DeLorean Cadillac, Inc.

National Labor Relations Board - Board DecisionsJun 30, 1975

218 N.L.R.B. 1362 (N.L.R.B. 1975)

1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeLorean Cadillac, Inc. and Merl Klein, Stanley Loch, and Robert Rice. Cases 8-CA-8430, 8-CA- 8492, and 8-CA-8504 June 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On January 30, 1975, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, DeLorean Cadillac, Inc., Lakewood, Ohio, its offi- cers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Union Local 293, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or in any other labor organization, by discriminatorily discharging any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their union membership, activities, or sympathies in a threatening or coercive manner. (c) Threatening reprisals against its employees should they select the above-named Union, or any other labor organization, as their bargaining repre- sentative. (d) Promising benefits to its employees in order to discourage them from supporting the Union, or any other labor organization. (e) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- 218 NLRB No. 208 tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which the Board fords will effectuate the policies of the Act: (a) Offer Stanley Loch immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Stanley Loch and Robert Rice whole for any loss of earnings each may have suffered in consequence of their discriminatory discharges, in the manner set forth in the Remedy section of the Administrative Law Judge's Decision and in this Decision and Order. (b) 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 other records necessary to analyze the amounts of backpay and other sums due under the terms of this Order. (c) Post at its Lakewood, Ohio, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed with respect to all allegations not found to have constituted violations of the Act. 1 We agree with the Administrative Law Judge that the Respondent unlawfully discharged Robert Rice on May 17, 1974 . However, in so concluding we do not rely on Rice's hearsay testimony relating to events that occurred in connection with his seeking of new employment in Florida. Also, because of Rice's announced intention on May 16 , 1974, to quit in 60 days , we shall not require Respondent to reinstate him and shall provide for backpay only until July 15, 1974, by which time Rice's employment would have ended even absent Respondent's discrimination again st him. Further, we believe that Respondent 's conduct requires that we broaden the narrow 8(axl) order recommended by the Administrative Law Judge. 2 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." DELOREAN CADILLAC, INC. 1363 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act. We have been ordered to post this notice and comply with its provisions. The National Labor Relations Act gives you, as an employee, certain rights, including the right to engage in self-organization and to form, join, help, or be helped by unions. Accordingly, we assure you that: We will respect your above-stated rights under the National Labor Relations Act. We will not dismiss any employee or in any other manner discriminate against any employee in regard to his or her hire, tenure, or terms or conditions of employment, so as to discourage membership in, affiliation with, sympathy for, or lawful activity on behalf of Teamsters Union Local 293, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. We will not question our employees about their union membership, activities, or sympathies in a threatening or coercive manner. We will not threaten reprisals against our employees should they select the above-named, or any other, union as their bargaining representa- tive. We will not promise benefits to our employees in order to discourage them from supporting the above-named, or any other, union. 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, join, or assist any union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refram from such activities, except to the extent that such right may be affected by an agreement requiring union mem- bership as a condition of employment, as author- i The testimony of all witnesses has been considered . In evaluating the testimony of each witness, demeanor was relied on In addition , inconsisten- cies and conflicting evidence was considered . The absence of a statement of resolution of a conflict in specific testimony or, an analysis of such testimony, does not mean that such did not occur See Bishop and Mateo, ized in Section 8(a)(3) of the National Labor Relations Act, as amended. We will offer Stanley Loch, whom we dis- charged because of his union membership and activities, immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges; and WE WILL also pay Stanley Loch and Robert Rice, whom we also unlawfully discharged, backpay, plus interest, for any pay they have lost because of our dismissal of them. All of you are free to join or not to join the Teamsters Union Local 293, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union, except where an agreement requires union membership as a condition of employment, as authorized by law. DELOREAN CADILLAC, INC. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: The hearing in these cases, held on September 11 and 12, 1974, in Cleveland, Ohio, is based on unfair labor practice charges filed on July 22, 1974, by Merl Klein, Stanley Loch, and Robert Rice and a consolidated complaint issued on July 30, 1974, alleging that the above-named Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. The answer admits allega- tions of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board (Respon- dent annually receives goods valued in excess of $50,000 and delivers goods annually valued in excess of $500,000). The answer further admits that the Union, Teamsters Union Local 293, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Upon the entire record, from my observation of the demeanor of the witnesses,' and having considered the briefs submitted by the parties, I make the following: FINDINGS OF FACT 1. THE COMPANY AND ITS BUSINESS DeLorean Cadillac, Inc., is an Ohio corporation, with its office and principal place of business located in Lakewood, Inc, d/b/a Walker 's, 159 NLRB 1159, 1161 (1966). Further, to the extent that a witness is credited only in part , it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony ." N LR.B v. Universal Camera Corporation, 179 F.2d 749, 754 (C A. 2) 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio , where it is engaged in the business of sales and service of new and used cars . Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE ISSUES PRESENTED The issues in the instant case are succinctly presented in the General Counsel's brief as follows: Whether Respon- dent violated Section 8(a)(1) of the Act by (a) coercively and unlawfully interrogating employee Stanley Loch regarding his union activities, sympathies, membership, and/or other protected concerted activities; (b) threatening employee Stanley Loch that, if the Union were to become the bargaining representative of Respondent's employees, there would be instituted a policy requiring mandatory retirement at age 65; and (c) threatening Loch that, if there were one vote for the Union in the impending election, Loch would be discharged. Similar threats and interrogation were allegedly made by the Respondent with respect to employees Robert Rice and Merl Klein. In addition, all three of the Charging Parties were discharged by Respondent. Introduction After the hearing opened there seemed to be a disposi- tion on Respondent's part to settle the case involving Merl Klein. I recessed the hearing to permit the parties to explore the possibility of settlement. The case as to Klein was settled and I therefore granted the General Counsel's motion to sever as to Klein. The General Counsel also requested that Klein be permitted to offer testimony as to certain 8(a)(1) activity concerning him. Respondent agreed to this suggestion. An election was conducted by the NLRB which took place on May 3, 1974. The Union was defeated and did not file objections to the election. III. THE ALLEGED UNFAIR LABOR PRACTICES I don't think we have to go through all of this. I don't really think we need a union, but if you men think you need a union, let's determine this here and now. I see no need to go down and hold an election. Rice testified that DeLorean said there would be no animosity. "If you fellows can't negotiate or don't feel you can negotiate for yourselves and have to pay someone to do this for you - that's going to be up to you, but let's decide it here and now." DeLorean then announced that he and his sales manager, Charles Pitcher, would leave the room for about 10 minutes while the men voted on whether or not they wanted the union. After the brief interval DeLorean returned to the room and went through the names of the men. He said, Bruce Waggoner how do you feel about the Union? Thereafter, Allen Perko, Joe Mish, Bob Rice, Stan Loch, Merl Klein, and Walter Slania were each in turn asked the same question. To this individual interrogation most of the men gave vague answers except for Perko and Mish both of whom said, "No." Rice said not necessarily; Loch refused to comment about the Union. DeLorean told Loch, "You're the spokesman for the group, what do you have to say?" Loch denied he was the spokesman. Rice then stated: DeLorean said, "When I first heard about this Union, my first impulse was to fire Bob Rice, then Stan Loch, and I've got a good idea who would be next and depending on the vote, I would have to start guessing from there if I have to go through the entire sales force." On another occasion, before the NLRB election, DeLo- rean invited Rice out to dinner where there was much conversation about the Union. In the course of this dinner DeLorean said ". . . I thought I had a very good rapport with the salesmen and I find out the Union is coming in here . . . I also thought that my door was open to anybody and that we had no need to hire any professionals." There is some additional egregious 8(a)(1) language allegedly used by DeLorean which is inextricably inter- twined in the discharge of Loch which will be found in the discussion concerning Loch. A. 8(a)(1) Activity The Union's organizing campaign began in February 1974 when its organizer, Manuel Calata, visited the DeLorean showroom where he spoke to a number of employees about improving their working conditions. On March 14, Calata held a meeting with DeLorean employ- ees at the Blue Fox restaurant. Union authorization cards were passed out among employees Loch, Rice, Klein, Waggoner, and Slania. Except for Slania all the employees signed the union cards. A meeting of the entire sales force was called by DeLorean on April 3. Present at this meeting was DeLorean, his sales manager, and all seven of his salesmen. At this meeting it is agreed by all the witnesses that DeLorean said: I have to go down to the National Labor Relations Board and listen to them about why they want an election ... . B. The Discharge of Loch LocN, testified that some days before the NLRB election took place DeLorean approached him while he was at the coffee machine in the service department and said: Stan, if there is one God damned vote for the Union, I will fire your . . . ass. This obscene statement ties in with the following events: Shortly before the election all the employees were called together to hear a talk given by Respondent's counsel. He explained to the men that they had a right to organize a union without threats or coercion being directed against them by management. At the end of this talk the attorney asked if there were any questions. Loch said he had been threatened by DeLorean. The lawyer then asked how he had been threatened. Loch then repeated the threat made against him in the exact language he claims was used by DELOREAN CADILLAC, INC. 1365 DeLorean. The attorney turned to DeLorean and asked, "Did you say that?" DeLorean answered, "No, I didn't." Company counsel then said, "Well, if he did say that, I'm sorry for it," and he said "Is that sufficient?" Loch replied, "No I want an apology from Mr. DeLorean. DeLorean refused to apologize. Subsequently there was a dinner at the Blue Fox restaurant. Loch met DeLorean in the restroom. DeLorean said, "Stan, I'm sorry. I want to apologize for what I said the other day ...: . On direct examination DeLorean vigorously denied that he had made the statement attributed to him by Loch. It is to be noted that he was not asked if he had later apologized to Loch in the restroom. Loch's recital therefore stands as undenied on the record. From this sequence of events it seems apparent that unless DeLorean had in fact made the offensive remark he would have had nothing to apologize for. I credit the testimony of Loch. On its part Respondent gave a mixed bag of explanations for Loch's discharge: going into the service department; going into Respondent's files ; low sales ; bad attitude; paying bird dog fees; 2 instructing customers not to trade cars but to sell such cars on his own ; telling customers that no down payment was needed for the delivery of an auto; lending demonstrator cars to a customer to try out over night; and use of the Company's duplicating machine. It is especially significant to note that Loch testified that none of these alleged violations of Respondent's rules were communicated to Loch. Furthermore some or all of these acts were regularly engaged in by the other salesmen and such activities were condoned by the Respondent. It is also true that for long periods of time Loch was a top salesman and was either first or second in sales . His sales record did fluctuate as did those of the other salesmen . This was especially true of the approximate period from November 1973 to March or April 1974. It was during this period that all auto sales fell off sharply due to the energy crunch which took place throughout the industry during this period. C. The Discharge of Robert Rice It is not disputed that sometime in April 1974 Rice told DeLorean that he wanted to relocate in Florida. He made some other remarks to fellow employees that he expected to leave for Florida after July 4, before the snow flies again in Cleveland. However, Rice gave no definite date as to the probable date of his departure. Respondent claimed that Rice showed photos of his Florida home. Rice denied he showed such pictures but did admit that he showed other salesmen maps and brochures of locations he was considering purchasing for investment purposes in Punta Gorda, Florida. Respondent also asserted that Rice had a For Sale sign on his Cleveland home. In fact it was not until after Rice was discharged in May that he advertised the sale of his home . This did not take place until June 1974. Rice also testified that up to the date of the instant hearing that he had not bought a home in Florida. According to Rice , and not disputed by DeLorean, Rice spoke to both DeLorean and the new sales manager, Herbert Schrader, on May 16 about moving to Florida and that he would be leaving in 60 days. DeLorean told Schrader that 60 days would give Respondent sufficient time to train a new man. During this meeting Rice agreed to give DeLorean a letter confirming his plan to leave in 60 days. DeLorean allegedly agreed to give Rice a letter of recommendation. Neither letter was written. In this connection Rice testified that DeLorean said: A letter of recommendation doesn't mean anything anyway because if an employer calls back on someone who would do something like this to me - What's that man's name? Bob Rice? I can't tell you over the phone what I would really like to tell you about him. I'll be on the next plane and tell you personally. On May 17 at or about 10 a.m. Rice was told to report to DeLorean in his office. DeLorean looked at Rice and said: "I want the keys for the front door, turn in your demonstrator and get your personal items out of your desk and get off my property." DeLorean refused to give Rice an explanation for the abrupt discharge. Rice asked DeLorean about a letter of recommendation to which DeLorean replied, "I never wrote a letter of recommenda- tion for anybody in my life." On redirect examination the General Counsel asked Rice, "Were you ever deprived of employment either by means of not being hired or by means of being terminated by reason of Respondent' s actions toward you." Rice answered, "`Yes." When Rice arrived in St. Petersburg he went to the Cadillac dealership where he was referred to the Adcock Buick Company. After he was extensively interviewed and had taken a number of tests he was told that everything looked good, come back tomorrow. At that time he was told "It looks like you're the man we can use." When Rice returned the next day he was told, "I'm sorry... a change of policy dictates that I can't hire a man with your experience." Subsequently Rice went to the Brayman Cadillac Company in Tampa. The general manager said, "I think you're the man we are looking for. Anyone who has a ring [given by Cadillac for excellent sales ] we think he can sell automobiles." Rice was sent to the office and told to fill out an application and meet the owner, Mr. Ed Lebowitz. Lebowitz hired him. Rice decided to move his family down to Tampa and said he would start work the first of August. He moved his family, started August 1, and filled out the medical insurance forms . He went to work for 3 or 4 days. Thereafter this Company told him they had 10 men and had decided not to put on an eleventh salesman. Rice asked Lebowitz if he had spoken to DeLorean. He said, "No, he just explained that your parting was not on the best of terms. " Rice then tried to get a job in LaTour Oldsmobile. This Company called DeLorean who said, "He's a bad guy." He then applied at Arthur Pontiac. A call was again made to DeLorean's sales manager . He said that DeLorean is handling this personally. Ten minutes later, Mr. Arthur walked into a Mr. Ed Carson's office and 2 It is common parlance among auto salesmen that, when someone refers a potential customer to a salesman , this is called bird dogging If the sale of a car eventuates from such a referral a commission is paid. 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "There's an application over there, Bob Rice, forget it." Concluding Findings, Credibility, and Analysis There is convincing evidence in the record to support findings that Respondent's president, DeLorean, commit- ted violations of Section 8(aXI) by individually interrogat- ing Loch and Rice as to why they wanted a union. This was followed up by his harsh and profane remark to Loch, "Stan, if there is one God Damned vote for the Union, I will fire your . . . ass." During Rice's testimony on direct examination he recalled DeLorean's first remark upon meeting with all the salesmen in his office on April 3. Rice testified that DeLorean said: When I first heard about this union, my first impulse was to fire Bob Rice, then Stan Loch, and I've got a good idea who would be next and depending on the vote, I would have to start guessing from there if I have to go through the entire sales force. DeLorean thus manifested his union animus in his first meeting with his salesmen at a time when they had all been called together ostensibly for the purpose of being polled as to whether or not they wanted to have a union. Thus the individual polling of each of the men individually was against a background of a threat to first fire Rice and Loch and thereafter guessing, "if I have to go through the entire sales force" in order to decide who should next be fired. In the context of this meeting it would be difficult for the employees to feel anything except a direct threat to their livelihood. I therefore find that DeLorean violated Section 8(axl) of the Act by this coercive interrogation. So far as Loch is concerned in his exit interview he was confronted with a mixed bag of accusations as the reasons for his discharge. He was charged with going into Respondent's files; falsifying follow-up calls to prospective customers; instructing customers not to trade in their cars at a time when the sale of used cars was at a premium; telling customers that no down payment was needed for the delivery of an automobile; paying bird dog fees; and being a poor and lazy salesman. Significantly not one of these complaints had ever been communicated to Loch. The General Counsel calls attention in her brief that "The fact that Respondent had shifting defenses further indi- cates the likelihood that the discharge was for pretextual reasons ." It should again be noted that most of these alleged reasons for his discharge concerned activities which almost all of the salesmen had been guilty of but their so- called offenses were condoned by the Company. Even the Ohio state law, prohibiting the payment of bird dog fees, applies only to dealers. Quoting the pertinent sections of state law the General Counsel concludes that, "... no such prohibition exists against salesmen." During the meeting that took place among Respondent's counsel and the salesmen at which the lawyer explained the mens' rights and privileges under the National Labor Relations Act, the Company's attorney said, "I've been looking over the pay plan and the benefits and there is definitely a need for improvement on benefits . . . . There is definitely changes in the pay plan in the offing." Such a statement of promised future benefits creates the reason- able inference that additional benefits were promised if the employees rejected the Union. At the end of the Company counsel's explanation of the law that applies to this situation the men were asked if they had any questions. Loch asked the attorney what he thought of a man who said to him, "Stan if there is one vote for the Union I'm going to fire your . . . ass." The lawyer looked shocked and said, "I think it is utterly uncalled for. Who said that and I apologize for him." Loch pointed to DeLorean. The lawyer said, "I apologize and, Mr. DeLorean, I think you should apologize if you said that." DeLorean denied he had made such a statement. If DeLorean did not in fact make the remark attributed to him, it cannot be explained that on a subsequent occasion he met Loch in the restroom, offered his hand, and said he was sorry for the remark. DeLorean's failure to deny he had offered to apologize to Loch is a palpable admission and brands him as an untruthful and incredible witness. Both Rice and Loch testified in a direct, clear, and forthright manner and in any and all instances where contrary testimony was given by the Respondent or his other witnesses I credit the General Counsel's witnesses and discredit those of the Respondent. In the course of Rice's testimony the record shows that Respondent first objected to this line of questioning and I overruled his objection. Thereafter, as the witness contin- ued with his recital of efforts to secure employment after his discharge, Respondent objected as follows: I object to this testimony and ask that it be stricken, but he may continue so long as you wish him to continue. It is to be noted that Respondent did not object on the ground that some of his testimony was based on hearsay. In any event Rice completed his testimony on this line giving names, dates, and other details. In the incident involving owner Lebowitz at the Brayman Cadillac Company in Tampa, Rice was first hired, signed the required insurance and other forms, and actually went to work and worked 3 days before he was let go apparently after Lebowitz checked his reference with DeLorean. I draw the strong inference that Rice would not have been terminated but for what DeLorean told Lebowitz about him. This gives rise to what is usually referred as "blackballing." 3 An isolated instance of hearsay evidence may not form the basis for a finding of fact. In the instant case Rice gave testimony concerning approximately five instances where he- was ostensibly accepted for employment as an automo- bile salesman with 18 years of experience. This would seem to me to clearly establish a pattern of illegal activity on the part of Respondent. Pragmatically speaking the proof of blackballing can hardly ever be established except by circumstantial evidence. The evidence on this point seems inevitably to lead to only one reasonable inference: Rice was either not hired or was fired after commencing work as 3 N LR. B. v. Waumbec Mills, Inc., 114 F.2d 226,232 (C.A. 1). DELOREAN CADILLAC, INC. 1367 the direct result of the information provided by DeLorean. DeLorean discharged Rice because of his suspected union activity. From all of the above I conclude and find that Loch and Rice were fired for suspected union activities and by so doing Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By its conduct as set forth and found in section III, supra, consisting of Respondent's discharge of Stanley Loch and Robert Rice under the circumstances described above, Respondent has engaged and is continuing to engage in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. Respondent has also by interrogation, promises of benefit, and threats of reprisal sought to have its employees abandon the Union and has therefore independently violated Section 8(a)(1) of the Act. 3. Said unfair labor practices have affected, affect, and unless permanently restrained and enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having been found to have violated Section 8(a)(3) and (1) of the Act in respect to its discharge of Stanley Loch and Robert Rice and its failure to unconditionally reinstate or reemploy them, Respondent should offer to reinstate them to their former positions (or, if no longer available, in that case to substantially equivalent positions), together with backpay as appropriate, less applicable interim earnings if any, plus interest, computed as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), making necessary records available for computation purposes. Respondent should further be required to post the usual notice to the effect that it will remedy such violation, and desist from further violation and interference with its employees' rights under the Act. [Recommended Order omitted from publication.]