Dunn Chevrolet, Inc. d/b/a All Star Chevrolet

National Labor Relations Board - Board Decisions

Oct 8, 1982

265 N.L.R.B. 31 (N.L.R.B. 1982)

ALL STAR CHEVROLET
Dunn Chevrolet, Inc. d/b/a All Star Chevrolet and
Emery Lamarr Rupley. Case 32-CA-3990
October 8, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On August 5, 1982, Administrative Law Judge
Joan Wieder issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed partial cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions 2 of the Adminis-
trative Law Judge and to adopt her recommended
Order, as modified herein.
The General Counsel excepted to the fact that
although the Administrative Law Judge found that
the Employer, acting through Dondero and
Howard, threatened Rupley by saying he could not
work for the Employer because of his past involve-
ment in union activities, she did not specifically
find that such conduct violated Section 8(a)(l) of
the Act. We find that Respondent's threat violated
Section 8(a)(l). Accordingly, the section of the Ad-
ministrative Law Judge's Decision entitled "Con-
clusions of Law" is modified to include that find-
ing. We shall make the appropriate modifications in
the recommended Order and notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
The General Counsel excepted to the Administrative Law Judge's find-
ing that Respondent derived gross revenues in excess of S50,000 during
the past year, instead of $500,000 as alleged in the complaint and ad-
mitted in the answer. This figure was incorrectly stated by the Adminis-
trative Law Judge and should read S500,000
In the sixth paragraph of sec III.C, of the Administrative Law Judge's
Decision the name Anderson should read Armstrong.
2 The Administrative Law Judge omitted Sec. 2(2) of the Act from her
first Conclusion of Law although she had found above that Respondent
is an employer within the meaning of that section
265 NLRB No. 5
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Dunn Chevrolet, Inc. d/b/a All Star Chevrolet,
Livermore, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph l(b) and re-
letter the subsequent paragraph accordingly:
"(b) Threatening employees by telling them they
cannot work for Respondent because of past union
activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to hire or discharge
employees and fail to reinstate them because of
their union membership and activities.
WE WILL NOT threaten to discharge or not
hire employees because of their past union ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to organize, to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL make whole Emery Lamarr
Rupley for any losses he may have suffered as
a result of our unlawful discrimination against
him and WE WILL offer him immediate rein-
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to his former job or, if such job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or
other rights.
WE WILL expunge from our files any refer-
ence to the refusal to hire or disciplinary dis-
charge of Emery Lamarr Rupley on or about
October 2, 1981, and WE WILL notify him in
writing that this has been done and that evi-
dence of this unlawful discharge will not be
used as a basis or future personnel actions
against him.
All our employees are free to engage in concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection. Our employ-
ees are also free to refrain from any or all such ac-
tivities.
DUNN CHEVROLET, INC. D/B/A ALL
STAR CHEVROLET
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge: This case
was heard before me in Oakland, California, on May 25,
1982. On November 27, 1981,1 the Regional Director for
Region 32 issued a complaint and notice of hearing based
upon a charge filed by Emery Lamarr Rupley, an indi-
vidual, on October 13, 1981. The complaint alleges that
Dunn Chevrolet, Inc. d/b/a All Star Chevrolet (herein
called Respondent or the Company), has engaged in cer-
tain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein called the Act).
Respondent, in its answer to the complaint, denies com-
mitting any violations of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a Delaware corporation
with an office and place of business in Livermore, Cali-
fornia, and is engaged in the wholesale and retail sale of
new and used automobiles and the retail sale of parts and
automobile servicing. It further admits that during the
past year, in the course and conduct of its business, it de-
rived gross revenues in excess of $50,000 and that annu-
ally it purchased and received goods or services valued
in excess of $5,000 from sources outside the State of
California. Accordingly, it admits, and I find, that it is an
employer engaged in commerce and in a business affect-
I All dates herein refer to 1981 unless otherwise indicated.
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties have stipulated, and I find, that Auto-
mobile Salesmen's Union, Local 1095, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates two automobile dealerships, All
Star Chevrolet and All Star Dodge,2 which are across
the street from one another in Livermore, California.
Herbert Howard is the president of the Company, which
employs his brother Andy as the sales manager for both
automobile dealerships. The Company also employed
Dale Peterson as general manager and, as here pertinent,
two crew chiefs at All Star Chevrolet, John Dondero
and Richard Rutledge.3
The Charging Party sought employment at All Star
Chevrolet. It is the General Counsel's contention that
Respondent failed and refused to hire Rupley, or dis-
charged him, because the Company ascertained that in
July 1979 Rupley filed an unfair labor practice charge
against Tri-Valley Datsun, Inc., alleging discriminatory
discharge and unlawful refusal to reinstate, resulting in
the issuance of a complaint which was resolved through
the entry into a settlement agreement. The settlement
agreement provided, in part, for the payment to Rupley
of $5,984 and the posting of a "Notice to Employees."
Respondent asserts that Rupley was never an employee
and that, at the time the decision was reached not to hire
him, the Company did not have knowledge of any union
or other concerted protected activity engaged in by
Rupley.
B. The Events of September 29 and 30
On or about September 30, Rupley, who has been an
automobile salesman for 10 years, applied for a job at All
Star Chevrolet after inquiring the preceding day as to
the availability of work from Bob Eudy, a salesman, who
told him that the Company would be hiring and referred
him to the general manager, Dale Peterson, and the
owner, Herb Howard, as the individuals he should con-
tact for a job interview. Rupley telephoned Peterson'
who informed him that Respondent was hiring salesmen
and he should come over, fill out an application, and
"report to John Dondero because he needed someone on
his crew.
Rupley did go to All Star Chevrolet and spoke to
Dondero who gave Rupley his card indicating Dondero
was the sales manager. 5 Dondero gave Rupley an appli-
s All Star Dodge was purchased by the Company in July 1981.
S The question of whether crew chiefs are supervisors is in dispute and
will be resolved below.
4 Peterson did not appear and testify. Neither party made any repre-
sentations regarding his availability as a witness.
I Dondero did not appear and testify. It appears that counsel for the
General Counsel was going to subpoena Dondero, so informed Respond-
Continued
32
ALL STAR CHEVROLET
cation for employment to fill out and then interviewed
him for a salesman position. According to Rupley, Don-
dero then discussed how salesmen were paid and certain
job benefits including the vacation and medical insurance
plans. During the interview, Rupley told Dondero that
he would "run into a problem" if Respondent checked
with Tri-Valley Datsun "because we didn't get along
that well and his statement was to me that we've all had
problems at different dealerships and that wasn't the
main thing that he was going to check anyway. It was
more or less DMV [Department of Motor Vehicles] and
credit type things." After the interview, Dondero told
Rupley that he would have to review the application
with Dick Rutledge, another manager, before a decision
could be reached regarding his employment. 6 "But he
said that it looked pretty good and he didn't think that it
would be any problem and so that he would let me
know later that day and for me to call him back about
2:30."
Rupley testified that, when he called back at 2:30,
Dondero said he was at a meeting and asked Rupley to
call again in 10 or 15 minutes. When Rupley did call
back 10 or 15 minutes later, he was informed that Don-
dero had gone for the day; so he asked to speak to Rut-
ledge. According to Rupley, Rutledge stated Respondent
wanted to hire him and have him start the following day,
Friday, rather than the following Monday when Rupley
said he would prefer to start work. Rupley stated he
would have to get approval from his then current em-
ployer, Firestone. Later that day, Rupley gained approv-
al from his employer to leave since it was the beginning
of the month and pay period, and so informed Rutledge.
During the same telephone conversation, Rupley stated
he needed a demonstration car because at the time he
had to commute to Livermore from Modesto, California,
and his wife needed the use of the only car his family
owed. Rupley claims he was told to report to work for
the evening shift at 2:30 p.m. on Friday, October 2.
Rutledge denies ever talking to Rupley on the tele-
phone and hence denies that Rupley was hired. Respond-
ent denies that Dondero or Rutledge hired or had au-
thority to hire Rupley. According to Howard, Dondero
was never a sales manager, rather both Rutledge and
Dondero were "closers," or crew chiefs. Both Rutledge
and Dondero had at least two sets of business cards, one
identifying them as working in "sales and leasing" and
the other identifying them as "sales manager." This latter
card was assertedly used in conjunction with their jobs
as closers. A closer was described as one of the better
salesmen who, when one of the other salesmen cannot
close a deal with a customer, attempts to finalize the ne-
gotiations, for which he is remunerated 5 percent of the
"gross." 7 The closers also receive the same commission
ent, and then could not locate him for service of the subpoena. Dondero
left Respondent's employ subsequent to the events complained of herein.
The record is silent regarding the details of Dondero's leaving Respond-
ent's employ, or whether Respondent knew where he could be reached.
6 Rutledge testified that he and Dondero were never consulted about
new hires.
7 The salesman usually is paid only a commission, not a salary. The
commission was described as 30 percent of the "gross."
as other salesmen on all sales they initiate and close
themselves.
C. The Events of October 2
According to Rupley, he reported to work at All Star
Chevrolet at 2 p.m. When he arrived, he saw two men
near the entrance and asked them if Dick Rutledge was
there. One of the men introduced himself as Rutledge, so
Rupley identified himself. Rutledge said, "Very good,
welcome aboard," and then introduced him to the other
man, Herbert Howard, who "also said that they were
glad to have me with them and welcome aboard." Rut-
ledge then took Rupley into his office, explained the pay
and vacation plans, and gave him his work schedule for
the month of October. Rutledge then assigned him an
office after which Rupley went out on the showroom
floor and to the used-car lot to familiarize himself with
the dealership's stock. Subsequently, Rupley asked Rut-
ledge what code they employed on the used cars since
he was unfamiliar with that utilized by Respondent. Rut-
ledge accompanied him to the used-car lot, and demon-
strated on the back of one of his business cards s how to
read the code. Rupley then returned to the showroom
floor, recognized an acquaintance of 20 years who had
been a coworker at Tri-Valley Datsun, Jim Armstrong.9
Armstrong, who was working for Respondent as a sales-
man at All Star Dodge, greeted Rupley and asked what
he was doing there. Rupley replied that he was working
there.
At approximately 3:30 p.m., Rupley was asked by
Dondero to accompany him to Herb Howard's office,
which he did. Herb Howard was not in the office at this
time. According to Rupley, "Mr. Dondero stated to me
at that time . . . that he could no longer have me contin-
ue employment with them because of the union activity
that I had been involved in." Rupley then inquired if
Armstrong was the source of this information since he
was on the showroom floor 15 minutes prior to this con-
versation, but Dondero represented that he ascertained
the information from other sources also. The Charging
Party explained that Armstrong and he shared many ac-
quaintances, had worked together before, and Armstrong
did not want him working there because "he did not
want the competition." Dondero assertedly replied "that
they have had too many problems in the past and be-
cause of my affiliation with it, they could not take a
chance of hiring me or putting me to work at this time
. . . so I asked him if Herb Howard knew about the situ-
ation. He then stated to me that he does. I then asked to
speak to him .. ."
Rupley waited until Howard could meet with him.
Rupley further testified:
a The card designated Rutledge as sales manager.
s Armstrong did not appear and testify. Since Armstrong was not a
supervisor and was apparently equally available to both parties to this
proceeding, no adverse inference shall be taken due to the failure of
either party to call him as a witness. Plumbers and Steamfirrters Local No
40. United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United Stares and Canada. AFL-CIO (Mechani-
cal Contractors Association of Washington), 242 NLRB 1157, 1160, fn 10
(1979).
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Howard stated to me also that because of 'the
union activities that they had found out about from
apparently somewhere, I don't know for sure, but
they [H. Howard] said because of the union activi-
ties that they could not hire me and they could not
have me be employed there.
And there again, they had too many problems
before. Apparently it was something, I don't know
what it was, the problem that they had, but they
said at this time they could not take a chance on an
employee that had some past problems on it. So I
stated to him that, I did want the job, I was not in-
volved in it, okay, and I did want to go to work for
them and he stated to me then that he [Howard]
would do some further checking on it and let me
know, but he [Howard] didn't feel that there would
be a great possibility ...
One of the things that he [Howard] mentioned
earlier or asked me was how long I had lived in
Modesto and . . . I said for 2-1/2 years and his
statement was to me, well, that was a funny place
to move to if you were a union organizer.
Rupley was not offered a job by Howard or any other
representative of Respondent after this conversation.
Rutledge asserts his initial contact with Rupley was
when Rupley walked into his office in early October and
introduced himself as a new employee. In Dondero's ab-
sence, Rutledge "welcomed him aboard" and began ex-
plaining a salesman's job duties. Rutledge was responsi-
ble for preparing the monthly work schedule, and he
then modified the existing schedule to include Rupley,
made several copies of the new schedule, and gave one
to Rupley. When Dondero reported to work at 3 p.m.,' °
Rutledge informed him that Rupley "was there," to
which Dondero replied, "Fine." There were no discus-
sions regarding office assignment; salesmen are not as-
signed to individual offices at All Star Chevrolet, ac-
cording to Rutledge. However, Rutledge did acknowl-
edge that he generally used the same office at the Com-
pany. Further, Rutledge did admit explaining to Rupley
the retail price code employed by the Company on used
cars, which is considered confidential information. Rut-
ledge also asserts that neither he lior Dondero was a su-
pervisor, that they could not hire or fire employees.'
The testimony of Rutledge, where it is disparate from
Rupley's statements or is not an admission, is found not
credible based on demeanor, the fact that much of the
testimony was adduced by the use of "leading questions
under direct examination," 12 many of his statements
were conclusionary in nature,'3 the testimony was pre-
°0 Although Rutledge testified that normally Dondero's shift would
have started at 2 p.m. the day Rupley came in to work, Dondero did not
come to work until after 3 p.m. This absence was unexplained.
I I H. Howard described Rutledge and Dondero as "mere closers," and
asserts that only the Howard brothers and Peterson hired and fired auto-
mobile salesmen.
12 Testimony adduced by "leading questions under direct examination"
is entitled to minimal weight. H. C. Thompson, Inc., 230 NLRB 808, 809,
fn. 2 (1977).
's Local Union No. 673, International Union of Operating Engineers,
AFL-CIO (Westinghouse Electric Corporation), 229 NLRB 726 (1977); and
Rosa M. Alexander d/b/a A d B Janitorial Service, 253 NLRB 508 (1980).
sented in a fashion that demonstrated it was tailored to
support a litigation theory rather than an attempt to tes-
tify clearly, l4 and inherent inconsistencies.
Herbert Howard generally claimed that Dondero told
him on the telephone that Anderson heard the Company
was considering hiring Rupley and reported that Ander-
son had known Rupley since childhood and recommend-
ed that the Company not hire him because Rupley "had
caused heat where he had worked." Howard did not try
to talk to Armstrong to find out what "the heat was
". ."' Therefore, H. Howard told Dondero he had de-
cided not to hire Rupley at that moment, to check him
out through his previous employers and find out what
the problem was. In response to Rupley's request to dis-
cuss the decision with him Howard told Rupley that
Armstrong said negative things about him, that he had
caused trouble on the showroom floor, but he doubted
that he went into detail. Although he testified he never
saw Rupley's application, he further stated to Rupley
that if he received good references from his previous em-
ployer he would consider hiring him. Rupley mentioned
he had some problems at Tri-Valley Datsun, so Howard
said if that was the only problem, it would not bother
him too much; he would check the other references on
the application. It was after talking to Dondero that he
decided not to hire Rupley.'6
Later in the day, H. Howard talked to the owner of
Tri-Valley Datsun, Phil Sterns. 7 According to H.
Howard:
I asked him if he knew the gentleman and he says, I
do. I says can you tell me anything about him and
he says I would rather not and I says well, can you
tell me if he's a good employee, bad employee,
good salesmen, bad salesmen and he says I would
not let him in my front door, let alone sell a car for
me. And I says what kind of trouble did you have
and he says I won't say. That's all I'll say and that's
all he said to me.
Contrary to his representation to Rupley and his initial
statement to Dondero to not hire Rupley until he
checked his references, Howard and/or Dondero never
checked any other references listed by Rupley on the
" For example, Rutledge stated he would only glance at the applica-
tions presented by prospective employees, he would not review them, but
he admitted he did interview them for about 15 minutes to assess the indi-
vidual's ability to do the work and to determine if they would fit into the
organization; and, based on this assessment, he would make recommenda-
tions regarding the desirability of employing such applicants and, at
times, his negative recommendations on applicants were the final deci-
sion, for the Howards "have some faith in what I think." Cf. Apollo Tire
Company. Inc., 236 NLRB 1627 (1979); and Carruthers Ready Mix. Inc.,
262 NLRB 739 (1982).
"1 Subsequently, H. Howard altered his testimony asserting that Don-
dero stated that Armstrong told him that Rupley caused "a tremendous
amount of trouble in any store he's worked at ... he's a problem on the
floor. He has a tendency to get the salesmen down and questions the
commissions and just general [sic] causes problems in an organization
'" On examination by the General Counsel which was conducted with
some difficulty, due to lack of responsiveness, H. Howard admitted that
he told a Board representative that he decided not to hire Rupley after
talking to Sterns, the owner of Tri-Valley Datsun.
1? Sterns did not appear and testify at this proceeding.
34
ALL STAR CHEVROLET
"not seen" application although Howard did mention he
knew one or two of the owners listed thereon.
Subsequently H. Howard talked to Armstrong at or
about 5 or 6 p.m. the same day, which was when "he
told me, he says that Phil Sterns had had a union prob-
lem with him and he [Armstrong] went into a long dis-
sertation .. "18 wherein Armstrong probably stated
that Rupley went to the National Labor Relations Board
because he had been fired, that a settlement resulted, and
that it "was a hassle."
Herbert Howard is not a credible witness based on de-
meanor, the inconsistencies in his testimony only a few
of which have been noted above; at times he was eva-
sive, not candid in his vague and conflicting responses,
which were self-serving, and much of his testimony was
adduced by leading questions.' 9 Conversely, Rupley tes-
tified with clarity and sincerity, exhibiting a good
memory for facts. Thus, his testimony is credited, and it
is found that both Dondero and H. Howard told him the
decision not to employ him or retain him as an employee
was based on his union activities while he was employed
at Tri-Valley Datsun.
Analysis and Conclusions
Section 8(a)(3) of the Act prohibits employer "discrim-
ination in regard to hire or tenure of employment to en-
courage or discourage membership in any labor organi-
zation." In Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir.
1981), cert. denied 455 U.S. 989 (1982), and Board cases
decided thereafter, analysis of unlawful refusal to hire or
unlawful discharge proceedings will follow the test ap-
plied by the Supreme Court in Mt. Healthy School Dis-
trict Board of Education v. Doyle, 429 U.S. 274 (1977). As
explained in the Wright Line case, supra, 251 NLRB at
1089, the Board will:
. . .require that the General Counsel make a prima
facie showing sufficient to support the inference that
[the employer's opposition to] protected conduct
was a "motivating factor" in the employer's deci-
sion [to discipline the employee]. Once this is estab-
lished the burden will shift to the employer to dem-
onstrate that the same action would have taken
place even'in the absence of the protected conduct.
Based on the credited testimony, as found above, Re-
spondent, through both Herbert Howard and Dondero,
admitted that the action was taken for a proscribed
reason.
However, even assuming that this direct evidence of
discriminatory motive were absent, the available evi-
dence also supports the inference that the reasons for Re-
spondent's actions were based on a discriminatory
motive. Respondent contends that it never hired Rupley
because Armstrong advised against it without giving de-
tailed reasons for his advice. Therefore Respondent con-
tends it had no knowledge of Rupley's concerted pro-
is At another point in his testimony, H. Howard stated that only after
the charge was filed did he "start checking around" and found out his
"problem" involved union activities.
11 See cases cited above with regard to Rutledge's credibility.
tected activities; hence, it could not have discriminated
against him because he had engaged in such actions.
Initially, it is found that Rupley was hired by Re-
spondent on or about October 2. Rupley quit his job
with Firestone on short notice. The evidence of record
shows Rupley to have reported prior to the start of the
shift, was then included in the work schedule for the
month of October, and acquainted with some of Re-
spondent's operating procedures, including being made
privy to confidential information. These uncontroverted
facts belie any claims of Respondent that Rupley misrep-
resented to Rutledge that he had been hired. This con-
clusion is buttressed by Dondero's response according to
Rutledge, when Dondero was informed of Rupley's pres-
ence. Dondero according to Rutledge, replied, "Fine."
There was no question raised by either Dondero or Rut-
ledge regarding the propriety of or basis for Rupley's
presence as a new employee on or about October 2. That
Rutledge or any other representative of Respondent did
not have Rupley complete necessary documents such as
social security forms and insurance is undisputed;2 0 how-
ever, there was no showing that Respondent routinely or
otherwise had new employees complete the necessary
documents within the first hour of their employ. Re-
spondent's practice in this regard is information solely
within its purview and the failure to provide it warrants
the drawing of an adverse inference. 2 1 Alternatively, Re-
spondent has failed to substantiate its claim that Rupley's
failure to complete certain documents proves that he was
not hired by Dondero.
Respondent's claim that Dondero could not have hired
Rupley because Dondero did not have the requisite au-
thority is similarly found to be without merit. Section
2(11) of the Act defines a supervisor as:
. . . any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
The statutory definition of a supervisor is framed in the
disjunctive; hence, to be found a supervisor, an individu-
al employee need possess only one of the enumerated in-
dicia of supervisory authority if such authority is
"present in a form which requires the exercise of inde-
20 Respondent also asserted initially that Rupley needed to acquire a
sales license from the State but it later admitted that since Rupley had a
valid license he did not need to obtain another.
al International Union. United Automobile. Aerospace and Agricultural
Implement Workers of America (UAW) [Gyrodyne Cal v. N.LR.R, 459
F.2d 1329, 1336 (D.C. Cir. 1972); Northern Packing Ca v. Page, 274 U.S.
65, 74 (1927). H. Howard merely testified that, after an individual is
hired, he is taken to the business manager to complete the necessary
forms. Exactly when this is done was not detailed and the business man-
ager, Mary Hallor, who was described as a manager by Respondent, did
not appear and testify. Accordingly, the failure to call Hallor to testify
on this issue also warrants the taking of an adverse inference under the
missing witness rule.
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent judgment." N.LR.B. v. Local Union No. 252,
Lithographers-Photoengravers International Union, AFL-
CIO [Sayers Printing Co.], 453 F.2d 810, 814 (8th Cir.
1971). The record clearly establishes that "crew chiefs"
effectively recommend if a job applicant is hired or not.
According to Rutledge, in every instance that he recom-
mended an applicant be employed, that applicant was
hired and he has at times, independently and without
consultation, exercised the final decision to not employ
an applicant. This conclusion is buttressed by the busi-
ness cards used by the crew chiefs whereon Dondero
and Rutledge are referred to as "sales managers." That
such cards are used as a sales ploy does not necessarily
require a different finding, for the ploy, if such is the
case, does not define the duties of the individual named
thereon nor does their use require a finding of disingen-
uousness. However, if such disingenuousness were found,
then only credibility is further impaired and the shape of
the "closer's" duties is not clarified thereby. Further-
more, Respondent, in a position statement that is unrelat-
ed to settlement negotiations, admitted that Dondero had
been a sales manager but asserted that in August, preced-
ing the events complained of herein, there was a change
in Dondero's job classification to crew chief. There was
no evidence of record detailing any changes in Don-
dero's duties between July and October. Accordingly,
based on the title used by Dondero when he interviewed
Rupley, Rutledge's admitted independent exercise of
judgment in the hiring of employees, and the position
statement, it is concluded that Dondero did have authori-
ty to hire Rupley;22 and that Rupley was, in fact, hired.
Alternatively even if it were found that Rupley had
not been hired by Dondero, he was a prospective em-
ployee. Prospective employees are "employees" within
the meaning of Section 2(3) of the Act and hence are
protected by the Act's prohibition against discrimination
in regard to hire. Phelps Dodge Corporation v. N.L.R.B.,
313 U.S. 177 (1941); Young Hinkle Corporation, 244
NLRB 264 (1979); Wyman-Gordon Company, 252 NLRB
1206 (1980); and Consolidated Freightways Corporation of
Delaware, 242 NLRB 770 (1979).
As noted above, Rupley's credited testimony estab-
lished that both Herbert Howard and Dondero knew of
his union activity at Tri-Valley Datsun and they men-
tioned this activity as the basis for their decision not to
retain him as an employee. Even absent this direct evi-
dence of Respondent's knowledge, there is strong cir-
cumstantial evidence that Respondent knew of Rupley's
activity since Armstrong, whose comments were the ad-
mitted genesis of Respondent's decision, knew of Ru-
pley's actions at Tri-Valley Datsun, and these actions
were disclosed to be the basis for Armstrong's recom-
mendation. It tends to strain the bounds of credulity to
2" Respondent's further argument that Dondero could not hire Rupley
without approval from either Peterson or one of the Howard brothers is
also without merit, even if credited, for neither Andy Howard nor Peter-
son was shown to have not participated in the decision to hire Rupley.
Further neither Andy Howard nor Peterson appeared and testified even
though they were admitted supervisors, warranting the taking of an ad-
verse inference. See, for example, Martin Luther King, Sr.. Nursing
Center, 231 NLRB 15, fn. I (1977). Dondero's absence as a witness will
not be similarly construed since he has left Respondent's employ and ap-
pears to have been equally accessible to both parties.
believe that both Dondero and Herbert Howard would
have acted with such alacrity without having any knowl-
edge regarding the basis for Armstrong's statements. H.
Howard's admitted directive to Dondero to check Ru-
pley's references further prior to committing the Compa-
ny to hire him indicates that the claimed generalized
basis for Armstrong's recommendation was considered to
be inadequate to warrant a decision to fire or not hire
him.
Concomitantly, if it is again assumed that Rupley's tes-
timony ascribing union activity as the basis for the Com-
pany's action is not credited, the basis or motive for Re-
spondent's discharge of Rupley is determined by infer-
ences similar to those establishing the Company's knowl-
edge of Rupley's union activities. As noted above, the
General Counsel has made a prima facie showing that the
employee's protected activity was a motivating factor in
the Employer's decision. This finding is not only based
upon the credited testimony of Rupley but by the infer-
ences of unlawful intent drawn from the circumstances
surrounding the decision. Respondent has failed to estab-
lish that it would have taken the same action in the ab-
sence of the protected concerted activity. Respondent's
inconsistent actions and statements, some of which are
detailed above, support this conclusion. Further examples
include H. Howard admittedly telling Rupley that he
would call references other than Tri-Valley Datsun, yet
admittedly only calling Tri-Valley Datsun to determine
if Rupley was a good employee. H. Howard acknowl-
edged that Rupley indicated Tri-Valley Datsun would
not give him a good reference and hence he indicated he
would check other references. When H. Howard admit-
tedly ascertained the details of the Tri-Valley Datsun in-
cident, he did nothing, 23 even though he promised
Rupley he would consult with other references and, if
the other references were favorbale, Howard would con-
tact Rupley the following day. The testimony does not
detail any other specific incidents or actions ascribed by
Armstrong or anyone else to Rupley which would indi-
cate that Respondent would have taken the same action
absent the protected conduct.2 4 Therefore, it is found
that Rupley was discharged, and such action was for a
discriminatory reason in violation of Section 8(aX3) of
the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, Dunn Chevrolet, Inc.
d/b/a All Star Chevrolet, as set forth in sections III and
IV above, occurring in connection with Respondent's
"3 As previously indicated, H. Howard claims that Armstrong gave
him the details of the Tri-Valley Datsun incident around 5 or 6 p.m. on
October 2.
24 H. Howard's vague references to Rupley being a "troublemaker" or
causing "heat" on the showroom floor, standing alone, are insufficient to
show lawful motive. In fact, the use of such self-serving untrue general-
ities are indications of unlawful motive. See Golden Day Schools. Inc. v.
N.LR.B., 644 F.2d 834 at 838 (9th Cir. 1981). The use of the term "trou-
blemaker" also infers that the Employer knew that the employee was en-
gaging in union or concerted activity. See C-E Cast Equipment-Furnace
Systems; a Division of Combustion Engineering, Inc., 260 NLRB 520
(1982).
36
ALL STAR CHEVROLET
operations, described in section I, above, have a substan-
tial and intimate relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
CONCLUSIONS OF LAW
1. Dunn Chevrolet, Inc. d/b/a All Star Chevrolet is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Automobile Salesmen's Union, Local 1095, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has violated Section 8(a)(3) and (1) of
the Act by its discriminatory refusal to hire and/or its
discharge of Emery Lamarr Rupley.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, I shall rec-
ommend that it cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the
Act. Accordingly, Respondent shall be ordered to imme-
diately reinstate Emery Lamarr Rupley to his former job
or, if that job no longer exists, to a substantially equiva-
lent job, without prejudice to his seniority and other
rights and privileges, and to make him whole for any
loss of earnings and compensation he may have suffered
because of this illegal discrimination against him in his
employment as herein found. Backpay shall be computed
with the formula and method prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest per annum computed in the manner prescribed
by the Board in Florida Steel Corporation, 231 NLRB 651
(1977). 2
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 e
The Respondent, Dunn Chevrolet, Inc. d/b/a All Star
Chevrolet, Livermore, California, its officers, agents,
successors, and assigns, shall:
25 See, generally, Isis Plumbing & Hearting Ca, 138 NLRB 716 (1962).
26 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
1. Cease and desist from:
(a) Discharging, refusing, and failing to hire employee
applicants, or otherwise disciplining employees and fail-
ing to reinstate them for the purpose of discouraging em-
ployees from engaging in union or other protected con-
certed activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Emery Lamarr Rupley immediate and full re-
instatement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights or privi-
leges, and make him whole for loss of earnings in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Expunge from Respondent's files any and all refer-
ences to the discriminatory refusal to hire or termination
of employment of Emery Lamarr Rupley on or about
October 2, 1981, and notify him in writing that this has
been done and that evidence of this unlawful discharge
will not be used as a basis for future personnel actions
against him.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records and reports and all other records necessary
to analyze and determine the amount of backpay due
under the terms of this Order.
(d) Post at its Livermore, California, facilities copies of
the attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof and maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
27 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
37