Bob Henry Dodge, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1973

203 N.L.R.B. 78 (N.L.R.B. 1973)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bob Henry Dodge , Inc. and American Federation of
Professional Salesmen . Case 13-CA-11091
April 23, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On June 29, 1972, Administrative Law Judge 1 Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as con-
sistent herewith.
We find, contrary to the Administrative Law Judge,
that the Respondent, through Sales Manager Leavitt,
discharged Daley for engaging in protected, concert-
ed activity, and therefore violated Section 8(a)(1) of
the Act.
The Administrative Law Judge made the following
uncontroverted finding as to Daley's discharge:
About 9 o'clock Saturday morning, the sales-
men assembled in Leavitt's office for the regular
weekly sales meeting. It was on this occasion that
Daley was terminated under the following cir-
cumstances : Before the meeting started, Daley
announced to Leavitt that, in his capacity as un-
ion steward representing himself, he did not in-
tend voluntarily to change his day off as Leavitt
had ordered; that to make such change Leavitt
should bargain with the Union; and that if Leav-
itt acted unilaterally in that respect, he (Daley)
would file charges with the Board. Continuing,
Daley then accused Leavitt of making untrue
statements that he had hit Leavitt during the
Wednesday episode when, in fact, it was Leavitt
who had hit him. For this reason, Daley stated,
he would also file a charge on that ground in
order to protect himself. These remarks provoked
Leavitt to terminate Daley on the spot, declaring
that Daley had been fired the previous Wednes-
day for hitting him and that he could file all the
charges he wanted to. Daley left the office only
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
to return to tell Baldwin to assume his union
steward functions in his absence.
As grounds for finding that the General Counsel
had failed to establish Daley's discharge as an 8(a)(1)
violation, the Administrative Law Judge reasoned, in
part, as follows:
To be sure , Daley had a statutory right, as union
steward, to grieve on his own behalf regarding
the change in his day off. But this did not entitle
him to disobey a legitimate order of manage-
ment. It was ill advised for Daley not to accept
the change and then to submit his complaint to
management or to file an unfair labor practice
charge with the Board if he believed that the
Respondent' s unilateral action violated its bar-
gaining obligation. By taking matters into his
own hands, Daley rendered himself vulnerable to
discipline.
We disagree that the foregoing reasoning reflects
the state of events or accurately reflects Daley's con-
duct at this meeting . The Administrative Law Judge's
characterization of the Respondent's order to Daley,
to change his day off, as a "legitimate order of man-
agement" begs the very question on which the legality
of the Respondent's conduct in discharging Daley
depends. Moreover, we fail to find any evidence that
Daley did in fact disobey Leavitt's order. At the very
worst, all that Daley told Leavitt in that regard was
that he would not voluntarily change his hours of
work or other working conditions and that if Leavitt
chose to change them unilaterally, then Daley would
file charges with the Board. As we view it, Daley, in
seeking to preserve the status quo, was doing no more
than the Administrative Law Judge claims he should
have done. Even were Daley's conduct to be con-
strued as disobedience, the question would still re-
main as to the protected character of his conduct, it
being well settled that, absent unusual circumstances
not here present, the protections accorded employees
under the Act are not dependent upon the merit, or
lack of merit, of the concerted activity in which they
engage , even though such activity embraces the diso-
bedience of an order of management .2
In resolving the issue of an 8(a)(1) violation herein
presented, it must be borne in mind that there was no
contract providing for grievance machinery, nor were
there any established work rules. In these circum-
stances , Daley had no other recourse than to grieve
informally in conversations with the Respondent's
representatives. Although in so doing he may have
acted "defiantly" toward Leavitt or accused him of
untruths, as the Administrative Law Judge found, we
nevertheless find that the words did not go beyond the
2 Eastern Illinois Gas & Securities Co, 175 NLRB 639, 640, Anaconda
Aluminum Company , 160 NLRB 35, 40
203 NLRB No. 1
BOB HENRY DODGE, INC.
bounds permissible in the free and open discussion
between management and labor contemplated by the
Act.3 We therefore find that Leavitt's immediate dis-
charge of Daley, characterized by the Administrative
Law Judge as an impulsive reaction to Daley's re-
marks, constituted a violation of Section 8(a)(1).4
In view of our finding herein, we shall substitute the
following remedy for the remedy prescribed by the
Administrative Law Judge in his Decision, and we
shall substitute the following order and notice for
those of the Administrative Law Judge.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act , we shall order that it cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act. It has been found
that the Respondent has discriminated against em-
ployee Richard J. Daley by discharging him on De-
cember 11, 1971, for his concerted activity in
presenting a grievance on his own behalf , in violation
of Section 8(a)(1) of the Act. We shall therefore order
the Respondent to offer him immediate and full rein-
statement to his former position or, if that position no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges , and to make him whole for any loss of pay
he may have suffered as a result of this discrimination
against him by payment to him of a sum of money
equal to that which he would have earned as wages
from the date of the discrimination to the date of
reinstatement , less his net earnings during such peri-
od, in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, together
with interest at the rate of 6 percent per annum to be
added to such backpay , such interest to be computed
in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
The nature of the unfair labor practices found here-
in "goes to the very heart of the Act." The Respon-
dent will therefore , be further ordered to cease and
desist from "in any other manner" infringing upon the
rights guaranteed to its employees by Section 7 of the
Act.5
3 Monark Boat Company, 179 NLRB 872, 874; Crown Central Petroleum
Corporation, 177 NLRB 322: Boaz Spinning Co, 165 NLRB 1019. At the
hearing , Respondent took the position that Daley was discharged for diso-
beying an order. It did not contend that the discharge resulted from Daley's
accusing Leavitt of an untruth
4 The General Counsel would have us find that Respondent 's discharge of
Daley also constituted a violation of Sec 8(a)(3) of the Act. We find it
unnecessary to consider this contention because even were we to find such
violation as urged , the remedy would be the same.
3 Fry Products, Inc, 110 NLRB 1000. 1005; NLRB v. Entwistle Mfg Co,
120 F.2d 532 (C A 4).
ORDER
79
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Bob
Henry Dodge, Inc., Forest Park, Illinois, its officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining , and coercing em-
ployees in the exercise of the rights guaranteed them
in Section 7 of the Act by discharging them for engag-
ing in protected activities.
(b) Criticizing, reprimanding, or threatening any
employee for performing his union steward functions
in representing fellow employees and presenting their
grievances and complaints to management, and for
becoming involved in union affairs and activity.
(c) Advising any employee that, if he discontinued
his union activity and cooperated with management,
he would make money.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right to self-organization, to form labor organi-
zations, to join or assist American Federation of Pro-
fessional Salesmen or any other labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to reinstate Richard J. Daley to his for-
mer position, or, if this position no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(b) Make whole Richard J. Daley for any loss of
earnings he may have suffered by reason of the unlaw-
ful action against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all oth-
er records necessary to analyze the amount of back-
pay due under the terms hereof.
(d) Post at its place of business in Forest Park,
Illinois , copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by the
Regional Director for Region 13, after being duly
6 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by Respondent 's authorized representative,
shall be posted by Respondent immediately upon re-
ceipt thereof , and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced , or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER , dissenting:
I do not agree with my colleagues that there is
adequate basis for reversing the Administrative Law
Judge 's Decision with respect to the discharge of em-
ployee Daley . I would dismiss the 8 (a)(1) and (3) alle-
gations of the complaint with respect to his discharge
for all of the reasons stated by the Administrative Law
Judge in his Decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain , or coerce
our employees in the exercise of the rights guar-
anteed them in Section 7 of the Act, by dis-
charging them for engaging in protected
activities.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their right to self -organization, to
form labor organizations, to join or assist Ameri-
can Federation of Professional Salesmen or any
other labor organization , to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activi-
ties.
WE WILL NOT criticize , reprimand, or threaten
any employee for performing his union steward
functions in representing fellow employees and
presenting their grievances and complaints to
management or for becoming involved in union
affairs and activity.
WE WILL NOT advise any employee that, if he
discontinued his union activity and cooperated
with management , he would make money.
WE WILL offer to Richard J. Daley immediate
and full unconditional reinstatement to his for-
mer position or, if such job no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed by him and make him whole
for any loss of pay suffered as a result of the
discrimination against him.
WE WILL pay him for any loss of pay he may
have suffered as a result of his discharge on De-
cember 11 , 1971, together with interest.
BOB HENRY DODGE, INC
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above -named individ-
ual, if presently serving in the Armed Forces of the
United States , of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Everett McKinley Dirksen Building,
Room 881 , 219 South Dearborn Street, Chicago, Illi-
nois 60604 , Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISCYER , Trial Examiner : This proceeding, with all
the parties represented , was heard on March 23, 1972 in
Chicago, Illinois, on the complaint of the General Counsel
issued on January 26 1972 ,1 as subsequently amended, and
the amended answer of Bob Henry Dodge, Inc., herein
called the Respondent or Company . The issues litigated
were whether the Respondent 's discharge of Richard J. Da-
ley, the Union 's shop steward , was in reprisal for his union
and concerted activity in presenting a grievance on his own
behalf or otherwise to discourage union membership and
therefore violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended,' and whether its other
1 The complaint is based on a charge filed by American Federation of
Professional Salesmen on December 14, 1971, a copy of which was duly
served on the Respondent by registered mail the next day
2 Sec. 8(axl) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent, Sec 7 provides that "[elm-
ployees shall have the right to self -organization , to form, join, or assist labor
BOB HENRY DODGE, INC. 81
conduct independently violated Section 8(a)(1) of the Act.
At the close of the hearing, the parties waived oral argument
but subsequently the General Counsel and the Respondent
filed briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses , and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, has a Dodge
automobile dealership in Forest Park, Illinois, where it is
engaged in the business of selling and servicing new and
used cars and trucks. In the course and conduct of their
operations , the Respondent and its predecessor at this loca-
tion , Pat Hollahan Dodge, Inc., during the past year, which
is a representative period for the dealership, did a gross
volume of business in excess of $500,000. For the same
period, the dealership received at the location directly from
outside the State goods valued in excess of $50,000.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
It is undisputed that American Federation of Profession-
al Salesmen , herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The Respondent's recognition of the Union
On August 16, 1971,3 the Respondent purchased the busi-
ness of Pat Hollahan Dodge , Inc., and succeeded to
Hollahan's Dodge dealership. At that time, the Respondent
had already been informed that the Union was the certified
bargaining representative of Hollahan 's automobile and
truck salesmen . Previously, the Respondent had received
from the Union a copy of Agreement and Stipulation for
Entry of Board Order and Court Decree Enforcing Board
Order which had been entered into by Hollahan and the
Union with the approval of the General Counsel in settle-
ment of unfair labor practice charges." This Agreement re-
quired Hollahan, "its officers, agents, successors, and
organizations , to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ...."
Sec. 8(a)(3) of the Act, with certain qualifications not material herein,
prohibits an employer , "by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or dis-
courage membership in any labor organization .. .
3 Unless otherwise indicated , all dates refer to 1971
4 Pal Hollahan Dodge, Inc, Cases 13-CA-9846 and 10174 The Agreement
introduced in evidence bears no date
assigns" to refrain from unilaterally reducing commissions
and wages of unit employees or changing the method of
assignment of demonstrator automobiles , without bargain-
ing with the Union . It further provided for the reimburse-
ment of employees in specified amounts for loss of pay they
suffered by reason of Hollahan 's unilateral reduction of
commissions and wages and for collective bargaining with
the Union on the latter's request.
In accordance with the Agreement , the Respondent ex-
tended recognition to the Union and thereafter joined other
automobile dealers in the area represented by Employers
Association of Greater Chicago in contract negotiations
with the Union. As of the time of the hearing, the
Respondent's president , Bob Henry , had participated in
five or six bargaining sessions without agreement having
been reached . There is also testimony that the Respondent
attempted in good faith to comply with the prohibition in
the Agreement against unilateral changes in the established
terms and conditions of employment . However, because
there were no written rules in existence at the dealership
embodying such working conditions, misunderstandings
with employees occasionally arose whenever the Respon-
dent sought to improve its method of operating with respect
to such matters as the assignment of demonstrators to sales-
men, the Sunday day off schedule , and the holding of sales
meetings . Usually, these complaints were voiced by Richard
J. Daley, the subject of this proceeding , in his capacity as
union shop steward , on the ground that the Respondent's
proposed action reflected unilateral changes in existing
work rules . When so informed , it appears that the Respon-
dent yielded, although it doubted at times the correctness of
Daley's assertions . Except for the testimony discussed be-
low, there is no evidence of union hostility on the part of the
Respondent.
2. Daley's employment, union activity, and discharge
Daley began working as an automobile salesman at the
Respondent's location in September 1967 when the Dodge
agency was run by Hollahan's predecessor. He continued in
that position until his termination by the Respondent on
December 11 under circumstances related below. Conced-
edly, Daley was a superior salesman and, in fact, was con-
sidered for the vacant sales manager post before the
Respondent employed David Leavitt to fill it. He joined the
Union in 1968 and thereafter became active in its affairs as
an organizer , union officer , and a member of the Union's
negotiating team , serving as the spokesman for the
Respondent's employees. In addition, during his employ-
ment with the' Respondent, Daley, as the union shop stew-
ard, aggressively handled employee grievances and
registered his protest with the Respondent if it attempted to
introduce what he considered to be unnegotiated changes in
working conditions.
Against this background, we turn to the events leading up
to Daley's discharge.
a. December 8
On Wednesday morning, December 8, which was Daley's
regular day off, Daley went to the showroom to discuss with
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Henry the refusal of Sales Manager Leavitt to
approve a customer's offer to purchase a 1965 Mustang.
After referring to another proposed deal Leavitt had also
recently rejected,5 Daley explained the reasons why the
Mustang offer was an acceptable one. Henry suggested that
Daley arrange for the customer to return to the store; that
he write up the best offer he could possibly obtain from the
customer; and that he resubmit the offer to Leavitt ,6 inform-
ing him that he (Daley) was acting pursuant to Henry's
instructions.
Thereupon, Daley proceeded to follow Henry 's sugges-
tion and prepared a new offer which he submitted to Leavitt
about 10 o'clock the same morning. Although Daley in-
formed Leavitt that he was acting on Henry's instructions,
Leavitt declined to consider the offer and told him to take
it to Henry for his approval. Daley then went to Henry's
office followed by Leavitt. There, in Henry's presence, an
angry exchange of words developed between Leavitt and
Daley. Leavitt quoted Daley as telling him that Henry had
already accepted the Mustang deal, while Daley corrected
Leavitt, insisting that he had reported to Leavitt that Henry
directed him to write up the deal and present it to Leavitt.
This evoked Leavitt's angry response that Daley was a
"goddam liar." Daley, in turn, asked Leavitt whether he was
doing this to him on account of his union activity and thus
force him to leave his job. Again, Leavitt called Daley "a
goddam liar" and ordered him to shut his mouth or he
would do it for him.' As if to give emphasis to his remarks,
Leavitt kept shaking his right hand with index finger extend-
ed in front of Daley's face with the result that Leavitt's
finger accidentally touched Daley's chin. Daley reacted by
knocking Leavitt's hand down. Turning to Henry, Leavitt
declared that Daley had hit him and was fired. Leavitt then
repeated to Daley that he had hit him and therefore he was
fired. On that note, Leavitt left the office. Daley then com-
mented to Henry that Henry had witnessed this incident
and knew very well that it was actually Leavitt who hit him
(Daley). Henry, however, denied seeing a thing , claiming
that he was looking at his desk pad at the time .8
After this incident, Daley remained in Henry's office
while Henry went to see Leavitt concerning the Mustang
deal. As a result of Henry's intercession, Leavitt finally
approved the offer and Daley consummated the sale with
the customer. On leaving the store, Daley informed Henry
that he would see him the following afternoon at 2 o'clock,
his regularly scheduled reporting time . Henry responded
that, since Daley had been discharged by Leavitt, he would
have to talk to Leavitt about returning to work. As Thurs-
day was Leavitt's day off, Daley asked Henry to request
Leavitt to come to the store on that day so that he (Daley)
could discuss his situation with Leavitt. This Henry did?
s It is undisputed that Leavitt, however , had approved other customer
offers submitted by Daley.
6 Henry testified that he proposed this procedure in order to avoid overrul-
m4 Leavitt until the last moment.
Leavitt is about 70-71 years old, weighing approximately 175 pounds
Daley is 32 years and weighs about 245 pounds.
s At the hearing , Henry admitted witnessing this episode but stated the
contrary to Daley because he was not interested in getting involved in any
further discussions with Daley over the matter
9 My findings concerning the December 8 episode are derived from those
Later in the evening, Daley recounted the incident to the
Union's general secretary-treasurer, Griffith.
b. December 9
There are different accounts concerning the episode of
Daley's reinstatement on Thursday, December 9. Accord-
ing to Daley, the following transpired in Leavitt's office:
When he reported for work on that day, he brought up the
subject of his employment status with Leavitt. Leavitt stated
that Daley had been discharged and that there was nothing
to talk over, adding that "[w]e called downtown 10 and they
said we could fire you. We've got you, kid." Daley then
asked for the reason for the discharge and received Leavitt's
answer that Daley had hit him and that he would not stand
for it. When Daley denied striking him, Leavitt retorted that
if Daley wanted to remain on the job, he would have to
concede that he had. At this point, Henry entered Leavitt's
office. Addressing Henry, Leavitt declared that Daley
agreed he misunderstood what had happened and was sorry
he hit Leavitt. Leavitt then asked Henry for his opinion and
Henry replied that he did not go for hitting a manager.
Daley again denied striking Leavitt and accused Leavitt of
hitting him. When Henry interjected that he would swear
that he witnessed the assault, Daley reminded Henry that
during the incident the day before he called Henry's atten-
tion to the fact that he saw Leavitt hit him but that he
(Henry) denied witnessing the incident because he was look-
ing at his desk pad at the time. Leavitt, nevertheless, insisted
that Daley admit that he had hit him if he wanted to talk
about continuing in the Company's employ. Daley finally
conceded, stating that he wanted to work there because he
had been with this Dodge agency for some 4 years and had
many repeat customers.
This did not end the conversation, according to Daley's
account, but led to comments by Leavitt concerning his
union activity. Prefacing his remarks with the statement
that, if they were repeated, he would disavow having made
them, Leavitt declared that the Company had nothing but
trouble from Daley. In response, Daley explained that this
trouble stemmed from his activity as a union steward in
representing fellow salesmen with respect to their com-
plaints against the Company. Leavitt called Daley "an ag-
itator," saying that the salesmen would never have
complained if he had not done it for them and that until this
occasion "his hands [had been] tied but from here on out
things would be different." Leavitt also told Daley that he
"had a twisted mind with this union stuff" to which he was
dedicated and advised him to "forget the union stuff and
... [he] would make money." In the course of his tirade,
Leavitt also mentioned that Henry's son was ready to go to
work on the floor; that he didn't care how the Union felt
about it; that the three of them (apparently referring to
Henry, his son, and himself), would run the store; that the
Company could not afford the expense of having demon-
strators, and paying salaries and commissions; that the
Company would do whatever was required to run the store,
parts of the testimony of Daley, Leavitt, and Henry which I believe probably
reflect the events on that day Whatever testimonial vanances there are, they
are of no consequence to the issues in this case
10 There is no testimony as to who or what was meant by "downtown."
BOB HENRY DODGE, INC. 83
even if it had to get rid of all the salesmen; and that Daley
"should forget the union stuff and cooperate-[and he]
would make money." Thereupon, Leavitt told Daley that he
would be permitted to return to work on probation until the
first of the year provided he cooperated. Leavitt further
noted that, unlike the situation in the past when the
Company's hands were tied, now he would be able to fire
him at any time . The conversation ended with Leavitt prais-
ing Henry as the finest and fairest person and inquiring of
Daley whether he would cooperate. Replying that he want-
ed to remain in the Company's employ, Daley resumed
work.
Leavitt, who was no longer with the Company at the time
of the hearing, and Henry gave abbreviated versions of this
episode. Leavitt testified that, as requested by Henry, he
accorded Daley the courtesy of coming to the store on
Thursday, December 9, Leavitt's customary day off, to talk
to him about the events of the preceding day. Daley told
Leavitt that, with the approaching Christmas holiday and
being a married man with a family, he would like to come
back to work. Leavitt answered that he had no objection to
Daley's return but that he had "a couple of things . . . [to]
get straightened out." One was the problem of Daley and
another salesman, Robert Baldwin, being off on Wednes-
days, which will later be discussed, and that both of them
were not taking their turn to work on Sundays when three
men were needed on the floor. Apparently, Leavitt was
satisfied that those problems would be rectified for, accord-
ing to his testimony, he reinstated Daley. Leavitt further
testified that, while Daley was still in his office, Henry
joined them and was advised by Leavitt that he had talked
the matter over with Daley and that, as Christmas was
coming and Daley had a family and needed the job, he
decided to put him back to work. Henry's response was only
that Daley would have to return on a probationary basis
and that there would be no other punching incidents. Leav-
itt also testified that, although Henry directed him to send
a letter to Daley confirming his reinstatement as a proba-
tionary employee, no such letter was written because Daley
was terminated 2 days later.
Henry testified that he was called into Leavitt's office
after Leavitt and Daley had settled their differences and, in
Daley's presence, was informed of this fact by Leavitt who
made particular reference to the problem of the two men
(Daley and Baldwin) being off on Wednesday. According
to Henry, having two men off on Wednesday contributed
to the shortage of a salesman on Friday night duty. Henry
further testified that Leavitt stated that the men "were going
to work the schedule the way he had asked them to" and
that he was therefore rehiring Daley on probation. Henry
also testified that he then told Leavitt to make sure to send
Daley a letter concerning his probation.
Neither Leavitt nor Henry specifically controverted
Daley's testimony regarding Leavitt's criticism of Daley's
union activity, although Leavitt denied ever mentioning the
Union to anyone except once in the course of the December
8 episode when Daley brought up the subject. From a care-
ful appraisal of the testimony of all the witnesses concerning
the December 9 episode, I find that the Daley's narration
is more reliable and convincing than the versions given by
Leavitt and Henry. Daley did not impress me as one who
would contrive the detailed discussions to which he testi-
fied. Indeed, if his testimony were really fabricated, I doubt
that he would have testified to Henry's presence during a
critical part of the conversation and thus place Henry in a
position to contradict him, which Henry did not do. More-
over, considering the heated altercation between Leavitt
and Daley the day before, I have no doubt that more tran-
spired on December 9 than appears in Leavitt's and Henry's
testimony. Accordingly, I credit Daley's account of the lat-
ter incident.
c. December 10
There is a sharp conflict in testimony as to whether Daley
had any conversation at all with Leavitt on Friday, Decem-
ber 10, regarding Daley's regular Wednesday day off. This
is Daley's testimony: About 9 in the morning of that day, tl
when he reported for work, Leavitt greeted Daley with the
remark, "Get in here , kid. I'm not through with you yet,"
and ushered him into Leavitt's office . In answer to Daley's
question as to what he meant, Leavitt stated that things were
different as now he could fire him-something he was un-
able to do before. Leavitt thereupon expressed his disap-
proval that both he and Robert Baldwin , another salesman
and vice president of the Union, had Wednesdays off.t2
Daley countered that he could not understand what objec-
tion Leavitt could possibly have to that arrangement since
the showroom floor had always been adequately covered on
Wednesday with two men in the morning and three in the
evening. Leavitt answered that that had nothing to do with
it; that it was he who would determine what their working
hours would be; and that he wanted only one of them to be
off on Wednesday and the other on Thursday. Leavitt also
told Daley to "[fo]rget about . . . doing . . . [their] union
stuff together" and to "[c]ooperate, . . . [f]orget this union
stuff, and . . . [he would] make money." Leavitt closed the
conversation with the instruction that Daley inform him
who was going to take Thursday off. Daley replied that he
would speak to Baldwin and then advise Leavitt.
Leavitt testified that the subject of the Wednesday day off
was raised by him in his conversation with Daley on Decem-
ber 9. He further testified that on that occasion he told
Daley that the Company was handicapped because he and
Baldwin were off on Wednesday; 13 that he proposed that
they decide between themselves who would change his day
off to Thursday; that Daley asked for the opportunity to
talk it over with Baldwin before giving Leavitt their answer;
1 i Although at one point in his cross-examination , Daley indicated that this
conversation occurred on Thursday, it is clear from his entire testimony that
he meant Friday , December 10.
12 Daley was assigned Wednesday as his offday about 6 months before the
events herein when another salesman who became sales manager relin-
quished that day off. Baldwin has enjoyed Wednesdays off since before that
time.
13 Leavitt did not indicate in what way the Company was handicapped by
Daley and Baldwin being off on the same day and why he wanted one of
them to work on Thursday. Henry, whose testimony is not clear whether the
subject of the Wednesday offday was mentioned while he was present during
the December 9 conversation , testified that it was necessary to have only one
man off on Wednesday because the Company was short one man on Friday
night. However, there is other testimony that the floor was adequately staffed
Friday night.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Leavitt acceded to this request . As indicated above,
I find Daley's testimony more reliable and I credit it, al-
though I further find that it is immaterial to a determination
of the issues in this case whether the subject of the Wednes-
day offday was discussed on December 9 or 10.
After his conversation with Leavitt, Daley told Baldwin
that Leavitt wanted one of them to change his offday to
Thursday. Baldwin stated that it was impossible for him to
do so.
d. December 11
About 9 o'clock Saturday morning, the salesmen assem-
bled in Leavitt's office for the regular weekly sales meeting.
It was on this occasion that Daley was terminated under the
following circumstances : Before the meeting started, Daley
announced to Leavitt that, in his capacity as union steward
representing himself, he did not intend voluntarily to
change his day off as Leavitt had ordered; that to make such
change Leavitt should bargain with the Union; and that if
Leavitt acted unilaterally in that respect , he (Daley) would
file charges with the Board . Continuing, Daley then accused
Leavitt of making untrue statements that he had hit Leavitt
during the Wednesday episode when , in fact , it was Leavitt
who had hit him. For this reason , Daley stated , he would
also file a charge on that ground in order to protect himself.
These remarks provoked Leavitt to terminate Daley on the
spot, declaring that Daley had been fired the previous Wed-
nesday for hitting him and that he could file all the charges
he wanted to. Daley left the office only to return to tell
Baldwin to assume his union steward functions in his ab-
sence.14
B. Concluding Findings
1. With respect to the discharge
It is the General Counsel's position that the evidence
establishes that Daley was unlawfully discharged in reprisal
for presenting a grievance on his own behalf and to discour-
age employee reliance upon , and membership in, the Union.
Vigorously denying that such was its motivation , the Re-
spondent argues that it was actually Daley's announced
refusal to change his day off , as management in its business
judgment had ordered him or Baldwin to do,15 that brought
about his dismissal after having been reinstated and placed
on probation as a result of his prior asserted misconduct.
The question whether an employee was illegally terminat-
ed because of his union or concerted activities is not suscep-
tible of easy determination as it involves an inquiry into an
employer's state of mind . In resolving this question , there-
14 The foregoing findings reflect the sum and substance of the testimony
of the participants and witnesses to this incident . Whatever vanances there
are in the different accounts , they are of minor importance and may be
attributed to faulty recollection or exaggeration . Specifically, I do not believe
Leavitt's testimony that Daley also expressed the hope for Leavitt 's death.
If this remark were made , I am sure Leavitt would have made this an
additional ground for discharge , which he did not do.
15 As indicated above, Sales Manager Leavitt actually had told Daley to
arrange with Baldwin, the other salesman who was also off on Wednesday,
which one would change his offday to Thursday.
fore , all the facts and circumstances surrounding the sepa-
ration must be carefully appraised with due recognition
being accorded to the settled principle that an employer
may terminate an employee for any reason , good, bad, or
indifferent, provided he is not motivated by the employee's
union or concerted activities . Of course, it is equally well
established that the existence of a "justifiable ground for
dismissal is no defense if it is a pretext and not the moving
cause. "t6
I find, on the basis of the evidence before me , that the
General Counsel has failed to sustain his burden of proving
that Daley's discharge was prompted by his union or con-
certed activities . There is absolutely nothing in the record
that at the time of the scheduled December 11 sales meeting
Sales Manager Leavitt contemplated terminating Daley. In-
deed , it appears that Leavitt had no reason to believe that
Daley and Baldwin would not abide by his wishes that they
arrange between themselves who would change his offday
from Wednesday to Thursday. Therefore, when Daley defi-
antly announced in the presence of the assembled salesmen
that he declined to comply with Leavitt's order and charged
Leavitt with making untrue statements that Daley had hit
him during the Wednesday incident , Leavitt impulsively
reacted by discharging Daley on the spot. In these circum-
stances, I am unable to find in this conduct a determination
by Leavitt to penalize Daley for presenting a grievance or
for his aggressiveness in performing his steward functions or
for his union leadership , as the General Counsel urges. To
be sure , Daley had a statutory right, as union steward, to
grieve on his own behalf regarding the change in his day off.
But this did not entitle him to disobey a legitimate order of
management . It was ill advised for Daley not to accept the
change and then to submit his complaint to management or
to file an unfair labor practice charge with the Board if he
believed that the Respondent 's unilateral action violated its
bargaining obligation. By taking matters in his own hands,
Daley rendered himself vulnerable to discipline . The fact
that Leavitt might have acted unreasonably or too harshly
in imposing the extreme penalty of discharge for Daley's
offense is not the issue before the Trial Examiner or the
Board . It is axiomatic that mere unreasonableness or severi-
ty of an employer 's personnel action is insufficient to estab-
lish unlawful discrimination.
It is not without significance that until the events imme-
diately preceding the discharge , there is no evidence that the
Respondent harbored any hostility toward the Union. In-
deed , the contrary appears to be the case . From the moment
the Respondent succeeded to the Dodge dealership, it ac-
knowledged the Union's bargaining status established in
representation proceedings completed during the period of
its predecessors ' operation of the business at the
Respondent 's location ; participated in the then pending
contract negotiations ; and scrupulously withheld introduc-
ing new operating procedures in its business when informed
by Daley and others that such procedures amounted to a
unilateral change in preexisting working conditions. It is
true that Leavitt's earlier criticism of Daley for his active
representation of employee and union interests which, as
found below , exceeded permissible bounds , might suggest
1b N LR B. v. Solo Cup Company, 237 F.2d 521, 525 (C A 8, 1956).
BOB HENRY DODGE, INC. 85
that Daley's discharge was discriminatorily motivated.
However, it appears that those statements were uttered
more out of pique resulting from Daley's repeated frustra-
tion of management's efforts to improve its operations rath-
er than as an unalterable warning to Daley that he risked
discharge if he did not heed Leavitt's disapproval of his
union involvement. Moreover, if the Respondent were real-
ly discriminatory-minded, it is difficult to believe that the
Respondent would have reinstated Daley on December 9
after his termination for his alleged assault on Leavitt. In
fact, the December 8 termination is not even alleged by the
General Counsel to violate the Act. In any event, the most
that can be said about Leavitt's remarks in question is that
they cast suspicion on the Respondent's motives underlying
the final discharge. However, suspicion is hardly an
adequate basis upon which to predicate an unfair labor
practice finding.
In sum, I find that the General Counsel failed to establish
by a preponderance of the evidence that the Respondent
discharged Daley in violation of Section 8(a)(1) and (3) of
the Act. Accordingly, I recommend the dismissal of the
relevent allegations of the amended complaint.
2. With respect to interference, restraint, and coercion
As found above, Leavitt sharply criticized Daley's perfor-
mance of his steward functions in representing fellow sales-
men and presenting their grievances and complaints to
management ; called him an agitator who induced salesmen
to make complaints they would not otherwise have made;
chided him for his involvement in the union cause; advised
him that, if he discontinued his union activity and cooperat-
ed with management, he would make money; and impliedly
threatened hisjob secunty if he persisted in his union activi-
ty. Plainly such statements , in their totality, have an inhibi-
tory effect on employees in the exercise of their statutory
nghts and violate Section 8(a)(1) of the Act.
IV THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
like and related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The 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 meaning
of Section 2(5) of the Act.
3. By criticizing Daley for performing his steward func-
tions in representing employees and presenting their griev-
ances to management and for his involvement in union
activities; by advising him that, if he discontinued his union
activity and cooperated with management, he would make
money; and by impliedly threatening his job security if he
persisted in his union activity, the Respondent interfered
with, restrained, and coerced employees in the exercise of
their statutory rights within the meaning of Section 8(a)(1)
of the Act.
4. The Respondent did not discharge Daley in violation
of Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]