described the various em-
ployment benefits currently being received by the sales-
persons, i.e., retirement benefits, bonuses, etc., and stated
they were superior to the benefits received by employees
who worked under a union contract. Derrick further tes-
tified that Filippi also said that with a union the employ-
ees' existing benefits of employment "would have to be
negotiated" and that "it would not cost [Respondent] as
much money if the Union was in here because [Respon-
dent], in fact, was paying better benefits than existed
under any union contract."
Gelender testified that Filippi described the employees'
existing employment benefits, compared them with those
granted employees who worked under a union contract,
and told the employees that, "should the Union come in,
all of our existing benefits would be up for negotiations."
Gibbs testified Filippi compared the employment bene-
fits enjoyed by employees who worked under the
Union's standard collective-bargaining contract with
those enjoyed by Respondent's salespersons and pointed
out that the employment benefits enjoyed by Respon-
dent's salespersons were superior to those enjoyed by the
employees who worked under the Union's contract. On
the subject of bonuses, sometimes called spiffs, Gibbs tes-
tified, that Filippi stated that "the standard union con-
tract did not basically offer that type of a program [re-
ferring to spiffs], and [Respondent] would not necessarily
have to pay [spiffs]" and that "it would cost [Respon-
dent] less money if the Union was in [the dealership]."
Kaleal testified that Filippi described the employment
benefits enjoyed by salespersons employed by Respon-
dent and compared them with those enjoyed by salesper-
sons who worked under a union contract.
Although the recollection of the several witnesses
called by Respondent is not precisely the same, each wit-
ness impressed me as reliable and trustworthy when testi-
fying about Filippi's August 12 remarks pertaining to em-
ployees' employment benefits, and I am of the view that
a composite of their above-described testimony provides
an accurate description of Filippi's August 12 statements
about the employees' bonuses.' 0 A composite of their
testimony establishes that on August 12 Filippi told the
salespersons that, if the Union succeeded in organizing
them, all of their existing employment benefits would be
negotiable and that the negotiations would probably
result in the loss of their bonuses because the Union's
collective-bargaining contract with other dealerships did
not include a provision providing for bonus payments.
In view of Filippi's aforesaid statements, the question
presented for decision is whether Filippi's statements
were privileged under Section 8(c) of the Act as a non-
coercive prediction of the consequences of unionization
or whether the statement was reasonably calculated to be
taken by the employees as a threatened loss of bonus
benefits to be enacted unilaterally by Respondent as a re-
prisal for the employees having supported the Union.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
618 (1969), the Supreme Court stated:
[An employer's prediction about the consequences
of unionization] must be carefully phrased on the
basis of objective fact to convey an employer's
belief as to demonstrably probable consequences
beyond his control . . . in case of unionization.
In the instant case the Union had given no indication
that if it obtained bargaining rights it would propose that
Respondent cease paying bonuses to its employees. Nor
does the record otherwise establish that Filippi had any
way of knowing what demands the Union might make
concerning bonus payments. Respondent presented no
evidence that dealerships with union contracts did not
pay their salespersons bonuses similar to Respondent's or
that the union contracts precluded the payment of such
bonuses. Under these circumstances, Filippi's statement
that collective bargaining would probably result in the
loss of the employees' bonuses was not based on "objec-
tive fact . . . as to demonstrably probable conse-
quences"; accordingly, Respondent violated Section
8(a)(1) of the Act.
In concluding that Filippi's statement violated Section
8(a)(l), I have considered Stumpf Motor Company, Inc., l
cited by Respondent, where the Board, Member Fanning
dissenting, held it was not illegal for an employer to
warn his employees that collective bargaining would
probably result in the loss of existing benefits of employ-
ment, and where the employer prefaced this warning
with the further statement that all benefits would be ne-
gotiable if the union organized the employees. I do not
believe that Stumpf Motor Company governs the disposi-
tion of the instant situation. In Stumpf Motor Company
the employer's remarks were expressed in a noncoercive
setting so that the employees to whom they were ad-
dressed could reasonably interpret them as indicating
nothing more than the employer's description of the col-
'O The aforesaid testimony of the witnesses called by Respondent is
not inconsistent, except in the case of Filippi's denial that he stated that
the employees' existing benefits would have to be negotiated if the Union
were successful. His testimony in this respect is contrary to the testimony
of Derrick and Gelender, who impressed me as the more reliable wit-
nesses on this point.
" 208 NLRB 431 (1974).
858
ED CHANDLER FORD. INC.
lective-bargaining process whereby existing benefits may
be traded away for others. In the instant case Filippi's
statement was communicated to the employees in the
context of a meeting at which Filippi had adopted an an-
tagonistic and angry demeanor toward the employees so
as to impress upon them his extreme opposition to union
representation and, in violation of the Act, conveyed the
threat that management considered engaging in union ac-
tivities and continued employment as incompatible. Also,
Filippi illegally limited the employees' right to engage in
union activity on Respondent's premises. In this context
Filippi's statement that collective bargaining could result
in the employees losing their bonuses was reasonably cal-
culated to have been understood by the employees as a
threatened loss of employment benefits to be enacted uni-
laterally by Respondent as a reprisal for the employees
having supported the Union. Therefore, I find that, in
violation of Section 8(a)(1) of the Act, Filippi on August
12 threatened employees that Respondent would cancel
their bonuses if they supported the Union.
D. The Quota System
"In mid- to late August 1978 . . . Fillippi . . . an-
nounced Respondent's intention to implement a 10-car-
per-month production quota for employees in order to
discourage the support of the union" (complaint, par.
9(g)).
Contrary to this allegation, the record overwhelmingly
establishes that prior to the Union's organizational cam-
paign Filippi frequently advised the salespersons person-
ally and at sales meetings that Respondent expected them
to sell at least 10 motor vehicles a month, which was the
average number of vehicles sold by salespersons em-
ployed by Ford Motor's dealerships located in Respon-
dent's geographical area. I reject the testimony of sales-
persons Kane, Quilice, and Taylor that it was only after
the Union's campaign that Filippi threatened the sales-
persons with discharge if they failed to sell 10 motor ve-
hicles a month. Filippi credibly testified that he ex-
pressed this threat at sales meetings prior to the union
campaign in an effort to motivate the salespersons to sell
more automobiles. Neither Kane, Quilice, nor Taylor
was a credible witness. In terms of demeanor they were
not impressive when they testified about this allegation.
Also, Kane's and Taylor's testimony, in certain signifi-
cant respects, is contrary to the record as a whole. 12
And Quilice's testimony, when viewed in its entirety, es-
sentially corroborates Filippi's testimony that, at sales
meetings prior to the Union's organizational campaign,
Filippi stated that Respondent expected its salespersons
to sell 10 cars a month or be terminated. 3
12 Kane's testimony, that before the union campaign Filippi did not
threaten to discharge salespersons if they did not increase their produc-
tion, is contrary to the testimony of the General Counsel's other wit-
nesses, and Kane's and Taylor's testimony, that the salespersons were
never previously advised by management that they were expected to sell
10 cars a month, is contrary to the testimony of the General Counsel's
witness Quilice and Respondent's witnesses Derrick, Gibbs. Kaleal, Ge-
lender, Filippi, and Ed Chandler.
13 Quilice admitted that at sales meetings prior to the union campaign
Filippi consistently stated he wanted the salespersons to sell 10 cars a
month and at the same time also stated that salespersons would be fired if
they did not increase their production.
Based upon the foregoing, I shall recommend that this
allegation be dismissed.
E. The Profit-Sharing Plan
"In late August or early to mid-September 1978 . . .
Filippi . . . announced and implemented an employee
profit-sharing plan in order to discourage employee sup-
port of the Union" (complaint, par. 9(h)).
The evidence pertinent to this allegation follows. In
July 1975, Respondent commenced to operate the dealer-
ship in partnership with the Ford Motor Company. It
was understood that Respondent would eventually pur-
chase Ford's ownership interest. It was the intent of Ed
Chandler, Respondent's president, to institute a profit-
sharing program for his employees as soon as Respon-
dent purchased Ford's ownership interest. On or about
May 31, 1978, Respondent purchased Ford's ownership
interest. Previously, at sales meetings, Respondent's man-
agement told the employees that, when Respondent pur-
chased Ford's interest and became the sole owner, Re-
spondent would institute an employee profit-sharing plan.
Also during this period, new employees during their em-
ployment interviews were informed by management that
one of the employment benefits Respondent offered to its
employees was an employees' profit-sharing program
which was to be instituted in the future. In summation,
the record establishes that prior to the union campaign
Respondent had decided to institute a profit-sharing plan
for its employees as soon as it purchased Ford's owner-
ship interest, that Respondent notified its employees of
this decision, and that the employees, as employee Kaleal
testified, "were just waiting for [Respondent} to buy out
[Ford] and to implement the profit sharing program."
In June 1978, soon after Respondent purchased Ford's
ownership interest and became sole owner of the dealer-
ship, Respondent's president, Ed Chandler, as he had
promised the employees, took steps to institute a profit-
sharing program. He compared and evaluated several
different profit-sharing programs and in June arranged to
meet on August 25 with Bob Ewings of the National
Automobile Dealers Association to discuss the profit-
sharing plan sponsored by that organization. 4 Chandler
met with Ewings as scheduled on August 25, at which
time Chandler and his accountants evaluated Ewings'
profit-sharing plan and decided to purchase this plan.
The profit-sharing plan was not implemented until Janu-
ary 1979 inasmuch as prior to its implementation Internal
Revenue Service approval was necessary.
The sole evidence that representatives of Respondent
spoke to the employees about the profit-sharing plan
during the Union's organizational campaign is as follows.
Quilice, the General Counsel's witness, testified that, at
a meeting held between August 12 and the date of the
September 26 representation election, Filippi told the
salespersons that Chandler "for quite some time" had
been working on a profit-sharing plan and "it was all
done." Quilice did not place this statement in any kind of
a context.
14 Ewings, whose office is located in Washington. DC, was not
scheduled to visit California until August 1978
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor, the General Counsel's witness, testified that
either before or after the September 26 representation
election Filippi told the salespersons that "there has been
some general talk about profit sharing and we are work-
ing on that, but we cannot discuss it at this time." Taylor
did not place this statement in any kind of a context.
Derrick, Respondent's witness, testified that, during the
Union's organizational campaign, Filippi stated Respon-
dent had purchased Ford's ownership interest and was
all set to implement the employees' profit-sharing pro-
gram. Derrick did not place this statement in any kind of
a context, nor did he say whether Filippi spoke to him
personally or at a meeting.
Kaleal, Respondent's witness, testified that at the
August 12 meeting Filippi "mentioned the profit sharing
program as one of the things that [Respondent] offers
[its] salespersons" and told the employees that Respon-
dent was in the process of implementing it. 15
Based upon the foregoing, I find that Respondent,
prior to the Union's organizational campaign, decided to
institute a profit-sharing program for its employees and,
prior to the Union's campaign, communicated this deci-
sion to its employees and that thereafter during the
normal course of business implemented this decision by
instituting a profit-sharing program for its employees.
Given these circumstances, I am of the opinion that Re-
spondent's remarks expressed during the Union's cam-
paign, that Respondent was in the process of instituting
the profit-sharing plan which it had previously promised
the employees, do not constitute an unfair labor practice.
Therefore, I shall recommend that this allegation be dis-
missed.
F. The Voter Eligibility List
"Respondent by its agents willfully placed ineligible
employees on the voter eligibility list in order to defeat
the union in the board conducted election" (Complaint,
par. 9(i)).
I. The evidence 6
On August 30 at or about 4 p.m., Sales Manager
Lanny Brum interviewed job applicant Randal Lane.
The interview, which lasted for approximately 1 hour,
was mainly devoted to a discussion of Lane's sales expe-
rience. During the interview Lane asked whether Re-
spondent operated as a "union house." Brum answered
"no," but advised Lane that the Union had filed a peti-
tion with the Board for a representation election. Lane
indicated he would not work for a "union house." Brum
stated he doubted whether the Union would be voted in.
Previously, on August 30, Lane had completed an em-
ployment application and submitted it to Brum. In the
' The complaint does not allege that Filippi's announcement of the
profit-sharing plan was made at the August 12 meeting; rather, it alleges
that Filippi spoke about this subject "in late August or early to mid-Sep-
tember." Of the II witnesses who testified about the August 12 meeting,
only Kaleal testified that Filippi brought up the subject of profit sharing
at that meeting. Under the circumstances, I am persuaded that Kaleal was
mistaken when he placed Filippi's remarks about profit sharing as having
been expressed at the August 12 meeting.
i' The only witness to testify concerning this allegation was Sales
Manager Lanny Brum His testimony is uncontradicted.
part of the application which asked, "[I]f hired, on what
date will you be available to start work?" Lane wrote,
"September 1, 1978." Likewise, when Brum during the
interview asked when Lane could start work, Lane an-
swered he could not start work until September 1,
1978.17 At the conclusion of the interview Brum wrote
on Lane's employment application that he thought Lane
was "acceptable for employment" and wrote the follow-
ing evaluation: "[Lane] presents self well-knowledge-
able in all areas of sales & lease. Good experience-atti-
tude good-should be good, aggressive addition to sales
staff."
Later, on August 30, Brum gave Lane's employment
application to General Sales Manager Viglione and ad-
vised Viglione about Lane's sales experience and that
Lane had stated he did not want to work for a "union
house."
On August 31, representatives of Respondent and the
Union signed an election agreement in Case 32-RC-446
which on September I was approved by the Board's Re-
gional Director for Region 32. The agreement provided
that on September 26 a representation election would be
conducted by the Board in a unit comprised of all of Re-
spondent's salespersons. It also stated at paragraph 10
that the payroll period for voting eligibility was the pay-
roll period ending August 31 and further stated at para-
graph 2 that "the eligible voters shall be those employees
included within the unit . . who were employed during
the [aforesaid] payroll period."
On August 31, Viglione instructed Brum to hire Lane.
He told Brum to telephone Lane and have him come to
the dealership and sign the necessary papers. The same
day at or about noontime, Brum telephoned Lane and
advised him that he had a job with Respondent and
asked him to come to the dealership that day to fill out
the necessary papers and to pick up his demonstrator 8
and to start work. Lane stated he was unable to start
work until September 1. Brum stated that the eligibility
date for voting in the union election had been established
and that it was August 31. Lane stated he wanted to be
eligible to vote, so he would come to the dealership to
fill out the paperwork associated with his employment,
but could not come until later that afternoon or early
that evening as he was in the process of moving his per-
sonal belongings into a new home. At the conclusion of
this telephone conversation Brum took Lane's employ-
ment application and in the section reserved for manage-
ment's comments, in the space entitled "starting date,"
Brum wrote "9/1/78."
On August 31, after his telephone conversation with
Lane, Brum told Viglione that Lane was not able to start
'7 I have considered that, in the affidavit which he furnished the
Board, Brum stated that on August 30 Lane indicated that in order to
vote against the Union he would start work immediately. Brum testified
that the affidavit in this respect was not correct and that Lane in fact
stated he could not start work until September I. In disclaiming the de-
scription set forth in his affidavit, Brum impressed me as a credible wit-
ness. Moreover, his testimony is corroborated by the act that on August
30, when Lane completed his application for employment, Lane wrote
that he was not available to start work until September .
x Each salesperson employed by Respondent is furnished with an
automobile for his personal use, referred to as a demonstrator
860
ED CHANDLER FORD, INC.
work until September , but would come to the dealer-
ship later that day to sign the necessary papers associated
with his employment; whereupon Brum and Viglione
agreed that Brum would indicate in Respondent's per-
sonnel records that Lane started work August 31 and
also agreed that Respondent would pay Lane for August
31 to show that he was employed on that date and that
they would engage in this conduct in order that Lane
would be eligible to vote in the scheduled representation
election, as Respondent wanted his "no vote." Accord-
ingly, Drum changed that part of Lane's employment ap-
plication where Brum had earlier indicated that Lane's
"starting date" was "9/1/78" to read "8/31/78." Also,
Brum thereafter changed the "employment date" of "9/
1/78" he had written in Lane's "confidential employee
history" record maintained by Respondent to read "8/
31/78."
On August 31, Lane visited the dealership at 6 p.m., at
which time he filled out his employment papers and was
assigned a demonstrator automobile for his personal use,
but did not perform any work that day.19 He simply did
the paperwork and left. He started work the next day.
Respondent's payroll period ended August 31 and the
record reflects that Respondent issued a payroll check to
Lane dated August 31 for the sum of $26.54. As indicat-
ed, supra, Lane performed no work for Respondent
during that payroll period. Respondent presented no tes-
timony to explain the reason for the issuance of this
check.
By letter to the Board's Regional Office dated Septem-
ber 8, Respondent included Lane's name among the
names of employees eligible to vote in the representation
election scheduled for September 26.
2. Conclusions
It is settled that, in order to be eligible to vote in a
representation election, an employee must have worked
in the designated bargaining unit on the established eligi-
bility date and on the date of the election. N.L.R.B. v.
Family Heritage Home-Beaver Dam, Inc., 491 F.2d 347,
349 (7th Cir. 1973); N.L.RB. v. Adrian Belt Company,
578 F.2d 1304 (9th Cir. 1978); Ra-Rich Manufacturing
Corporation, 120 NLRB 1444, 1447 (1958). In determin-
ing eligibility, the Board looks first to see if the employ-
ee in question was actually working in the bargaining
unit on the eligibility date. Physical presence on the eli-
gibility date is not necessarily required, however, as the
Board will allow employees to vote who have already
worked in the unit but who are absent on the eligibility
date for a reason consistent with their continued employ-
ment, such as illness, vacation, or temporary layoff. See
Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973).
On the other hand, employees who were hired prior to
the eligibility date, but did not begin work until after
that date, are deemed ineligible to vote. N.L.R.B. v.
Family Heritage House. Inc., supra at 349-350; N.L.R.B.
v. Dalton Sheet Metal Co., Inc., 472 F.2d 257, 258 (5th
Cir. 1973); Ra-Rich Manufacturing Co., supra at 1447.20
19 On August 31 the dealership remained open until approximately
p.m.
20 The purpose of this rule is to make the identity of eligible oters
quickly and easily ascertainable While the Board recognizes that newly
Applying these principles, it is plain that employee
Lane was not eligible to vote in the scheduled represen-
tation election. The election agreement entered into by
Respondent stated that eligible voters were those em-
ployees who "were employed" during the payroll period
ending August 31. Lane was hired August 31 but did not
start his employment until September 1.2 However, the
question presented for decision is not whether Lane was
an eligible voter but is whether, when Respondent in-
cluded his name on the voter eligibility list, it knew he
was ineligible to vote yet deliberately placed his name on
the eligibility list because it believed he would cast a
ballot against union representation.2 2 I think this is such
a case. Lane did not start his employment until Septem-
ber 1, yet, as described in detail supra, Respondent falsi-
fied Lane's personnel records to show that he started
work August 31 rather than September I and issued him
a paycheck for August 31, even though he performed no
work that day. These circumstances, when viewed in the
context of Respondent's hostility toward union represen-
tation, its knowledge that Lane intended to vote against
union representation, and the evidence which indicates
that Respondent falsified Lane's personnel records to
take advantage of his "no vote," persuade me that, as al-
leged in the amended complaint, Respondent willfully
placed the name of Lane, who was not eligible to vote,
on the voter eligibility list furnished the Board in order
to defeat the Union in the representation election sched-
uled to be conducted by the Board in Case 32-RC-446. I
further find that by engaging in this conduct Respondent
violated Section 8(a)(l) of the Act.
hired employees, such as Lane, have a true and vital interest in the out-
come of a representation election, "it is incumbent upon the Board to es-
tablish certain rules for the orderly conduct of its elections and insure a
certain degree of stability in the election process." Roy Lotspeich Publish-
ing Co.. supra at 517 Thus, although the Board's application of the eligi-
bility date rule may prevent employees from voting who have a true in-
terest in the outcome of a representation election, this result is
outweighed by the necessity of fair and consistent rules for the orderly
conduct of elections. See Cone Brothers Contracting Company v.
N.L.R.B., 235 F 2d 37, 40 (5th Cir. 1956), cer. denied 352 U S. 916,
citing N.L.R.B. v A. J To~*r Company, 329 U.S 324, 330-331 (1946).
21 The record, as described supra, overwhelmingly establishes that
Lane at the time of his August 30 employment interview and on August
31, the date he was hired, informed Respondent that he could not start
work until September I and in fact did not start work until September I
The only evidence presented by Respondent that Lane started work
August 31 is the check for $26.54 issued to Lane dated August 31 Re-
spondent failed to offer any explanation for this check and, as described
supra, the August 31 conversation between Sales Managers Brum and
Viglione reveals that the check was issued as part of a scheme to make it
seem as if Lane had worked on August 31 so that he would be eligible to
vote in the election.
22 I reject the General Counsel's further contention that the record
shows that this is a situation where an employer has hired an employee
because it thinks the employee will vote against union representation in a
scheduled Board election Ilere the evidence is insufficient to provse that
on August 31. during the normal course of business, Respondent would
lot hase hired l.ane for legitimate business reasons
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Alleged Discharge of Flores Because of His
Union Activities
1. The evidence
a. Flores' union activities
On August I , Flores signed a union authorization
card and solicited another employee to sign a card. This
is the extent of his union activities. Flores did not speak
with anyone from management about his union senti-
ments or activities.
Lanny Brum, Respondent's former sales manager, tes-
tified for the General Counsel that Respondent's manage-
ment thought Flores favored union representation and
was a union organizer. Specifically, Brum testified that
after August 11, the date the Union filed its representa-
tion petition, Brum and Respondent's president, Ed
Chandler, and General Sales Managers Filippi and Vig-
lione on several occasions took a roster of Respondent's
salespersons and indicated which ones they thought were
for and against union representation. Brum also testified
that Chandler, Filippi, Viglione, and himself all stated
that they thought Flores was one of those salespersons
who would vote for the Union and that President Chan-
dler indicated he thought Flores was one of the Union's
organizers. Brum, Filippi, and Viglione told Chandler
that they thought he was correct in thinking that Flores
was a union organizer. 2 3 In presenting the aforesaid tes-
timony Brum impressed me as a sincere and reliable wit-
ness.
Chandler, Viglione, and Filippi testified for Respon-
dent. Chandler, however, did not deny Brum's testimony.
Viglione testified that Brum, Filippi, and himself on sev-
eral occasions discussed the union sentiments of the sales-
persons. He testified that "it was more like a guessing
game, who was pro and con." He did not deny that
Chandler, Brum, Filippi, and himself expressed the belief
at these discussions that Flores was prounion, nor did he
deny that they agreed that Flores was one of the Union's
organizers. Viglione's further testimony, that he paid
"very little attention" to what was said about the union
sentiments of the various employees at these discussions
because he did not care who was for or against union
representation, was not given in a convincing manner
and does not ring true in view of Respondent's strong
feelings against union representation which it expressed
to its employees. Filippi testified that "during the month
or two before the Union election" Filippi, Chandler,
Brum, and Viglione, on two or three occasions, dis-
cussed the union sentiments of Respondent's salespersons
and discussed who were the Union's organizers. He fur-
ther testified that at these discussions they used a roster
of the salespersons employed by Respondent and dis-
cussed which salespersons they thought were for and
against the Union. When asked whether Flores was
named as being prounion, Filippi testified, "I don't re-
member but we might have. I don't remember which
side [Flores] was on. I don't think [Flores] had very
much interest in it." This equivocal answer was not
23 Brum testified that management also unanimously agreed that sales-
persons Quilice and Vojir were the other union organizers.
given in a persuasive manner. Nor did Filippi impress me
in bearing and demeanor when he further testified that
he was not able to "remember anybody ever saying [at
the aforesaid management discussions] that they really
thought [Flores] was like a big ring leader."
As I have indicated supra, Brum, when he testified
that the several members of management stated they
thought Flores was a union sympathizer and a union or-
ganizer, impressed me as a credible witness,2 4 whereas
Viglione and Filippi did not appear to be credible wit-
nessses when they testified concerning this subject
matter. Also, for some unexplained reason, Respondent
did not question President Chandler about this subject.
Therefore, I find that when Respondent discharged
Flores it thought he would vote in favor of union repre-
sentation and was a union organizer. 2 5
b. Flores' discharge
Flores was employed as a salesperson by Respondent
for 20 months, from December 30, 1976, until his August
31, 1978, discharge. General Sales Managers Filippi and
Viglione were his supervisors. During Flores' first 17
months of employment they regarded him as an out-
standing salesperson. In 1977 he was Respondent's top
producer for 2 months. 2 6 And during the first 5 months
of 1978, aside from February when he was one of the
dealership's lowest producers, Flores, among comparable
salespersons, was one of Respondent's top producers: 2 7
First in March, second in April and May, and fourth in
January.
In approximately May, Flores purchased a tow truck
business and personally operated it himself. He wore a
"beeper" device at work which would "beep" whenever
his answering service had a message for him concerning
24 In crediting rum's testimony. I have considered that Respondent
discharged him before he furnished the Government with an affidavit in
this case. Also I have considered that I did not find he was a credible
witness in connection with the August 12 meeting. Nonetheless, am
convinced, based on my observation of the witnesses, that in this instance
he was a more credible witness than either Filippi or Viglione.
25 I reject Respondent's contention that management's discussions,
where Respondent concluded that Flores was prounion, were held after
Flores' discharge. The entire tenor of the testimony of Brum, Viglione,
and Filippi was that during these discussions management was using a
roster of salespersons. It seems unlikely that Flores' name would have
been included on such a roster after his discharge. Moreover, after
Flores' discharge, it made little sense for management to discuss Flores'
union sentiments or whether he would vote for the Union. In this regard,
I note that there is no evidence that Respondent was placed on notice
that the Union would contend that Flores was eligible to vote in the Sep-
tember 26 election until September 25, when Respondent by registered
mail received a copy of the charge filed in Case 32-CA-1244 which al-
leged that Flores' discharge was illegally motivated.
26 The salespersons are paid a commission for each motor vehicle sold.
The commission is a certain percentage of the employer's profit on each
sale. Respondent determines its salespersons' productivity by using their
monthly gross earnings which are referred to in the record as the sales-
persons' "monthly gross income."
27 In comparing Flores' productivity with the productivity of other
salespersons, I have used G.C Exh. 6, but excluded part-time salesper-
sons Acree and Kim Choi; fleet salespersons Medeiros and Vieira, who
normally earn less than Flores due to the nature of their work; truck
salespersons Steve Chandler, Sam Choi, and Purdy, who normally earn
more than Flores due to the nature of their work: and salespersons Ro-
driguez and Steinberg, who normally earn more than Flores due to the
nature of their work.
862
El) CHANDLER FORD, INC.
his tow truck business. In June, July, and August, Flores'
productivity dropped drastically. During this period,
among the 19 comparable salespersons employed by Re-
spondent, only three, Wemhaner, Kane, and Maresca,
had worse sales records, and Kane and Maresca were in-
experienced, as they were hired in May.
When Respondent discovered Flores was operating a
tow truck business, President Chandler and General
Sales Manager Filippi were skeptical that Flores would
be able to operate the tow truck business and at the same
time be a productive salesperson. In May they expressed
their doubts to Flores, who indicated that he did not
intend to operate the tow truck business himself but had
hired another person to do this. However, Flores contin-
ued to wear the "beeper" device at work and in early
July Filippi and Chandler spoke to him again about this
matter. Chandler specifically told Flores that he thought
the tow truck business was interfering with his produc-
tion. Flores replied that the person who had been operat-
ing the tow truck business had quit but Flores intended
to remedy the situation immediately or sell the business.
Flores continued to wear the "beeper" for the remainder
of his employment.2 8
In June and July, Filippi once or twice criticized
Flores for not returning to the dealership after lunch.
Flores, after notifying Filippi he was leaving the dealer-
ship to have lunch with a customer, never returned, and
once advised Filippi he was unable to return to work be-
cause he had too much to drink. And, on August 15,
when Filippi gave Flores his monthly "draw" check, Fi-
lippi complained that Flores had sold very few auto-
mobiles in July and that his August record was not any
better and warned Flores that, if he did not make a 100
percent "turnaround," he would be terminated. Flores
replied that he would do what he could. 2 9
Early in July, Viglione told Flores that he thought
Flores' tow truck business had affected his sales which
had dropped almost 50 percent, and also complained that
Flores was leaving the premises during working time to
visit the Pepper Tree Bar without permission. Flores
stated that his reason for visiting the Pepper Tree during
working time was that he was doing business with cus-
tomers. Viglione told Flores that, if this were true, it was
2s There is a conflict between Flores' testimony and Chandler's and
Filippi's concerning their conversations about Flores' tow truck business
and the "beeper" device. I have credited Chandler's and Filippi's testimo-
ny because they impressed me as more credible witnesses. Likewise, I
credit their testimony that Flores continued to wear the "beeper" for the
remainder of his employment.
29 Early in August Flores was absent from work for se'eral consecu-
tive days. supposedly due to sickness In evaluating Flores' production.
Filippi testified he did not take this absence into account as a mitigating
factor because he did not believe Flores was sick. The record establishes
that, on the first day Flores was absent, he phoned the dealership and
told the telephone operator to tell management he as sick Flores did
not indicate he would be absent for more than that day, yet failed to tele-
phone the dealership thereafter to notify management that he was still
sick. Filippi on several occasions during Flores' absence phoned Flores'
home to determine why he was absent, but no one answered the phone.
When Flores returned to work, Filippi confronted Flores with the fact
that he was not home when Filippi telephoned Flores replied that "per-
haps" he was visiting the doctor's office. Under the circumstances in-
cluding the fact that Filippi knew that Flores was operating his own busi-
ness, it was not unreasonable for Filippi to disbelieve Flores' story that
he was sick, but instead to believe that Flores was really "skylarking."
and that he was operating his on business
all right, but he did not believe Flores, as he thought
Flores did not care about selling cars but was just using
the dealership as a place from which to operate his tow
truck business.3 0 Thereafter, early in August, prior to
the Union's organizational campaign, Viglione again
criticized Flores on account of his production. He
warned Flores that he would have to terminate him if his
production did not improve. And on August 15 Viglione
again criticized Flores for his poor production and also
expressed displeasure that Flores had left the dealership
for several hours without checking first with Viglione.
Flores stated he was absent because he was selling auto-
mobiles. Viglione stated he did not believe him because
his sales record belied his story. Viglione warned Flores
that if his sales record did not improve he would have to
terminate him."
On or about August 29, Filippi and Viglione discussed
Flores' employment status and decided that he should be
terminated August 31, which was the end of the payroll
period. On August 31, when Viglione handed Flores his
paycheck, he told him that he was terminated because of
a "lack of production." When Flores protested that this
could not be true since he had earned more money in the
8 months he had worked in 1978 than he had earned in
1977,32 Viglione replied, "[T]his is all I can say."
The decision to discharge Flores was jointly reached
by Filippi and Viglione. Although they testified that they
were critical of Flores because of his seeming disinterest
in his work, his absences from the dealership during
working hours, and his operation of the tow truck com-
pany, they testified that, but for Flores' poor production
during June, July, and August, he would not have been
discharged despite their other criticisms of him. This tes-
timony is corroborated by the fact that, on August 31,
Viglione did not give Flores any reason for his discharge
other than a lack of production, even though Flores ve-
hemently protested the accuracy of this reason.
2. Conclusions
The record establishes that Respondent has a difficult
time hiring good salespersons and that until June 1978
Respondent had regarded Flores, who had been in its
employ for 17 months, as an outstanding salesperson;
that Respondent, which was extremely hostile about
union representation, thought Flores was one of the
Union's organizers; and that Respondent, shortly after
the Union had petitioned for an election, discharged
Flores for poor production, even though Flores was well
on his way to bettering his 1977 sales record which was
:'o The record establishes that salespersons spend a substantial part of
their working time away from the dealership talking to customers in res-
taurants, bars, etc
:' There is a sharp conflict about whether Filippl and Viglione ever
spoke critically to Flores about his production or work performance
Flores generally denied this, whereas Viglione and Filippi testified in
detail about several conversations they had with Flores in which, as de-
scribed supra, they were critical of his production and work performance.
I have credited their testimony because they impressed me as more credi-
ble , ittnesses. In addition, I reject Flores' testimony that in July 1978,
during the period his production had plummeted. Vighione complimented
him for doing a good job.
:' I'his a., riot rue
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better than satisfactory3 3 and in the 8 months of his em-
ployment in 1978 had compiled a better sales record than
all but 3 of the 14 salespersons who worked during the
same period of time doing comparable saleswork. 3 4
These circumstances, taken together, establish a prima
facie case that Respondent discharged Flores because it
thought he was a union organizer.
Although the General Counsel has proven a prima
facie case, I am persuaded that Respondent met its
burden of going forward with sufficient evidence to
rebut the General Counsel's case and establish that
Flores' discharge was motivated by legitimate business
considerations. The record establishes that, prior to the
Union's organizational campaign, Flores went into a tow
truck business and personally operated this business. Re-
spondent's representatives immediately expressed their
concern to Flores that the tow truck business would in-
terfere with his saleswork for Respondent. Their fears
proved to be valid because Flores' sales production in
June dropped precipitously, when compared to the pre-
vious 3 months, and dropped even further in July.
During this period Respondent's representatives again
spoke to Flores about his work, stating that Respondent
thought Flores was spending his working hours operat-
ing his tow truck business, which had resulted in a dras-
tic drop in his production, and General Sales Manager
Viglione expressly threatened to discharge Flores if his
production did not improve. All of the aforesaid events
took place prior to the Union's organizational campaign.
In other words, prior to the Union's organizational cam-
paign, Respondent had expressed its concern about
Flores' production and had attributed the drastic drop in
his production to the fact that he was operating a tow
truck business which was interfering with his saleswork
and threatened to discharge him if his sales production
did not improve. Nonetheless, Flores continued to wear
the "beeper" at work, thus indicating to Respondent he
was still actively engaged in operating the tow truck
business and, in August, his sales production declined for
the third straight month.35 At this point Respondent dis-
charged Flores. Considering these circumstances, I am
not persuaded that the General Counsel has established
by a preponderance of the evidence that Flores' drop in
production during the period from June through August
33 In 1977, Flores' gross income was approximately S22,0X) whereas,
in 1978 at the time of his discharge, after 8 months of employment, his
gross income was $19,652.
3' Based on the gross income of those salespersons listed in G C. Exh.
6 who received paychecks in each of the first months of 1978, exclud-
ing those whom the record established did not perform saleswork compa-
rable to Flores; i.e., the nature of the work enabled them to earn more or
made it difficult for them to earn as much money as Flores or they
worked part time.
35 Although the record shows that the monthly gross income of the
salespersons fluctuates, it is very rare for a salesperson with Flores' expe-
rience to have such a precipitous and continuous drop in earnings over a
period of 3 consecutive months. This circumstance lends credence to Re-
spondent's belief that the decline in Flores' production was not simply
fortuitous but was related to his operation of the tow truck business. I
also note that, although Flores was absent from work for several days in
August, Respondent, as described supra, reasonably believed that his ab-
sence was not a bona fide one, but was caused by his operation of the
tow truck company.
was used by Respondent as a pretext to discharge Flores
because Respondent thought he was a union organizer 3s
Based upon the foregoing, I shall recommend that the
allegation concerning Flores' discharge be dismissed in
its entirety.
H. The Alleged Refusal To Bargain
Respondent admits that, as alleged in the complaint,
"all salespersons employed by Respondent excluding all
other employees" constitutes a bargaining unit appropri-
ate for purposes of collective bargaining and that on
August 11 and at all times thereafter Respondent has re-
fused the Union's request that it bargain collectively with
the Union as the salespersons' collective-bargaining rep-
resentative.
The General Counsel contends that on August 11, the
date Respondent received the Union's bargaining
demand and refused to bargain with the Union, there
were 33 employees in the appropriate unit, of whom 18
had signed union authorization cards. Respondent does
not dispute that the 33 employees named by the General
Counsel were employed in the appropriate unit on
August I 11 or that 18 of them, as contended by the Gen-
eral Counsel, had signed union cards. Respondent takes
the position that employees Acree, Choi (Kim), Duarte,
Greene, and Scott, who were not listed by the General
Counsel as being in the appropriate unit, were also em-
ployed in the unit on August 11, and that, of the 18 em-
ployees who signed union cards, the cards signed by em-
ployees Caughman, Medeiros, and Rodreiguez were in-
valid.37 An examination of the evidence pertinent to Re-
spondent's contentions reveals the following:
1. The validity of the cards signed by Caughman,
Rodriguez, and Medeiros
a. Applicable principles
The record shows that all of the authorization cards
submitted by the General Counsel in support of the
Union's claim of majority status contain clear and unam-
biguous language indicating that the signers authorized
the Union to represent them for the purpose of collective
bargaining. Respondant takes the position that three of
these cards, the ones signed by Medeiros, Caughman,
and Rodriguez, are invalid because the totality of the cir-
cumstances surrounding the signing of these cards is such
as to add up to an assurance to the card signers that their
cards would be used for no purpose other than to help
get an election.
In N.L.R.B. v. Gisssl Packing Co., Inc., 395 U.S. 575,
the Supreme Court approved Board law in determining
the validity of authorization cards, as set forth in Cum-
berland Shoe Corporation, 144 NLRB 1268 (1963), and
reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968).
The Court described Board law in the following terms
(395 U.S. at 584):
I: I also note that there is no contention or evidence that the other
employees, Quilice and Vojir, who Respondent thought were union orga-
nizers were the victims of discrimination
'" Respondent does not question the validity of an)y other authoriza-
tion cards
864
ED CHANDLER FORD, INC.
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (ie., states on its face that the
[card] signer authorizes the Union to represent the
employee for collective bargaining purposes and not
to seek an election), it will be counted unless it is
proved that the employee was told that the card
was to be used solely for the purposes of obtaining
an election ...
With respect to employees who sign upon alleged mis-
representations as to their purpose, the Court said,
"[E]mployees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words calcu-
lated to direct the signer to disregard and forget the lan-
guage above his signature." (395 U.S. at 606.) The Court
cautioned the Board not to apply the Cumberland Shoe
rule mechanically, and quoted with approval the Board's
language in Levi Strauss, supra, that "it is not the use or
nonuse of certain key or 'magic words' that is control-
ling, but whether or not the totality of circumstances
surrounding the card solicitation is such as to add up to
an assurance to the card signer that his card will be used
for no purpose other than to help get an election." (395
U.S. at fn. 27.)
b. Clay Caughman's card
On August 10 salesperson Caughman visited the
Union's office and, after talking to Union Business Rep-
resentative Richard Salvaressa about signing a union au-
thorization card, signed a card. It is undisputed that Sal-
varessa asked Caughman to read the card before signing
it and that Caughman in fact read the card.
Caughman, who is employed by Respondent, testified
for Respondent about Salvaressa's statements pertaining
to the purpose of the card. Caughman's version was not
presented in a straightforward fashion; rather, it consists
of a series of embellishments of prior testimony. The sub-
stance of the bits and pieces of Caughman's testimony,
when taken together, is that Salvaressa stated that the
Union needed a majority of the employees to sign the
cards in order for the Board to hold an election and as-
sured Caughman that by signing the card he was not
joining the Union, but was agreeing to have an election
and could compare the Union's benefit program with the
Company's and then make up his mind about whether he
wanted union representation.
Salvaressa testified he told Caughman that the card au-
thorized the Union to represent the employees and that
Salvaressa wanted Caughman to sign the card because, if
there were a hearing, the Union would have to establish
that a majority of the employees had signed cards and
assured Caughman that Respondent would only be
shown the card if there were such a hearing.
Caughman did not impress me as a reliable witness. He
gave the appearance of being very interested in trying to
help Respondent's case than in the truth. Salvaressa's de-
meanor was that of a sincere witness. Accordingly, I
reject the statements attributed to Salvaressa by Caugh-
man about the purpose of the card and, for this reason,
find that Respondent did not prove that Caughman's
card was invalid.
c. Tom Rodriguez' card
On August 11 salesperson Quilice successfully solicited
Rodriguez to sign a union authorization card. Quilice
told him that "the Union was trying to get in at Chan-
dler Ford," and "everybody else was participating and
that [Rodriguez] was one of the few that was left not
signing cards." Quilice also stated that Rodriguez would
be able to vote yes or no about union representation as
there would be an election. Rodriguez stated he would
sign the card. He took the card from Quilice, read it, and
then signed it.3 8
Inasmuch as Rodriguez was not told that the card he
signed would be used solely for the purpose of obtaining
an election, and the totality of circumstances does not es-
tablish that Quilice's statements amounted to an assur-
ance that the card would be used for no purpose other
than to get an election, I find that the card Rodriguez
signed was a valid designation of the Union as collective-
bargaining representative. See .V.L.R.B. v. Gissel Packing
Co., Inc., supra at 584, fn. 5 (cards valid though employ-
ees told that (I) card would be used to get an election
and (2) employee could vote either way, even though
employee signed the card).
In concluding that Rodriguez' card was a valid one, I
have considered Respondent's further contention that the
card was tainted because it was obtained on the basis of
a misrepresentation that everyone else had already signed
cards. In this regard, the Board takes the position that "a
showing, without more, of a misrepresentation as to the
number of others who have signed is insufficient to in-
validate a clear and unequivocal designation card signed
by an employee." Marie Phillips, Inc., 178 NLRB 340
(1969), affd. sub nom. Local 153., International Ladies'
Garment Workers' Union, AFL-CIO v. N.L.R.B., 443
F.2d 667, 669 (D.C. Cir. 1970). In affirming the Board's
ruling on this issue, the court stated, "such puffing (that]
a majority of the workers had already signed authoriza-
tion cards does not vitiate the cards unless the comments
were a means of coercing employees to sign cards out of
a fear of majority reprisal." Local 153, ILGWU v.
N.L.R.B.. supra, at 669. Accord: N.L.R.B. v. Boyer
Brothers, Inc., 448 F.2d 555, 562 (3d Cir. 1971). The
Sixth Circuit also has upheld the validity of cards despite
such misrepresentations where there is merely a showing
that the misrepresentations were made and no objective
evidence that they actually interfered with employee free
choice. G & A Truck Line, Inc. v. N.L.R.B., 407 F.2d
120, 123 (6th Cir. 1969) (representations that "everyone
else had signed" found insufficient to invalidate cards
where there was no showing of interference with em-
ployees' freedom of choice); N.L.R.B. v. Garner Auto-
motive & Machine, Inc., 400 F.2d 10, 12 (6th Cir. 1968)
(validity of cards upheld despite misrepresentations con-
cerning number of other employees who had signed
where there was no objective evidence that such state-
ments induced additional employees to sign). Applying
these principles, I find that Quilice's statement to Rodri-
:' 1 h dc,icriptll ,of the circumstances % rroundilg the signing of Ro-
drlglci' crd ms based pon his testimlmon QuilicC'\ restimony diflers in
certrall aispcts: however, Rodriguez impressed m as the more credible
u ilICsN
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guez that "everyone else was participating [referring to
signing cards] and that [Rodriguez] was one of the few
that was left not signing cards" is insufficient to invali-
date Rodriguez' card. There is no evidence in the record
which remotely suggests that the above representation
by the card solicitor as to how many others had signed
cards would tend to make Rodriguez unaware of the
card's purpose or would coerce him into signing the
card. Indeed, Rodriguez did not testify either directly or
by implication that he signed the card because of the
above representation and not because he wanted to au-
thorize the Union as his bargaining representative.
d. Hank Medeiros' card
On August 11 salesperson Anthony Taylor successful-
ly solicited Medeiros to sign a union authorization
card.3 9 Taylor, while at work, gave Medeiros a union
authorization card and asked him to read the card. Me-
deiros took the card and walked to his office, which was
in another building, where he filled out and signed the
card, which he immediately returned to Taylor.
One month before signing the union card, Medeiros,
who is a former member of the Union and who at a time
material to this case had been issued a membership with-
drawal card, while at lunch, met Union Business Agent
Ed Hill, who told Medeiros that the Union intended to
circulate union authorization cards among Respondent's
employees. Hill asked Madeiros to sign one of the cards
when they were circulated. Hill explained to Medeiros
that the only purpose of the card was to hold an elec-
tion.4 0
Medeiros testified that on August II he filled out and
signed the union authorization card without reading the
card because "of the urgency of getting it done" inas-
much as it was during working hours and because there
was no need for him to read the card, as Union Business
Agent Hill had already explained to him that the purpose
of the card was "only" to have an election.
Having examined the totality of the circumstances sur-
rounding the signing of Medeiros' card, I am persuaded
that the record establishes that Medeiros signed the card
without reading it because Union Business Agent Hill
had assured him that the only purpose of the card was to
hold an election, and the union adherent who solicited
Medeiros to sign the card said nothing which was calcu-
lated to cause Medeiros to disregard or forget Hill's
statement. Therefore, I find that the card signed by Me-
deiros was not a valid designation of the Union as collec-
tive-bargaining representative. Cf. Keystone Pretzel
Bakery, Inc., 242 NLRB 492 (1979), where the Board
stated "one factor which the Board has considered in the
'totality of circumstances' is whether the employees read
the cards. Thus, where an employee was told that his
card would be used only to get an election, affirmative
30 I reject Medeiros' testimony that, even though Taylor witnessed his
card, Taylor did not personally give him the card, but that Medeiros
took one of several cards which were on a desk in an office Taylor,
whose signature appears on the card in the space entitled "witnessed
by." testified that he personally gave the card to Medeiros aylor im-
pressed me as a more reliable witness than Medeiros.
4o The description of Hill's conversation with Medeiros is based upon
Medeiros' undenied testimony Hill did not testify.
evidence that the employee did not read the card sup-
ported the conclusion that the card was signed in reli-
ance on the misrepresentation as to its only purpose."
2. The status of Harold Acree
a. The evidence
Respondent has employed Acree since 1975 as a part-
time salesperson. He works full time for the telephone
company. Respondent does not schedule Acree's work.
It allows him to determine his own working hours,
number of hours, and schedule. Unlike the other sales-
persons, Acree is not required to work a minimum
number of hours each week. General Sales Manager Fi-
lippi testified Acree "works more or less when he wants
to." Respondent's president, Ed Chandler, testified
"there is no way that I could . . . make an estimate of
the hours that Acree actually puts in selling his cars,
whether it is 5 hours or 50 hours in one given week . . .
there is no way to tell because he is working outside."
Almost all of Respondent's salespersons speak to cus-
tomers either at the dealership or away from the dealer-
ship at homes, restaurants, bars, etc. At least 50 percent
of a salesperson's sales are made by speaking to custom-
ers away from the dealership. In fact, three of the sales-
persons who sell to businesses spend almost all of their
time away from the dealership. When salespersons solicit
business at the dealership's showroom, they are working
in accord with a work schedule pursuant to which they
have been assigned certain working hours during which
they must be present on the showroom floor.4 ' Acree is
never scheduled for floor duty because he conducts
almost all of his business away from the dealership.4 2 He
only visits the dealership when he is in the process of
selling an automobile to a customer, at which time he
brings the customer into the dealership to consummate
the sale. Acree may visit the dealership on several con-
secutive days with customers but, on the other hand,
may not visit the dealership for several consecutive
weeks.
During the approximately 4 years Acree has been em-
ployed as a part-time salesperson, he has sold an average
of four to five automobiles a month. The full-time sales-
persons have a sales quota of 10 automobiles a month. In
1978, Acree earned approximately $8,400 selling cars for
Respondent, which is more than 50 percent of the 1978
earnings of full-time salespersons Vojir and Vieira. Also
during several of the months in 1978, Acree earned more
money selling automobiles for Respondent than several
full-time salespersons. But during 2 months, January and
July, he had no earnings.
Like the other salespersons included in the appropriate
bargaining unit, Acree is supervised by the sales manag-
ers, has a demonstrator auto, has an office at the dealer-
ship, and is compensated the same way as the other
salespersons. Like the other salespersons, when Acree
4 When they want to leave he dealership during working hours t(
solicit business or niet a cliet, they must rct permission from a sales
mnanager
4Z The Ihree slcespersons who handle Respondent's commercial cus-
toncrs, upra, hikesisc are not assigned floor duty
866
ED CHANDLER FORD, INC.
sells an automobile the sale must be approved by a sales
manager.
Unlike the other salespersons, Acree is not required to
attend sales meetings and does not receive a sum of
money each month which he can use as a draw against
his monthly earnings. There is no indication in the
record whether or not he receives the same fringe bene-
fits as the other salespersons.
b. Conclusions
Acree's status as a bargaining unit employee depends
on whether he is sufficiently concerned with the unit's
terms and conditions of employment so as to establish a
community of interest with the other unit employees.
Shoreline Enterprises of America, Inc. v. N.L.R.B., 262
F.2d 933, 944-945 (5th Cir. 1959). Part-time employees,
such as Acree, are included in a unit of similarly situated
full-time employees and are classified as "regular" part-
time workers when the requisite community of interest is
shown. Indianapolis Glove Company, Inc. v. N.L.R.B.,
400 F.2d 363, 367 (6th Cir. 1968), and cases cited therein.
Westchester Plastics of Ohio. Inc. v. N.L.R.B., 401 F.2d
903, 907 (6th Cir. 1968). Some of the criteria used to de-
termine whether a part-time employee should be includ-
ed within a particular unit are whether a part-time em-
ployee works at regularly assigned hours a substantial
number of hours during an appropriate calendar period,
performs duties similar to those of full-time employees,
and shares the same supervision, working conditions,
wages, and fringe benefits. 43 Westchester Plastics of Ohio.
Inc. v. N.L.R.B., supra at 907; Indianapolis Glove Compa-
ny v. N.L.R.B., supra at 367; Farmers Insurance Group, et
al., 143 NLRB 240, 244-245 (1963). Other full-time em-
ployment does not relegate part-time workers to the cat-
egory of a casual employee with no interest in the unit.
Westchester Plastics of Ohio, Inc. v. N.L.R.B., supra at
907. Further, a part-time employee need not be treated
exactly the same as a full-time employee in order to be
included in a unit. For the part-time employee's commu-
nity of interest with other, full-time employees is estab-
lished once he or she is "sufficiently" concerned with the
unit's terms and conditions of employment. 4 4 Indianapo-
lis Glove Company v. N.L.R.B., supra at 367-369; Shore-
line Enterprises of America v. NL.R.B., supra at 944-945;
Westchester Plastics of Ohio, Inc. v. N.L.R.B.. supra at
907. What emerges from the decided cases, in my opin-
ion, as the key objective factor in evaluating part-time
employees' sufficiency of concern with a unit's terms and
conditions of employment is whether the part-time em-
ployee works on a regular basis and performs essentially
the same work as the unit employee. Westchester Plastics
of Ohio, Inc. v. N.L.R.B., supra at 907; 4 5 Bob's Ambu-
lance Service, 178 NLRB 1, 2 (1969).
43 Also relevant is the amount of work contact a part-time employee
has with the full-timers. H W Elson Bottling Company. 155 NLRB 714,
724 (1965); Holiday Inns of.4merica, Inc d/b/a Holiday Inn o Oak Ridge.
Tennessee. 176 NLRB 939. 941 (19t69)
44 This "sufficiency" test merely recognies that a part-time employee.
by the very nature of his part-time status, cannot he expected to have
work status identical to that of a full-time worker.
45 In Westchte,'r Plasics, the part-time employee worked an irregular
schedule of hours in order to correlate his time at Westchester Plastics
with the time demands or his full-time joh In addition. the employee
In the instant case the record reveals a regular and
continuing pattern of part-time employment by Acree.
At the commencement of the hearing in this case, Acree
had been employed by Respondent as a part-time sales-
person for at least 4 years and, during this period, sold
an average of four to five cars a month. This is approxi-
mately one-half of the number of cars Respondent ex-
pects its full-time salespersons to sell. Respondent's re-
cords of its salespersons' earnings for 1978, the only year
for which earnings records were introduced into evi-
dence, show that in 1978 Acree earned approximately
$8,400 selling automobiles, a substantial sum of money,
and in several months earned more than some of the
Company's full-time salespersons and for the whole year
earned more than 50 percent of what two of Respon-
dent's full-time salespersons earned. This sales and earn-
ings record is not the record of a temporary or casual
worker; rather, I am of the view that it is a fair inference
from this record that Acree, during the lengthy tenure of
his employment with Respondent, has regularly worked
a substantial number of hours.
Inasmuch as Acree has regularly worked a substantial
number of hours for Respondent as a part-time salesper-
son and because his work is similar to the work per-
formed by the full-time salespersons and because he
shares the same supervision and method of compensation
with the full-time salespersons, I am of the opinion that
Acree should be considered a regular part-time employee
with a sufficient community of interest to be included
within the appropriate unit.
In determining the relative regularity or permanence
of Acree's employment with Respondent, I believe that
the evidence, which indicates that Acree has regularly
worked a significant number of hours for Respondent.
outweighs those considerations having to do with his
freedom to determine his own work schedule and his
freedom to work intermittently. For, it is not a self-
scheduled workweek whereby a part-time employee
limits his hours of work and his earnings which plays a
primary role in deciding whether he is a casual or regu-
lar part-time worker. Cf. Indianapolis Glove Company.
Inc. v. N.L.R.B., 400 F.2d 363, 368. Accord: Consolidat-
ed Supply Co., Inc. and its successor Consolidated Supply of
Madison, Inc., 192 NLRB 982 (1971); Holiday Inns of
America, supra at 940-941. Rather, the test focuses on
whether the part-time worker works regularly for the
employer and whether he or she performs the same basic
job as do the full-time workers. Indianapolis Glove Com-
pany v. N.L.R.B., supra at 367-369; Westchester Plastics of
Ohio, Inc. v. N.L.R.B., supra at 908. A longstanding reg-
ularly employed salesperson, such as Acree, meets these
criteria. The several differences between Acree and the
other unit employees, such as the fact that he is exempt
from attending sales meetings, does not receive a draw
against his commissions, is not listed on the posted notice
worked 16 17 hours a week for Westchester P3astic, and receied nlln
of the fringe benefits to which full-lime emplosees were entitled None-
theles, becaus li he regularly performed shork for Westchester I'lastics
and beca use lie perforimed duties similar t the lull-line niploCee. and
shared the same uperisiloni. uwrking condltlon.. ad wlagcs. Ihl' court
enforced the Boiard's rder and included him in Ai 1Ullil fll-tinCme e
plosees
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which compares the monthly earnings of the salesper-
sons, and does not have to meet the same production
quota as the full-time employees, go only toward Acree's
status as a non-full-time employee, not to any question
concerning the regularity or irregularity of his part-time
work. Part-time employees, by the very nature of their
status, can be expected to face some conditions different
than those of full-time employees. Such differences in no
way are inconsistent with regular part-time status.
Finally, I recognize that, since Acree performs most of
his sales work away from the dealership, he does not
have a significant amount of contact with Respondent's
other salespersons. However, as I have found supra, it is
customary for all of the salespersons to perform at least
50 percent of their work away from the dealership and
three of the salespersons, like Acree, do virtually all of
their saleswork away from the dealership. Under these
circumstances, the lack of significant contact between
Acree and the other salespersons does not militate
against a finding that he is a regular part-time employee.
3. The status of Kim Choi
a. The evidence
Kim Choi is the wife of Sam Choi, who is a salesper-
son employed by Respondent. Kim Choi worked for Re-
spondent from May 25 until August 31. Sam Choi began
work for Respondent in February and was still employed
on the date of the hearing in this case. He is admittedly
included within the appropriate unit. The Chois are
Korean. Kim Choi's ability to speak and understand Eng-
lish is limited. She was employed for the specific purpose
of assisting her husband in selling vehicles to Korean
customers. She filled out the Company's standard em-
ployment application, and her husband asked Sales Man-
ager Filippi if Respondent would hire her as a salesper-
son to help him sell motor vehicles to Korean customers.
Filippi hired Kim Choi but advised Sam Choi that his
wife would have to obtain her sales license from the
State of California and that Filippi expected her to work
the same work schedule as her husband.
Kim Choi obtained a temporary sales license from
California, but did not work the same work schedule as
her husband. She worked part time. Sam Choi, like Re-
spondent's other full-time salespersons, worked approxi-
mately 55 hours a week, whereas Kim Choi worked ap-
proximately 22 hours each week.
Unlike the other salespersons, Kim Choi had no office
of her own. She shared her husband's. She assisted her
husband in soliciting business by writing to Korean cus-
tomers and by personally speaking to Korean customers
who visited the dealership. All of her earnings were the
result of commissions which were split with her husband.
She never sold a vehicle by herself, nor split a sale with
a salesperson other than her husband, and, since her hus-
band "closed" all of her sales transactions, Respondent
listed only her husband's sales number on the report of
sales form submitted to the California Department of
Motor Vehicles.
Respondent listed Kim Choi on its regular payroll,
with the other salespersons, and she was paid in the same
manner as the others; i.e., commissions and bonuses.
Also, like the other salespersons, she was paid a monthly
draw. Kim Choi and her husband split all of the commis-
sions paid by Respondent involving the sales of vehicles
in which Kim Choi was personally involved. They split
these commissions on a 50/50 basis.4 6 The record re-
flects that the splitting of commissions is a common prac-
tice among the salespersons inasmuch as the commissions
from approximately 60 percent of the Respondent's sales
are split by two or more salespersons.
Kim Choi performed similar duties as the other sales-
persons. She solicited business through the mail and at-
tempted to sell cars and trucks to customers who visited
the dealership. She greeted customers when they visited
the dealership's sales floor, showed them the various ve-
hicles being offered for sale, and attempted to sell them a
vehicle. In connection with her sales' efforts, she secured
miscellaneous information, including credit information
from the customers which the dealership needed before
it could commit itself to a sale. Kim Choi, like all of the
other salespersons, attempted to get customers commit-
ted to purchasing a motor vehicle at a particular price,
but unlike the others she would not "close" any of these
sales transactions but would turn this task over to her
husband. In the automobile sales industry a salesperson
who performs Kim Choi's duties is commonly known as
a "liner."
Like the other salespersons, Kim Choi was supervised
by the sales managers. Unlike the other salespersons, she
was exempt from attending the sales meetings due to her
poor comprehension of English. Her husband told her
what took place at these meetings.
Unlike the other salespersons, Kim Choi was not pro-
vided with a demonstrator automobile nor with medical
insurance. She turned down the offer of a demonstrator
and medical insurance coverage because she always rode
to and from work with her husband, using his demon-
strator, and as the wife of a salesperson she was already
covered by the Company's medical program when she
started working.
b. Conclusions
The General Counsel contends that Kim Choi was a
casual employee with an insufficient community of inter-
est with the unit employees to be included within the ap-
propriate bargaining unit. The applicable principles of
law governing the status of so-called casual and part-time
employees have been discussed, supra, in connection
with Acree's status. Guided by these principles, I am of
the opinion that Kim Choi had a sufficient community of
interest in common with the salespersons employed in
the appropriate unit so as to be included within that unit.
Kim Choi regularly worked as a salesperson a substantial
number of hours, approximately 22 hours a week, and
performed the same work in the same work area as sales-
persons who are included in the appropriate unit and
shared the same method of compensation and the same
supervision as the unit employees. These circumstances
"4 The Chois received separate monthly paychecks The record reveals
that Kimn Choi earned 23760 during her first week of employment and
during the next 3 months earned $1.1 1737. 1,046.50, and $106704, re-
spectively
868
ED CHANDLER FORD, INC.
persuade me that Choi was a regular part-time employee,
as defined by the Board, who shared a community of in-
terest with the full-time salespersons sufficient to warrant
her inclusion in that bargaining unit. See Westchester
Plastics of Ohio, Inc. v. N.L.R.B., supra.
The fact that Kim Choi was exempt from attending
sales meetings because of her limited comprehension of
English and elected not to participate in certain fringe
benefit programs does not detract from her status as a
regular part-time employee. Nor does her inability to
communicate with salespersons other than her husband
detract from the weight of the evidence, supra, which es-
tablishes that she was sufficiently concerned with the
terms and conditions of employment in the appropriate
unit so as to warrant her participation in the selection of
a collective-bargaining agent. The fact that an employee
does not speak or understand English should not pre-
clude the employee from participating in the selection of
a collective-bargaining representative where, as here, the
record demonstrates that the employee is sufficiently
concerned with the terms and conditions of employment
of the unit employees.
4. The status of Duarte, Greene, and Scott
a. The evidence
In March 1978, Respondent hired Lanny Brum as a
sales manager. Brum was experienced in the field of
automobile sales financing. He was hired for the purpose
of reorganizing that aspect of the Respondent's business
which was involved with arranging credit for customers
who had decided to buy an automobile. Brum discharged
the persons employed by Respondent involved in this
type of work and replaced them with Duarte, Greene,
and Scott, whom Brum hired respectively in March,
April, and July. None of them had any sales experience
but previously had been employed by banks or other fi-
nancial institutions. Brum, as he credibly testified, did
not hire them to perform salespersons' duties but hired
them to deal with that aspect of the business which in-
volves arranging customers' credit. Unlike the salesper-
sons, neither Duarte, Greene, nor Scott were referred to
as salespersons; instead Respondent gave them the title
of "finance manager." 4 7
Duarte, Greene, and Scott, herein referred to as fi-
nance managers, spent approximately 80 percent of their
worktime speaking with representatives of banks and
other financial institutions for the purpose of checking
out customers' credit and to arrange for credit for cus-
tomers who wanted to purchase automobiles. The fi-
nance managers also prepared the necessary documenta-
tion to complete the sales transactions and transfer the
automobile's title. They explained these documents to the
customers and secured the customer's signatures. The in-
formation which the finance managers use to prepare
these documents and to make the necessary credit ar-
rangements is usually transmitted to them by the sales-
persons.
"4 Based upon the undisputed evidence that Respondent supplied busi-
ness cards to Duarte, Greene, and Scott to give to customers. which
cards designated them as "finance manager."
Normally, finance managers come into contact with
the salespersons on several different occasions during the
sale of an automobile. A salesperson usually escorts the
customer into the finance manager's office to sign the
documents connected with the sales transaction. If a fi-
nance manager has difficulty getting a bank to approve a
customer's loan, he may speak to the salesperson and/or
the customer in an effort to resolve the problem. Also, if
the customer's loan application is incomplete or incor-
rect, the finance manager will speak to the salesperson
and/or the customer. Also, the credit application filled
out by the customer is delivered to the finance manager
by either a salesperson or the sales manager and, if the
finance manager's credit investigation reveals derogatory
information, he will discuss the matter with the salesper-
son and/or the customer.
During a customer's visit to the finance manager's
office to sign the documents connected with the pur-
chase of a vehicle, the finance manager, besides explain-
ing the information contained in the several sales docu-
ments, attempts to persuade the customer to purchase
several extra items such as undercoating, an extended
warranty, life and disability insurance, or a burglar
alarm. If the salesperson has failed to persuade the cus-
tomer to purchase one or all of these extras, the finance
manager will also try to sell them to the customer and, if
he succeeds, will split the bonus Respondent pays for the
sale of these extras with the salesperson who sold the ve-
hicle. Also, the finance manager will attempt to persuade
the customers to finance their automobiles through finan-
cial institutions recommended by Respondent, if the
salesperson has not already done so, and if he succeeds
will split a bonus with the salesperson.
It is not unusual for a customer, while in the finance
manager's office for the purpose of signing the sales
papers to have second thoughts about buying the auto-
mobile. After looking through the documents, customers
indicate to the finance manager that they now realize
that the payments are more than they can afford. The fi-
nance manager will then attempt to persuade the custom-
er to go through with the sale, but if he fails will call the
salesperson into the office and will attempt to resell the
customer.
The finance managers share common supervision with
the salespersons and share the same fringe benefit pro-
grams with them.
Regarding the selling of motor vehicles, the salesper-
sons spend virtually all of their working time selling
automobiles or trucks to customers and spend a signifi-
cant portion of their worktime away from the Employ-
er's premises selling these vehicles. The remainder of
their working time is spent in their offices speaking to
prospective customers over the telephone and writing to
prospective customers. The finance managers only on
rare occasions, if ever, will attempt to persuade a cus-
tomer to purchase a motor vehicle. Occasionally, one of
the finance managers will sell an automobile to a person-
al friend or a representative of one of the financial insti-
tutions whom they do business with. Also, Duarte, who
is proficient in Spanish, will occasionally sell an auto-
mobile to a Spanish-speaking customer when no Spanish-
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speaking salesperson is available to speak to the custom-
er. On none of these occasions will the finance managers
receive any compensation for the sale, whereas the sales-
persons whenever they sell an automobile receive a com-
mission.
All of Respondent's employees, including the finance
managers, who are connected with the sale of auto-
mobiles are required by the State of California to have a
sales license. However, the finance managers worked
without sales licenses for several months before taking
the time to go to the office of the Department of Motor
Vehicles to secure them. Duarte and Greene worked for
approximately 6 months before they secured their li-
censes, and Scott worked for approximately 2 months
before he got his.
The way the finance managers are compensated differs
from the salespersons. The salespersons receive a com-
mission for every automobile they sell and during the
middle of each month receive $600, called a "draw,"
which is deducted from their commissions. The finance
managers receive a monthly salary plus a percentage of
the dealership's monthly gross income from the sales of
vehicles.
The finance managers work longer hours than the
salespersons. They work between 60 to 65 hours a week,
whereas the salespersons average between 50 to 55 hours
a week.
The finance managers share the same office, whereas
each full-time salesperson has a separate office. The fi-
nance managers' office is located in the same area as the
salespersons' offices.
The finance managers are not required to attend the
regularly scheduled sales meetings, whereas the salesper-
sons are required to attend these meetings. However, the
finance managers frequently attend sales meetings.
The salespersons are furnished with an automobile for
their personal use, called a demonstrator, whereas the fi-
nance managers are not.
b. Conclusions
In its answer to the complaint Respondent admits that
the bargaining unit in which the Union seeks recognition,
a unit comprised of "all salespersons employed by Re-
spondent excluding all other employees," is an appropri-
ate bargaining unit within the meaning of the Act.48
Thus, the essential question concerning the status of the
finance managers is whether to include them in the ap-
propriate bargaining unit, even though it is limited to
only salespersons. The basic criteria used to exclude or
include employees from appropriate units is a community
of interest. Under this criteria "the Board traditionally
excludes from the appropriate unit those employees who
do not have a sufficient interest in common with other
employees to warrant their inclusion therein." Stanislaus
'^ I recognize that Respondent in the representation case entered into
an election agreement which specifically limited the appropriate unit to
"salespersons"; thus, on its face the description does not include the fi-
nance managers Whatever the effect of this agreement concerning the
voting eligibility or the finance managers in the representation case, I am
of the opinion that it does not preclude Respondent in the unfair labor
practice proceeding from urging that the finance managers should be in-
cluded in the appropriate unit based upon a community of interest with
the salespersons.
Implement & Hardware Company, 92 NLRB 897, 898
(1950). I have considered the several factors which are
pertinent to the question of whether the finance manag-
ers have a sufficient community of interest to be included
within the appropriate unit of salespersons. On balance, I
conclude that they do not have a sufficient community
of interest with the salespersons to warrant their inclu-
sion. In reaching this conclusion, I was influenced by
these considerations:
(1) There is a substantial difference between a finance
manager's and salesperson's method of compensation.
The salespersons are not salaried or hourly paid workers,
but they receive a commission for each vehicle they sell
and during the middle of the payroll period receive a
sum of money called a "draw" which is deducted from
their commissions. In contrast, the finance managers, like
the members of management, receive a fixed monthly
salary and a percentage of the dealership's sales revenue.
(2) There are substantial differences in the finance
managers' and salespersons' working conditions: (a) The
finance managers spend all of their working time at the
dealership, whereas the salespersons spend a substantial
portion of their working time away from the dealership;
(b) the finance managers are not required to attend the
regularly scheduled sales meetings; (c) the finance man-
agers share one office, whereas the salespersons each
have their own office; (d) the finance managers regularly
work 10 hours a week more than the salespersons; and
(e) the salespersons have the personal use of a company
demonstrator car, whereas the finance managers do not.
(3) There are significant dissimilarities between the fi-
nance managers' and salespersons' skills and qualifica-
tions. The finance managers' employment experience
prior to working for Respondent was with banks and
other financial institutions. Consistent with their past
work experience, they were employed for the express
purpose of dealing with banks and other financial institu-
tions to check out customers' credit ratings and to ar-
range for customers' credit. The finance managers are
not employed by Respondent because of their qualifica-
tions and skills as salespersons, but because of their quali-
fications and skills in dealing with customers' credit,
whereas Respondent's salespersons are employed because
of their skills and qualifications as salespersons.
(4) There are significant differences between the fi-
nance managers' and salespersons' job functions. A sales-
person spends virtually 100 percent of his or her work-
time selling customers motor vehicles and extra items,
whereas a finance manager spends a de minimis amount
of worktime selling motor vehicles and spends not more
than 5 percent of his worktime selling extra items and as-
suaging hesitant customers.
The finance managers spend approximately 80 percent
of their worktime talking with representatives of banks
and other financial institutions to determine whether cus-
tomers' credit histories are satisfactory and to arrange for
the customers to be extended credit. The remaining 20
percent of the finance managers' worktime is spent as
follows: A portion is used to secure credit information
from the customers, another portion is spent performing
the clerical work, i.e., typing, which is necessary for the
870
ED CHANDLER FORD, INC.
preparation of the several sales and credit documents,
and yet another portion is spent explaining these docu-
ments to the customers and having them signed by the
customers. Also, a part of their worktime is spent selling
extra items and "house financing" to the customers and
attempting to assuage customers who, at the time the
sales and credit documents are being explained by the fi-
nance managers, become hesitant about buying the vehi-
cle. Finally, finance managers will sporadically sell an
automobile to a personal friend or a representative of one
of the banks with whom they do businsss. However, this
selling constitutes a de minimis amount of their working
time and in the rare instances when they sell an auto-
mobile, unlike the salespersons, the finance managers do
not receive a commission or any other form of additional
compensation for the sale. 49
(5) Respondent evaluates the salespersons' and finance
managers' work performnces differently. It is undisputed
that the most important factor used by Respondent to
evaluate its salespersons' work performances is the
amount of commissions earned each month by the sales-
persons from the sales of motor vehicles. In other words,
the salespersons' work performances are judged primar-
ily on their success in selling automobiles, whereas the fi-
nance managers, whose job is not to sell autombiles, pre-
sumably are judged primarily on their performance in ar-
ranging for customers' credit which is their principal re-
sponsibility.
The aforesaid circumstances persuade me that the fi-
nance managers do not have a sufficient community of
interest with the salespersons and for that reason should
be excluded from the appropriate unit. In reaching this
conclusion, I have considered that the finance managers
share the same supervision and fringe benefits with the
salespersons, are regularly in contact with the salesper-
sons, and spend approximately 5 percent of their work-
ing time attempting to assuage customers who have
changed their minds about buying a motor vehicle and in
attempting to sell customers extra items and "house fi-
nancing" for which they share a bonus with the salesper-
sons who sold the cars. In concluding that these factors
are not sufficient to overcome the other substantial fac-
tors which indicate that the finance managers do not
have a sufficient community of interest with the salesper-
sons, I note that the finance managers' sales duties are
minimal and constitute only 5 percent of their working
time. Cf. N.L.R.B. v. Sunnyland Refining Co., d/b/a
Kane-Miller Corp., 474 F.2d 407 (5th Cir. 1973). Also, I
have carefully considered Sears, Roebuck Co., 194 NLRB
321 (1971); Levitz Furniture Corporation, 223 NLRB 522
(1976); Dr. Pepper Bottling Company of Fort Worth, Texas,
228 NLRB 1119 (1977) (dispatcher); and Coca-Cola Bot-
tling Company of Fort Worth, 229 NLRB 533 (1977) (spe-
cialists), cited by Respondent, and I am of the opinion
that these cases are significantly factually distinguishable.
4' In view of the fact that it is undisputed that 80 percent of the fi-
nance managers' working time is spent dealing with representatives of
banks and other financial institutions and that the remaining 20 percent of
their time is apportioned between the several tasks described above, I
find that it is a fair inference that not more than 5 percent of a finance
manager's working time is devoted to selling extra items and "house fi-
nancing," and reassuring customers who have become hesitant about
completing their sales transactions
Moreover, in Sears, Roebuck and Levitz Furniture the em-
ployers disputed the appropriateness of the unit sought
by the union. Here, Respondent admits that a bargaining
unit comprised solely of Respondent's salespersons is an
appropriate unit.
Based upon the foregoing, I find that the finance man-
agers are not sufficiently concerned with the terms and
conditions of employment in the appropriate unit so as to
have a community of interest with those employees;
therefore, I shall recommend that the finance managers
be excluded from the appropriate unit.
5. Conclusions
I have found, supra, that Acree and Kim Choi were in-
cluded in the appropriate bargaining unit and that the au-
thorization card signed by Medeiros was invalid. There-
fore, since Acree and Choi did not sign union cards, only
17 of the 35 employees who were employed in the ap-
propriate unit on August II had signed cards designating
the Union as their exclusive collective-bargaining repre-
sentative; thus, the Union did not represent a majority of
the unit employees on that date. The General Counsel
does not contend the Union at any other time material to
this case represented a majority of the Respondent's em-
ployees in the appropriate unit and my independent ex-
amination of the record on this point reveals that subse-
quent to August 11 the Union did not at any time materi-
al to this case acquire the support of a majority of the
unit employees. It is because the Union at no time repre-
sented a majority of the unit employees that I shall rec-
ommend that the refusal-to-bargain allegation be dis-
missed.
11. THE REPRESENTATION CASE
The Union's objections to the election encompass the
subject matter of the unfair labor practice violations
found supra, and, accordingly, as such conduct took
place during the relevant period between the filing of the
representation petition and the holding of the election, I
conclude that those unfair labor practices interfered with
the employees' free choice in the election. Therefore, I
shall recommend that the election herein be set aside and
that the Regional Director shall hold a second election
to determine the question of representation when he
deems that a fair election can be held.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. By threatening employees that their union activities
were inconsistent with continued employment with Re-
spondent, by threatening employees with the cancellation
of their bonuses if they supported the Union, by deliber-
ately placing the name of an ineligible voter on the eligi-
bility list it furnished the Board in Case 32-RC-446 for
the purpose of defeating the Union, and by announcing
and maintaining a rule which prohibits employees from
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in union solicitation or from talking about the
Union during nonworking time in nonpublic areas of the
dealership, Respondent violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Other than as found above, Respondent has not en-
gaged in unfair labor practices within the meaning of the
Act.
6. By engaging in the conduct described above in
paragraph 3 of the Conclusions of Law, Respondent has
interfered with its employees' freedom of choice in the
election conducted September 26, 1978.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act. The Gen-
eral Counsel's contention that the unfair labor practices
found herein warrant the imposition of a remedial bar-
gaining order has been rejected because, as I have found
supra, the Union did not at any point of time represent a
majority of the employees in the appropriate bargaining
unit and, absent such a showing, Respondent's unfair
labor practices do not warrant the imposition of a bar-
gaining order.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 5°
The Respondent, Ed Chandler Ford, Inc., Hayward,
California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Threatening employees that their union activities
are inconsistent with continued employment with Ed
Chandler Ford, Inc.
bO In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Maintaining in effect a rule which prohibits em-
ployees from engaging in union solicitation or from talk-
ing about a union during nonworking time in nonpublic
areas of Ed Chandler Ford, Inc.
(c) Deliberately including the names of ineligible
voters in the voter eligibility list furnished to the Nation-
al Labor Relations Board for the purpose of defeating a
union in a Board-conducted representation election.
(d) Threatening employees that their bonuses will be
canceled if they support a union.
(e) In any like or related manner interfering with or
attempting to restrain or coerce employees in the exer-
cise of the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Rescind its rule which prohibits employees from
engaging in union solicitation or from talking about a
union during nonworking time in nonpublic areas of Ed
Chandler Ford, Inc.
(b) Post at its facility in Hayward, California, copies of
the attached notice marked "Appendix." 5 ' Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges other unfair
labor practices not specifically found herein.
IT IS FURTHER ORDERED that the election in Case 32-
RC-446 conducted September 26, 1978, be, and it hereby
is, set aside, and that said case be remanded to the Re-
gional Director for Region 32 for the purpose of con-
ducting a new election.
5' In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
872