Burns Ford, Inc.

National Labor Relations Board - Board Decisions

May 26, 1970

182 N.L.R.B. 753 (N.L.R.B. 1970)

BURNS FORD, INC.
Burns Ford, Inc. and Retail Clerks Union, Local #445,
Retail Clerks International Association , AFL-CIO.
Case 9-CA-5154
May 26, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 4, 1969, Trial Examiner Ivar H. Peterson
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, pursuant to the Board's Order dated Decem-
ber 22, 1969 (corrected by Order dated December 23),
granting the Respondent's motion to remand the case
to the Trial Examiner, dated December 16, 1969, for
consideration of certain exhibits, the Trial Examiner
issued the attached Supplemental Decision dated January
8, 1970, in which he adhered to his previous Decision.
Thereafter the Respondent and the General Counsel
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the Supplemental Decision, the exceptions, the briefs,
and the entire record in this case, and hereby adopts
the findings,' conclusions, and recommendations of the
Trial Examiner, except as modified herein.
1. The Respondent excepts to the Trial Examiner's
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act by laying off the eight salesmen at the
close of business on April 22. We find merit in this
exception.
In reaching this conclusion, the Trial Examiner relied
on his findings of unlawful interrogation and threats
made by the Respondent; the Respondent's hostility
to its employees' picketing of another automobile dealer;
and his rejection of the Respondent's asserted economic
reasons for the layoff, including the overhead cost of
salesmen , his doubt of managerial employees' sales abili-
ty, and the fact that a layoff by seniority rather than
by merit, would not improve the Respondent's sales.
The Respondent contends that the Trial Examiner failed
to analyze properly the record evidence, and therefore
could not and did not consider the Respondent's lawful
' These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted After careful review of the record , we conclude that the
Trial Examiner 's credibility findings are not contrary to the clear prepon-
derance of all relevant evidence . Accordingly , we find no basis for
disturbing those findings Standard Dry Wall Products, 91 NLRB 544,
enfd 188 F.2d 362 (C A 3)
753
business motive for the layoff. The Respondent points
out that its stated reason for the layoff, that sales
were off in comparison to the previous year, was not
considered by the Trial Examiner, who found that sales
had not fallen drastically in the first 4 months of 1969.
We agree with the Respondent's contention that a com-
parison of the sales for each month in 1969 with the
corresponding month in previous years does show that
there was a serious decline in sales. The table set
forth on page 2 of the Trial Examiner's Supplemental
Decision shows that in March 1969, 116 new cars were
sold, as compared to 239 in 1968 and 200 in 1967.
Total units sold were 592 in 1968, 529 in 1967, and
only 360 in 1969. We find that there is substantial business
support for the Respondent's position that because of
declining sales it took various measures designed to
make its operations more economical and to boost sales,
measures which are briefly noted by the Trial Examiner,
but which he does not consider -in connection with
the decline in sales compared to previous years.
We find significant the steps taken by the Respondent
prior to the layoff to cut expenses and to increase
sales as supportive of its lawful business motive in
laying off the eight employees on April 22. In December
1968, the Respondent instituted managerial changes in
its parts and service departments, which resulted in
greatly increased sales for the parts department, and
at least no decrease in service department sales. In
addition, in both December 1968, and January 1969,
numerous changes were made in the managerial structure
of the sales department, which resulted in the consolida-
tion of functions and the cutting of expenses in that
department. However, these changes did not stop the
decrease in sales. Therefore, in an early February sales
meeting of the employees, the drop in sales was discussed
and the need for added effort was stressed. In a second
meeting in mid-February, the Respondent put into effect
a system of graduated cash bonuses for salesmen meeting
their monthly objectives as set by themselves. A further
meeting was held at the end of the month, to discuss
the employees' obviously unrealistic sales projections,
since actual sales amounted to only one-third of the
projections, and the employees were told that the situa-
tion could not continue, as the expense structure was
too high considering the volume of car sales. During
this same period, the Respondent reduced its inventory,
thus realizing a savings through the lowering of bank
interest payments on automobiles in stock, and increased
advertising expenditures in an effort to increase sales.
In spite of these efforts, however, sales continued to
decline. In April, Respondent decided to lay off certain
employees.
Projecting future sales at 300 units per month, the
Respondent took Ford Motor Company's suggested
standard of 12 sales per month per salesman, and con-
cluded that a sales force of 17 full-time salesmen, and
8 managerial personnel who also sold, would be
sufficient. Based on these guidelines, the Respondent
decided to lay off eight salesmen. On advice of counsel,
instead of laying off on the basis of productivity, the
eight junior salesmen were informed on April 16, that
182 NLRB No. 113
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would be laid off at the close of business on
April 22. The fact that the Respondent instead chose
seniority as the basis for laying off salesmen does not
establish discrimination. We find this basis an objective
criterion. Furthermore, we note that the Respondent
was acting on advice of counsel, who apparently consid-
ered seniority to be the criterion preferred by the Union.
In view of the foregoing, we find, contrary to the
Trial Examiner, that the Respondent established.a lawful
business motive for laying off the eight employees on
April 22, and that the General Counsel failed to refute
this motive, or to show that it was not the true motive
and that there was an additional unlawful motive.
2. We also find merit in the Respondent ' s exception
to the Trial Examiner's finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by not notifying
the Union of the impending layoff before decision there-
on was made and by not affording the Union a meaning-
ful opportunity to discuss the layoff before making it.
On April 16, the employees and the Union were notified
of the layoff, which was to be effective on April 22.
The Trial Examiner's characterization of this notification
as a fait accompli is unjustified. As we noted above,
the Respondent was in a period of declining sales and
was attempting to reverse this trend through various
means. The decision to lay off employees was made
about a week before April 16. Thereafter, the number
of employees to be laid off, and the method of their
selection , was determined , and the employees and the
Union were then informed on April 16. There was
no inordinate , delay involved in this time sequence,
nor was the, announcement a fait accompli,, since it
was not to take effect for another week.
t Further, the opportunity existed for the Union to
discuss the layoff between April 16 and April' 22,' but
it was not until April 21 that the'Union contacted the
Respondent ' s attorney to arrange a meeting for the
following day. The Respondent did meet with the Union
twice on the 22nd, and the record reveals that the
reason that nothing resulted from these meetings was
no more attributable to the Respondent than it was
to the Union. The Respondent had given the Union
a week's notice, at the end of which the Union had
very little to say except to ask how the Respondent
justified its claim of economic motivation for'the layoff,
especially regarding the expense of keeping salesmen
on the payroll. Although the Union testified that the
Respondent did not offer any proof of the expense
involved ' in keeping salesmen, and the Respondent's
testimony affirmed this fact, the record also shows that
the Union made no request for this information in the
afternoon meeting on April 22. Thus, the opportunity
did exist for a discussion of the layoff, and on the
facts presented, the Respondent cannot be found to
have violated the Act where nothing resulted from the
discussions prior to the layoff.
The Respondent having given reasonable notice to
the Union of the impending layoff, and having afforded
the Union an oportunity for discussion we find that
the Respondent did not violate Section 8(a)(5) and (1)
of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 6 and 7, and renumber
Conclusions of Law 8 and 9, as 6 and 7, respectively.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, as modified below, and
orders that Respondent, Burns Ford, Inc., West Buechel,
Kentucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 1(b).
2. Delete from paragraph 1(c) the words "discharging
or.''
3. Reletter paragraphs 1(c) and 1(d), as paragraphs
1(b) and 1(c), respectively.
4. Delete the following names from the list of names
in paragraph 2(a): Jack Ogle, Ernest Baker, Charles
Waldron, Julian Stevens, Gay Cannon, Garland Hunter,
and James Hughes.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed, and that jurisdiction herein is
retained to reconsider and modify the provisions of
this Order if made necessary by circumstances not now
apparent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON ', Trial Examiner : Upon charges
and amended charges duly filed by Retail Clerks Union,
Local #445, Retail Clerks International Association,
AFL-CIO, herein called the Union ,' the General Counsel
of the National Labor Relations Board , by the Regional
Director for Region 9, issued a complaint on June 17,
1969, alleging that Burns Ford , Inc., herein called the
Respondent , had engaged in unfair labor practices viola-
tive of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended . Briefly stated, the
complaint , as amended at the hearing , alleged that the
Respondent by named supervisory employees had violat-
ed Section 8(a)(1) by certain conduct , including unlawful
interrogation and threatened reprisals against employees;
had violated Section 8 (a)(3) by laying off or terminating
seven named employees on April 22, 1969, because
of their activities on behalf of, sympathies for, and mem-
bership in the Union ; on April 23 and 24 , 1969, had
discharged 11 named employees because of their mem-
bership and activity on behalf of the Union and because
of their having engaged in concerted activities; and
had unlawfully refused to bargain in violation of Section
8(a)(5) by refusing to discuss with, the Union the decision
' The original charge was filed on April 28, 1969; the amended charge
was filed on June 4, 1969
BURNS FORD,, INC.
to lay off and/or terminate the employees mentioned
above. In its answer, the Respondent denied the commis-
sion of any unfair labor practices.
Pursuant to notice, I conducted a hearing on Septem-
ber 24 and 25, 1969, in Louisville, Kentucky, at which
all parties were represented by counsel and were afforded
full opportunity to participate in the hearing and adduce
relevant evidence bearing on the issues. Thereafter the
General Counsel and the Respondent filed briefs, which
have been carefully considered.2
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Delaware corporation , maintained,
at times material , a place of business at West Buechel,
Kentucky , where it engaged in the wholesale and retail
sale of new and used automobiles, trucks, and recreation-
al vehicles . During the calendar year preceding issuance
of the complaint , the Respondent had a direct inflow
of parts, equipment, and vehicles , valued in excess
of $50,000, which it purchased and caused to be shipped
to its West Buechel location directly from points outside
the State of Kentucky. I find that at all times material
the Respondent was engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.3
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local #445, Retail Clerks Inter-
national Association , AFL-CIO, is a labor organization
within the meaning of Section 2(5).of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events and Issues
During the latter part of 1968 and continuing into
1969 the Union conducted an organizational campaign
among various automobile dealers, in the Louisville area,
including the Respondent. Pursuant to a representation
petition filed by the Union, a secret ballot election
was conducted by the Regional Director on March 26
among the Respondent's employees in an appropriate
unit.4 The Union won the election 23 to I and was
2 The unopposed motions of counsel for the Respondent and counsel
for the General Counsel to correct the official record are hereby granted
7 On July 9, 1969 , the Respondent surrendered its franchise and
thereafter was engaged in winding up its corporate affairs. According
to the statement of counsel for the Respondent at the hearing, the
Respondent anticipated that it would be completely out of business
and dissolved as of December 1, 1969, at the latest It was on the
basis of these facts that the Respondent moved to dismiss the complaint
I denied the motion
" The unit, admittedly appropriate , is as follows- All new- and used-
car, truck, recreational vehicle and fleet salesmen at the Respondent's
West Buechel , Kentucky , location , excluding office clerical employees,
sales solicitors , sales assistants , financing assistants , all other employees,
755
certified as the exclusive bargaining representative of
the employees in the appropriate unit on April 3, 1969.
According to the disputed testimony of several of
the laidoff salesmen , considered in more detail below,
supervisory personnel during the period prior to the
election questioned them about their union activities
and interests and, both then and following the election,
made statements to the effect that the Respondent would
not enter into a contract with the Union but would
close its business instead.
On April 16, R. J. Burns, vice president of the
Respondent, sent a telegram to William Philpott, Interna-
tional representative of the Union, stating that because
of "a drastic decrease in sales it is necessary for us
to have a layoff" and went on to state that eight salesmen,
whom he named, "with the least seniority," would
be laid off effective April 22. He concluded by stating
that "sales have been so far off in comparison with
last year that it is necessary for economic reasons to
do this." On the same day, each of the eight men
being laid off was given with his paycheck a note
announcing the layoff effective at the close of business
April 22 and that it was "not a discharge and in the
event business improves, you will be recalled in order
of seniority." There had been no advance notice to
or discussion with the Union regarding the necessity
for a layoff or the selection of salesmen to be laid
off.
Philpott, who had been out of town, received the
April 16 telegram on Monday, April 21, and immediately
telephoned Attorney John Sandidge, who represented
the Respondent, to arrange a meeting with respect to
the imminent layoff. During the morning of April 22,
Vice President Burns and Attorney Sandidge met with
Philpott and two employees representing the Union,
Gay Cannon and Jack O'Bannon. Burns attempted to
justify the layoffs on the ground of economic necessity,
occasioned by a serious drop in sales during the past
several months. He also asserted that although salesmen
were paid on commission it nonetheless cost the
Respondent in the order of $225 per month to maintain
a salesman on the payroll, referring to the cost of
demonstrators, fringe benefits, and insurance. The union
representatives were not satisified with his attempted
justification, since he had no records or data with him,
other than a sheet of paper containing the names of
the salesmen with their dates of employment, which
he stated had been used in determining to lay off the
eight junior salesmen. It was arranged that representa-
tives of the parties would meet again later that afternoon.
Burns did meet with Philpott, Douglas Dougherty, anoth-
er International representative of the Union, Cannon
and O'Bannon, and William Crowe, another salesman
of Respondent. Burns again contended that economic
considerations necessitated the layoff. According to his
testimony, he had brought with him certain data which
would show the decline in sales and the loss on sales
of demonstrators, but these data were not shown to
the Union representatives because, so he testified, they
all guards, professional employees, assistant sales managers, and all
other supervisors as defined in the Act
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not wish to see them. On the other hand, the
representatives of the Union testified that Burns prod-
uced no data and did not offer to produce any. The
meeting ended on the note that if the Respondent persist-
ed in the layoff the Union would have no choice but
to take economic action against the Respondent.
The morning of April 23 the laidoff salesmen picketed
the Respondent's premises. Other salesmen , who had
not been laid off, attended a sales meeting that morning.
Those who were scheduled to perform their customary
duties on the showroom floor during the first shift,
from 9 until 3, did so; the others, who were scheduled
to work on the showroom floor beginning at 3 p.m.,
joined the pickets in the morning . In the afternoon
the' salesmen who had worked in the morning joined
the picket line. Shortly after they commenced picketing
a representative of management approached each' of
them and asked for the keys to the .demonstrator the
salesman had assigned to him. When they were next
scheduled to report for work, after having engaged
in picketing, they were informed by 'management that
they were laid off. Thus, as salesman Earl Evans testified,
Burns told him, when he reported for work after having
picketed, "Earl, you can't work in here and walk out
there." Burns testified that when he saw the salesmen
who were off duty carrying picket signs and asking
members of the public to honor the picket line he
reached a decision that he would not let them come
back into work because "they could not conduct business
in a normal way by stopping people in the morning
and wanting to sell them in the afternoon." A total
of 11 salesmen were laid off on April 23 and 24 (named
in paragraph 8 of the complaint) who participated in
picketing the Respondent's premises during their off-
duty hours.
On April 26, Vice President Burns wrote to Philpott
stating that the Respondent was "willing to take the
men back who walked out" (referring to the salesmen
who engaged in the off-duty picketing) "and will recall
the other eight men, when business conditions improve,
on a seniority basis." In a letter dated May 5, Burns
reiterated the same position. On May 6, Burns wrote
to each of the salesmen that had engaged in 'off-duty
picketing, enclosing copies of his letters of April 26
and May 5 to Philpott, and stating:
To be absolutely certain that you understand
that we tendered an unconditional offer to you
to return to work, this communication is a request
to you to return to work immediately under the
same terms and conditions that were in effect prior
to the time of your departure.
None of the men returned to work.
As a rebuttal witness Philpott testified that after the
off-duty picketing salesmen had been suspended he had
conversations with Burns who took the position that
he was, willing to take back the salesmen who engaged
in off-duty picketing but not those who had been, laid
off on April 22.
The issues to be determined are:
1. Whether the Respondent violated Section 8(a)(1)
of the Act by statements of supervisory personnel,
questioning employees concerning their union activities
and threatening reprisals;
2. Whether the layoff of the salesmen on April 22
was in reprisal for their having engaged in concerted
activities or was occasioned by economic considerations;
3. Whether the salesmen who engaged in off-duty
picketing were engaged in protected activity and were
suspended therefore; and
4. Whether the Respondent unlawfully refused to bar-
gain with the Union concerning the ' decision to lay
off and/or terminate the employees who were laid off
on April 22 and those who were laid off on April
23 and 24.
B. Interrogation and Threats
The General Counsel adduced testimony from a num-
ber of salesmen regarding conversations they had with
supervisory personnel relating to the Union and employ-
ee union activities which, it is contended, constitute
violations of Section 8(a)(1) of the Act. As is not surpris-
ing, in most instances the supervisors denied the remarks
attributed to them, and it therefore becomes necessary
to make credibility determinations:
1. Donald Thompson
Ernest Baker, who returned to the Respondent's
employ in July 1968 as assistant new-car sales manager,
a position held until March 1, 1969, when he became
a rank-and-file salesman, testified that on January 10
he and Donald Thompson, the assistant used-car sales
manager, were discussing the possibility, of a union
being accepted at the Respondent's establishment.
According to Baker, Thompson remarked that he thought
that if a union were voted in Henry Shipp, a vice
president of the Respondent, "would not accept it,
if it meant going out of business first." Thompson
denied that he made any such remark to Baker."
Jack O'Bannon, a salesman, testified that during the
middle of January he overheard Thompson and Donald
Hatfield, the new-car sales manager, discussing who
would and who would not vote for the Union. According
to O'Bannon, Thompson referred to a work schedule
posted in the sales office, containing the names of sales-
men, and said those whose names had a pencil dot
beside them would vote for the Union. The record
does not disclose who made the pencilled markings,
nor does it appear that Thompson or Hatfield was aware
that O'Bannon was within earshot. Thompson was not
questioned about this incident.
William Vittetow, a salesman, testified that he had
several conversations with Thompson regarding the
Union. The first occurred about 2 weeks before the
March 26 election, when Thompson asked how he was
going to vote. Vittetow replied, "Don't. be ridiculous."
Two or three days after the election, so Vittetow testified,
Thompson remarked that although the employees had
5 General Counsel does not contend that Thompson's above statement,
made to another supervisor, was violative of the Act
BURNS FORD, INC.
won the election he did not think that they, would
get a contract ; in another conversation about the same
time Thompson stated that Shipp was working late in
his office and "would beat the Union ." Thompson,
when first asked if he had had a conversation with
Vittetow, stated , "none that I can recollect ." He then
went on to say that Vittetow " is a good friend of
mine " and they "could have " discussed the Union.
He was next asked whether he recalled that Vittetow
had told him that he (Vittetow) was going to vote for
the Union , and answered in the negative . He denied
that he had told Vittetow that Shipp would never sign
a contract with the Union . On cross-examination Thomp-
son stated that he "might have " discussed the Union
with Vittetow but that he had "no idea " what he told
Vittetow in this regard.
Jack Ogle, another salesman , testified that following
the election , on a date he could not fix , Thompson
said that Ogle "wasn 't very much of a man " and neither
were the other salesmen for having voted for the Union,
and added that Shipp would close the doors before
he would sign a contract . Ogle further testified that
between April 16, when he received the layoff notice,
and Aprill 22, the effective date of the layoff , Thompson
brought up the subject of the Union as Ogle and two
other salesmen , Church and Lewis, were in the show-
room . According to Ogle , Thompson said , "You voted
the election [Union] in and you'll be without a job.
You'll be on the streets starving and I ' ll be in here
drawing my paycheck and Henry Shipp will never sign
a contract ." Thompson denied that he had made the
foregoing remarks to Ogle. On April 24 Thompson,
according to salesman Gerald Gnau ' s undenied testimo-
ny, asked Gnau if he was going to join the picket
line. Gnau said he was not, but in fact did later in
the day.
2. Richard Burns
Baker , who until March 1 had been assistant new-
car sales manager but then became a salesman , testified
that on March 7 Richard Burns, a vice president, asked
him if he was aware that there was to be a union
meeting and whether he was going to attend. Baker
replied that he knew of the meeting and that he probably
would attend . About March 20, so Baker testified, Burns
asked him if he felt the vote in the election set for
March 26 would be close . Baker said he thought it
would be close and Burns , according to Baker, "said
that he thought it also would be, close because the
Company felt like they knew who would vote for a
union and who would not ." Burns denied that he ever
asked Baker if he was going to attend a union meeting,
how he thought the election would go , or tell Baker
that he (Burns ) knew who would vote for and who
would vote against the Union.
Beginning about April 11, some of the Respondent's
salesmen during their off -duty hours participated in pick-
eting the premises of another Ford dealer in the Louis-
ville area , Frensley Ford. Following his engaging in
such activity early in April, Baker returned to the
757
Respondent ' s premises . There he was approached by
Burns who, in a "very angry mood ," told Baker that
he considered it a "very lousy thing" to have done
to Frensley Ford and the Respondent . Herschel Borow-
ick, another salesman who picketed at Frensley Ford
at about the same time as Baker , was asked by Burns
upon his return to the Respondent ' s premises whether
he had been picketing at Frensley ' s. When Borowick
replied that he had , Burns "shook his head in disgust"
but said nothing . Burns admitted that he asked Baker
if he had been picketing at Frensley Ford , as Burns
had previously been informed by Frensley , who was
considerably provoked , that some of Respondent ' s sales-
men were engaged in such activity , and that he told
Baker he considered such conduct a "low trick ." Burns
was not questioned about his interrogation of Borowick
about a similar incident. Earl Evans, a salesman , testified
without contradiction that on April 18 or 19 when he
returned to the Respondent ' s premises after picketing
at Frensley Ford Burns stated he "would have made
abet" that Evans "would have been the last guy in
the world to walk a picket line ." According to Evans,
Burns added that he had lost $5 on Evans.
3. Donald Hatfield and William King
Baker testified that on March 10 Donald Hatfield,
the new-car manager , asked him if he had attended
a union meeting ; Baker replied in the negative. Ogle
testified that on March 24 Hatfield asked him who was
going to vote for and against the Union . Ogle's reply,
so he testified, was that he did not know. Hatfield
testified , on direct , that he did not recall asking Baker
if he had attended a union meeting ; on cross -examination
he stated that he did not ask that question of Baker.
Hatfield also testified , when asked whether he had ques-
tioned Ogle as to who would vote for and against the
Union , that he did not ask anyone a question of that
type.
Salesman Gnau testified that after the layoff announce-
ment on April 16 he commented to William King, the
used -car manager , that he felt sorry for James Hughes,
one of the salesmen who had received the layoff notice,
in that Hughes had been turned down for an FHA
loan on account of having been laid off because of
the Union . King , so Gnau testified , "came back and
said, yes, Fred Schaser too." King did not testify.
4. Conclusions
The General Counsel argues that Thompson 's remark
to Hatfield about the middle of January , overheard by
O'Bannon , and indicating that those salesmen whose
names on the posted work schedule had a pencil mark
beside them were union adherents , was'violative of
Section 8 (a)(1)' because it conveyed the impression of
surveillance. I find no merit in this contention. There
is no evidence that Thompson was aware O'Bannon
was within earshot or that he made the remark with
the intention that it should - be overheard . Nor does
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it appear who was responsible for the pencil markings."
Nor do I believe that Burns' remark to Evans, when
the latter returned from picketing at Frensley Ford,
that he (Burns) would have wagered that Evans would
not have walked a picket line, created the impression
of, surveillance and therefore was. violative of the Act
as alleged in the complaint as amended.
With respect to the remarks attributed to Thompson
by Vittetow, Ogle, and Gnau, I am convinced that
the testimony of the three salesmen is entitled to be,
credited over Thompson's denials. Thompson did not
impress me favorably as a witness; he seemed particular-
ly ill at ease when questioned about conversations with
his, friend Vittetow. On the other hand, the General
Counsel's witnesses testified in a forthright manner and
appeared to me to be sincerely endeavoring to tell the
truth. ,
I find that Thompson about 2 weeks before the election
asked Vittetow how he was going to vote and, after
the election, told Vittetow that he did not think the
employees would get a contract and that Shipp would
beat the Union, and that thereby the Respondent violated
Section 8(a)(1) of the Act. I also find as violative Thomp-
son's statement to Ogle that Shipp would close the
doors before he would sign a contract and his.further
remark to Ogle to the effect that by voting in the
Union the employees would be without a job and that
Shipp would never sign a contract. Also violative of
Section 8(a)(1) was Thompson's questioning of. Gnau
regarding whether Gnau was going to join the picket
line. ,
I consider Baker a more trustworthy witness than
Burns and, accordingly, I find that about March 7 Burns
asked Baker if he knew about and was going to, attend
a union meeting. I further find that in a conversation
about March 20 Burns stated he thought the election
would be close for the reason that the Respondent
felt that it knew who would vote for and who against
the Union. By thus questioning Baker and giving the
impression that its employees' activities were under
surveillance, the Respondent violated Section 8(a)(1)
of the Act. However, I find no intimation of reprisal
or unlawful interrogation of Borowick in Burns ' question
whether Borowick had been picketing at Frensley's or
Burns' response in shaking his head in disgust.
Hatfield did not impress me as a reliable witness,
whereas I have heretofore' found that Baker and Ogle
are entitled to be credited. Therefore, I find that Hatfield
on March 10 questioned Baker as to attendance at
a union meeting and about 2 days before the election
asked Ogle who was going to vote for and against
The cases cited in support of General Counsel's contention seem
to me inapposite In The Orchard Corporation of America, 170 NLRB
No 141,• the supervisor, told the employee he had seen a list of the
employees who had attended a union meeting. In Newland Knitting
Mills, 165 NLRB 788, the supervisor asked the employee, who had
been to a union meeting and had her car parked outside, where her
car had been parked on that night. In Sanitary Bag & Burlap Company,
Inc , 162 NLRB 1648 the supervisor' s statement was that he knew
who had started the union movement and who belonged to it
the Union. Such interrogation, I find, was violative
of Section 8(a)(l) of the Act.
I am persuaded that the testimony of salesman Gnau,
attributing an antiunion remark to King, the used-car
manager, is too insubstantial to warrant a finding of
violation. The, most that appears is that, after Gnau
had said he felt sorry for Hughes who had been turned
down for an FHA loan on account of having been
laid off because of the Union, King answered "yes,
and Ffed Schaser too." It 'is unclear whether King
was'agreeing with Gnau's concern for Hughes and adding
that Schaser was in the same condition, or indicating
that he shared Gnau's opinion that Hughes had been
laid off because of the Union..
C. The April 22 Layoffs
As set forth above, the eight salesmen most junior
in length of service were notified on April 16 that they
were laid off as of the close of business April 22.
The notification to the men as well as the telegram
sent that day to the Union, attributed the layoff to
decreased sales and, stated that when business improved,
the men would be returned to work in ,order of seniority.
The General Counsel contends that the layoffs were
in reprisal for the salesmen's concerted activities, where-
as the Respondent insists that they were necessitated
by a drastic decline in sales.7
Vice President Shipp testified that during the latter
part of November 1968 and the first part of December
management became greatly concerned about the down-
ward trend in sales. Effective December 1, according
to Shipp, the Respondent replaced the service depart-
ment manager and the parts department manager,
changes which resulted in improvements in sales in
both departments. In the sales department, effective
December 1, the Respondent merged the job of general
sales manager with the position of vice president held
by Burns. Evans, formerly used-car manager, became
a salesman, and King, formerly general manager , became
used-car manager. According to Shipp, these changes
resulted in a monthly saving of about $1,000 in manage-
ment expense. At the end of January the new-car manag-
er, Don Collini, resigned and his duties were divided
between Shipp and Burns. Baker gave up his position
as assistant new-car manager and became a salesman.
The resignation of Collini and the change in status
of Baker effected a monthly saving in management
expenses of $1,750, so Shipp testified., However, sales
of automobiles continued to decline. ,
At a sales meeting on February 3, Shipp discussed
the drop in sales and the need for the salesmen to
make more telephone calls and added efforts to increase
sales. At another sales meeting early in February, the
Respondent, according to Shipp, put into effect a system
of graduated cash bonuses for the salesmen if they
met the sales objectives for the month as set by them-
' Only seven of the eight laid off are named as discriminatees in
the complaint (par 6) The one omitted is Fred Schaser; the reason
therefor is not apparent in the record
BURNS FORD, INC
selves About the end of the month, a further meeting
was held According to Shipp, at that time it was apparent
that the objectives set earlier in the month "were obvi-
sously unrealistic" in that actual sales were only one-
third of the projections He testified that he told the
salesmen that the situation could not continue as the
expense structure was too high considering the volume
of car sales In management meetings a review of expen-
ses led to the conclusion that if sales continued at
that rate it would be impossible to retain the staff
level as it then was Between December and March
or April, the Respondent reduced floor plan interest,
which is the finance charge for icarrying new cars in
stock, from $12,000 to about $8,000 per month by reduc-
ing the inventory carried During the first 4 months
of the year, the Respondent increased its expenditures
for advertising, but this expedient did not reverse the
downward trend in sales
Shipp's rather generalized testimony that sales during
the first 4 months of 1969 were considerably below
the volume for the same months in 1967 and 1968
is borne out by the daily operating control sheets for
those periods, which were introduced into evidence
The following table summarizes the Respondent's unit
deliveries during the indicated periods "
1967 1968 1969
New Total New Total New Total
cars units cars units cars units
January 76 205 73 227 60 175
February 106 215 93 277 54 171
March 88 227 105 265 62 180
April 83 229 51 201 49 158
It is Shipp's testimony that prior to March the
Respondent considered reducing the staff of salesmen
but determined not to do so at that time on advise
of counsel in view of the upcoming representation elec-
tion About a week prior to the layoff notice of April
16 to the individual salesmen and the Union the Respond-
ent, so Shipp testified, decided to make a layoff Initially,
according to Shipp, the Respondent intended to lay
off the least productive salesmen but, upon advice of
" The original daily operating control sheets showed the first half
month operations on one side and the second half on the other They
were withdrawn (with permission) and photocopies substituted as exhib
its Through inadvertence only one side of the sheet for each month
was placed in evidence In each instance except one the figures
are for the first half of the month For January 1968 the figures are
for the second half The term total units refers to cars and trucks
both new and used
759
counsel, determined to follow seniority Shipp testified
that in deciding how many to lay off the Respondent
estimated projected sales at 300 total units per month
and, using a standard suggested by the Ford 'Motor
Company of an average of 12 sales per month per
salesman , concluded that a total sales force of 25 (includ-
ing 8 supervisory personnel who also sold automobiles)
would be sufficient Accordingly, the eight junior sales-
men were notified they were laid off, leaving 17 salesmen
on the force
My impression of Shipp as I listened to him testify
was that he was inclined to exaggerate and generalize,
and that he was not well prepared to explain why
it became necessary in April to cut the staff of salesmen
from 25 to 17 A careful study of his testimony and
the meager data introduced to buttress it, confirms me
in my initial impression Thus he testified that new-
car sales "were off fantastically 75 percent, in
round figures" in March (in fact, the first half-month
figures in the preceding table show March to be the
best of the first 4 months of 1968) He further testified
,that at a March sales meeting he told the salesmen
that "sales were off greatly," when in fact March appears
to have been a better month than February or January
During the period from January to the April layoff
the total number of salesmen had decreased by a net
of seven or eight Shipp testified that in January or
February the Respondent had 32 or 33 salesmen, whereas
at the time of the layoff there were 25, and that 10
who left during that period were not replaced Despite
the asserted drastic reduction in sales, and the alleged
consequent need to reduce the sales force, the Respond-
ent to some extent offset the effect of attrition during
this period by hiring new salesmen or assigning former
supervisors to sales duties Thus Charles Waldron was
hired in January as a salesman at a guarantee of $800
per month for 3 months, and Garland Hunter was hired
March 21, Evans and Baker, former supervisors, were
assigned as salesmen Moreover, salesman Underwood
credibly testified that within 60 to 90 days before the
March 26 election the Respondent advertised for sales-
men
At the time the decision to lay off was made, the
Union, although certified, had made no contract demands
on the Respondent Nonetheless, Shipp's testimony indi
cates that possible demands by the Union figured in
the decision Thus, he testified that the Respondent
hired Paul Burns as new-car sales manager on April
23 with a view to his being able to "establish some
communication between management and our sales
organization which didn't exist or had been shut off
as the result of some activity," and in that connection
alluded to "the feeling of the Union and the demands
that were made" which he characterized as "impossible"
and involving a threefold increase in commissions Shipp
also testified, as did Burns, that their initial intention
was to select salesmen for layoff on the basis of prod-
uctivity, which Shipp felt was a preferable method,
but on advice of counsel followed seniority In this
connection attorney Sandidge, so Shipp testified, felt
that seniority "would be one of the factors involved
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union , seniority rights would be established."
The Respondent adhered to its decision to follow seniori-
ty although the representatives of the Union in the
two meetings on April 22 made clear that in their view
if economic considerations occasioned by declining sales
were the reason for a layoff it would make more sense
if the Respondent selected the low producers for layoff.
After considering and weighing all the evidence, I
am persuaded that a substantial motivating factor in
the Respondent's decision to lay off the eight salesmen
on April 22 was a purpose to retaliate against the employ-
ees for having chosen the Union as their collective-
bargaining representative . As I have found , representa-
tives of the Respondent engaged in unlawful interrogation
and made threats of reprisal and closing of the business
in the event of the advent of the Union . Moreover,
the Respondent plainly revealed its hostility to and disap-
proval of the action of its salesmen who participated
in picketing the premises of Frensley Ford about April
11. Much was sought to be made by the Respondent
of the overhead cost of supplying demonstrators to
salesmen and the other incidental costs attributable to
having a man on the payroll , even though salesmen
were paid on commission and only if their commissions
fell below the minimum wage were they required to
be paid the latter (a circumstance that did not happen).
However , no meaningful data were introduced in evi-
dence that would permit an objective analysis of the
overhead cost factor in relation to the level of sales
during the first 3 or 4 months of 1969. Shipp testified
that he projected 300 unit sales per month , which would
yield the accepted average of 12 sales per month for
each member of the sales force remaining after the
layoff (including eight managerial employees). However,
no evidence as a prior sales performance by managerial
employees was presented ; and I doubt that they would
achieve the same average level as full -time salesmen.
This appears to be borne out by the sales figures in
evidence . Thus with 32 or 33 salesmen in January and
February , the unit sales averaged 10 or 11 per man.
In the first half of April , with 25 salesmen , a total
of 158 units were delivered , or better than an average
of six per man. In short , I am not convinced that
the Respondent could realistically anticipate that a sales
force of 17 would produce 300 unit sales per month.
Although the choice of seniority as the basis for effecting
the layoff has a surface appearance of objectivity, it
admittedly was not the method which would necessarily
result in eliminating low producers. From all the circum-
stances, I infer that seniority was used to cloak the
Respondent ' s real motive , which was to demonstrate
to its sales force that their jobs were more vulnerable
because they had successfully organized . Finally, the
failure of the Respondent to inform the Union of and
discuss with it the asserted need to reduce the force
before deciding to, do so and announcing its decision,
so shortly after the Union had been selected as the
bargaining representative , is a circumstance which I
view as seriously reflecting on the Respondent's bona
fides . For the foregoing reasons , I conclude and find
that by laying off the salesmen on April 22 the Respond-
ent discriminated in regard to their tenure of employment
and thereby violated Section 8(a)(3) and (1) of the Act.
D. The Suspensions of April 23 and 24
As has been found above , salesmen who were laid
off as of the close of business April 22 began picketing
the Respondent ' s premises the morning of April 23,
carrying picket signs to the effect that the Respondent
was unfair and urging the public not, to patronize the
Respondent . During their off-duty hours on April 23
and 24, 11 of the remaining salesmen joined in the
picketing . When they next reported for duty at their
scheduled time they were in substance told that they
could not work and picket on their off -duty hours.
As stated in its brief, the Respondent ' s position is that
"these employees were laid off, not discharged, for
activity disloyal to the Respondent and inconsistent with
their employment ." In sum , the Respondent contends
that it was justified in suspending the salesmen who
engaged in off-duty picketing , relying upon N.L.R.B.
v. Local Union No. 1229, Electrical Workers (Jefferson
Standard Broadcasting Co.), 346 U . S. 464 . For the
reasons hereafter stated , I find that decision not control-
ling, and the activity of the off-duty salesmen protected.
Section 7 of the Act guarantees employees the right
to engage in "concerted activities for . . . mutual aid
and protection ," and such activities are ordinarily
deemed protected unless shown to be "unlawful , violent
or in breach of contract " or "indefensible ." N.L.R.B.
v. Washington Aluminum Co ., 370 U. S. 9, 17. I think
there can be no question that by picketing during their
off-duty hours these salesmen were engaging in concerted
activity , undertaken in support of their fellow salesmen
who had been laid off and who had instituted the picket-
ing in protest thereof . The picket signs disclosed that
the pickets were protesting the- Respondent 's labor poli-
cies . Nor is there anything inconsistent in an employee
seeking to promote employee interests on employee
free time and in providing faithful service to his employer
during working time . Thus , union and employee activi-
ties, such as union solicitation , handbilling , and grievance
processing, are usually conducted by working employees
on the employer ' s payroll and , frequently , at the employ-
er's premises . There is no requirement that employees
withhold their services or walk off their jobs in order
to bring lawful pressure upon their employer to yield
to their demands . Publicizing and attacking their employ-
er's labor policies by peaceful picketing is one of the
accepted means traditionally used by employees to gain
public support in a labor dispute . The fact that the
picketing may be prejudicial to the employer in terms
of loss of image or income is not in itself determinative.
N.L.R.B . v. Peter Cailler Kohler Swiss Choc . Co., 130
F.2d 503, 506 (C .A. 2); N.L.R.B. v. Illinois Tool Works,
153 F . 2d 811, 815-816 (C.A. 7).
In the Jefferson Standard case , supra, the Court held
certain picketing and handbilling "indefensible" and
unprotected , not because these activities were conducted
after working hours , but because the handbills attacked
the employer ' s services (TV programs) without disclosing
BURNS FORD, INC.
the workers' grievances or demands or even indicating
that the appeal related to a labor dispute. The Court
raised no question, however, about the validity of the
picketing and handbilling which had preceded the con-
duct found unprotected because such earlier activity
disclosed the nature of the dispute; indeed, the Court
noted with approval the Board's reinstatement and back-
pay award to the one technician who picketed after
working hours but "who neither sponsored nor distribut-
ed" the second handbills. Id. at 470.
In two recent cases= the Board ruled that concerted
activity during off-duty hours was protected concerted
activity and the discharge of employees engaging therein
was violative of the Act. Edir, Inc., d/b/a Wolfie's,
159 NLRB 686; Sears, Roebuck & Co., 168 NLRB.
955. I find these cases indistinguishable from the situation
presented here. Accordingly, for the reasons set forth
above and in conformity with what I regard as controlling
Board authority, I conclude and find that by suspending
the 11 salesmen who engaged in picketing activities
during their off-duty hours on April 23 and 24, the
Respondent violated Section 8(a)(3) and (1) of the Act.
E. The Refusal To Bargain
It is clear, as found above, that about April 10 the
Respondent determined to lay off the eight junior sales-
men and that prior to reaching this determination it
did not consult with or inform the Union, which on
April 3 had been certified as the employees' exclusive
representative. The employees and the Union were
notified on April 16 of a fait accompli. The fact that
the Respondent met on two occasions on April 22,
at the Union's request, and attempted to justify its
decision, did not, in my opinion, satisfy the Respondent's
obligations under Section 8(a)(5) of the Act. As I have
found, the layoffs were discriminatorily motivated, and
nothing that transpired during the two brief meetings
with the Union on April 22 can be characterized as
good-faith negotiations on the part of the Respondent.
I therefore conclude and find that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by not notifying
the Union of the impending layoff before decision ther-
eon was made and by not affording the Union a meaning-
ful opportunity to discuss the layoff before making it.
See N.L.R.B. v. Benne Katz, etc., 369 U.S. 736;
Exchange Parts Company, 139 NLRB 710, enfd. 339
F.2d 829 (C.A. 5); Dixie Ohio Express Company, 167
NLRB 573."
F. Events Subsequent to April24
On April 26, the Respondent wrote the Union stating
that it was "willing to take the men back who walked
out . . . and will recall the other eight men, when
" The cases cited by the Respondent in support of a contrary result
are distinguishable In Hilton Mobile Homes, 155 NLRB 873, the Board
found, contrary to the Trial Examiner, that the employer did give
adequate prior notice to and did discuss a layoff with the union before
effecting it To the same effect is Instrument Division, Rockwell Register
Corporation, 142 NLRB 634
761
business conditions improve, on a st niority basis." This
offer was renewed in a May 5 letter to the Union.
On May 6 the Respondent wrote the salesmen who
engaged in the off-duty picketing, enclosing copies of
the two letters to the Union and stating that it had
"tendered an unconditional offer to return to work"
and requesting that they "return to work immediately
under the terms and conditions that were in effect prior
to the time of your departure." None of the men returned
to work. They and the salesmen laid off on April 22
continued to picket. The dispute thereupon became a
strike which continued until the Respondent ceased oper-
ations on July 9.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMIl.RCE
The, activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several states, and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, it will be recommended that it cease
and desist therefrom. Inasmuch as the Respondent went
out of business on July 9, the customary affirmative
relief of reinstatement cannot be ordered. I have found
that the salesmen laid off on April 22 were in fact
terminated in violation of Section 8(a)(3). Accordingly,
they 'are to be made whole for their loss of earnings
commencing April 23 and ending July 9.11' However,
the other salesmen, who engaged in off-duty picketing
beginning April 23, were offered their jobs back, uncondi-
tionally, on April 26. They did not respond to the
offer and, therefore, must be deemed to be strikers
thereafter. Accordingly, they are entitled to backpay
only for the period they were denied employment
because of their protected concerted activity but not
for the period subsequent to April 26 when they chose
to withhold their services and engage in a strike. Backpay
shall be computed in accordance with the formula
approved in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum,
as provided in Isis Plumbing & Heating Co., 138 NLRB
716.
Since the possibility exists that the Respondent may
resume operations, I shall recommend that the Board
retain jurisdiction to consider the legal implications of
such an event.
"' Having been unlawfully terminated, and not recalled ', backpay
continues for them even though they thereafter lowed in the strike
with the remaining salesmen . See Knickerbocker Plastic Co., Inc , 132
NLRB 1209, 1212
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the f$ct that the Respondent has gone
out of business and now has no plant or employees,
and inasmuch as the affirmative relief being recommend-
ed to former employees is limited to backpay , no necessi-
ty appears for requiring the posting of notices Nor
does it appear necessary to require that notices be
mailed , since the victims of the discrimination will be
appropriately notified in the event of compliance or
enforcement of the Recommended Order
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case , I make the
following
CONCLUSIONS OF LAW
I The Respondent , at all times material, was 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 interrogating employees regarding their union
sympathies and activities , by threatening to close the
plant if the employees selected the Union as representa-
tive, and by creating the impression that employee activi-
ties in support of the Union were under surveillance,
the Respondent violated Section 8(a)(1) of the Act
4 All new and used -car, truck , recreational vehicle
and fleet salesmen of Respondent , excluding office cleri-
cal employees , sales solicitors , sales assistants , financing
assistants, all other employees , all guards, professional
employees , assistant sales managers , and all other super
visors as defined in the Act, constituted a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
5 The Union has been at all times since April 3,
1969, the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of collec-
tive bargaining within the meaning 6f Section 9(a) of
the Act
6 By failing to notify and discuss with the Union
the layoff of employees on April 22 , 1969, before deciding
to do so the Respondent violated Section 8(a)(5) and
(1) of the Act
7 By terminating Jack Ogle , Ernest Baker , Charles
Waldron, Julian Stevens , Gay Cannon, Garland Hunter,
and James Hughes on April 22 , 1969, the Respondent
violated Section 8(a)(3) and ( 1) of the Act
8 By suspending William Crowe, William Curtis,
Deward Church, Gerald Gnau , Jack O 'Bannon, William
Underwood, Fred Lewis, Earl Evans, Herschel Borow-
ick, Royce Wilson, and William Vittetow on April 23
and 24 , 1969, because they picketed the Respondent
during off-duty hours, the Respondent violated Section
8(a)(3) and (1) of the Act
9 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the
case , it is recommended that Burns Ford , Inc , West
Buechel , Kentucky , its officers , agents, successors, and
assigns, shall
I Cease and desist from
(a) Unlawfully interrogating employees concerning
their membership in or activities on behalf of Retail
Clerks Union , Local #445, Retail Clerks International
Association , AFL-CIO, or any other labor organization,
or threatening to close the plant if employees select
the Union as representative , or creating the impression
that employee activities in support of the Union are
under surveillance
(b) Refusing to bargain collectively with the aforesaid
Union , or any other labor organization selected or desig-
nated as the exclusive representative of employees in
a unit found appropriate by the Board
(c) Discouraging membership in the aforesaid Union,
or any other labor organization , by discharging or sus-
pending employees or otherwise discriminating in regard
to their hire or tenure of employment or any term
or condition of employment
(d) In any other manner interfering with , restraining,
or coercing employees in the exercise of the right to
self-organization, to form labor organizations , to join
or assist the above -named labor organization or any
other labor organization , to bargain collectively through
representatives of their own choosing , and to engage
in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection or to refrain
from any and all such activities
2 Take the following affirmative action which will
effectuate the policies of the Act
(a) Make whole the following employees for any loss
of earnings suffered by reason of the discrimination
against them, in the manner set forth in the section
entitled "The Remedy" '
Jack Ogle
Ernest Baker
Charles Waldron
Julian Stevens
Gay Cannon
Garland Hunter
James Hughes
William Crowe
William Curtis
Deward Church
Gerald Gnau
Jack O'Bannon
William Underwood
Fred Lewis
Earl Evans
Herschel Borowick
Royce Wilson
William Vittetow
(b) Preserve and, upon request , make available to
the Board or its agents , for examination and copying,
BURNS FORD, INC
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary and pertinent to compute the amount
of backpay due
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith "
IT IS FURTHER RECOMMENDED that the complaint
be dismissed in all other respects, and that the Board
retain jurisdiction to reconsider and modify the provi-
sions of this Recommended Order if made necessary
by circumstances not now apparent
11 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 9 in writing within 10 days from the date of
this Order what steps Respondent has taken to comply herewith
763
and used cars and trucks delivered, for the months
of January through April of the years 1967, 1968 and
1969, I find that deliveries for the indicated periods
were as follows
1967 1968 1969
New Total
cars units
New Total
cars units
New Total
cars units
January 155 413 139 393 132 408
February 171 406 169 534 121 383
March 200 529 239 592 116 360
April 156 457 121 434 108 319
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
On December 4, 1969, I issued my original Decision
in the above-entitled matter, finding that the Respondent
had engaged in certain unfair labor practices in violation
of Section 8(a)(5), (3), and (1) of the Act Thereafter,
on December 16, 1969, the Respondent filed with the
Board a motion to remand the case to the Trial Examiner,
in order that I might consider a complete set of photoco-
pies of certain exhibits which through inadvertence had
not been before me By Order issued December 22,
1969 (corrected by Order dated December 23), the Board
remanded the case to me "for consideration of the
complete set of exhibits received into the record as
Respondent's Exhibits 2A, 2B, 3A, 3B, 4A, 4B, 5A,
and 5B and Charging Party's Exhibits 1, 2, 3, and
4" and further directed that after due consideration
of these exhibits I prepare a Supplemental Decision
"containing such resolutions, findings, conclusions, and
recommendations" as I find are necessary
The missing portions of the exhibits, which were
attached to the affidavit of Respondent's counsel in
support of his motion, have been attached by me to
the related portion of the appropriate exhibit and placed
in the proper exhibit folder '
The complete exhibits have been carefully considered
by me Following the format I previously used in summa
nzing these exhibits, which are daily operating control
sheets showing operations, particularly units of new
The complete figures on unit deliveries reveal that
certain of my findings in the second paragraph on page
10 of my initial decision are no longer correct According
ly, that paragraph is hereby set aside and the following
findings substituted
My impression of Shipp as I listened to him
testify was that he was inclined to exaggerate and
generalize , and that he was not well prepared to
explain why it became necessary in April to cut
the staff of salesmen from 25 to 17 A careful
study of his testimony and the data introduced
to buttress it, confirms this impression Thus he
testified that new car sales "were off fantastically
75 percent, in round figures " in March 1969
and that he told the salesmen at a March sales
meeting that " sales were off greatly " Actually,
new car sales in March were 116 as compared
with 132 in January and 121 in February, a decrease
that can scarcely be called "fantastic "
Except as supplemented and corrected by the forego-
ing findings, I adhere to the findings, conclusions, and
recommendations made in my Decision of December
4, 1969
I As noted in my original decision each of the foregoing exhibits
consisted of a sheet of paper with writing on both sides each side
covering operations for a half month Only the photocopy of one
side of each exhibit appeared in the exhibit file The additional pages
supplied by counsel for the Respondent complete the exhibits