Ferrell-Hicks Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1963

142 N.L.R.B. 154 (N.L.R.B. 1963)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
214 F. 2d 360, cert. denied 348 U.S:'897; Fort Mason Fruit Co. v. Durkin , 214 F.
2d 363, cert . denied 348 U.S. 897 ). Thus, employees of an alfalfa dehydrator en-
gaged in hauling chopped or unchopped alfalfa away from the farms to the dehydrat-
ing plant are not employed in a practice performed "on a farm".
§ 780.144 Meaning of "farm".
A "farm" is a tract of land devoted to' the actual farming activities included in the
first part of section 3(f). Thus, the gathering of wild plants in the woods for trans-
plantation in a nursery is not an operation performed "on a farm". (For a further
discussion , see § 780.176 .) The total area of a tract operated as a unit for farming
purposes is included in the "farm ", irrespective of the fact that some of this area
may not be utilized for actual farming operations ( see NLRB v. Olaa Sugar Co.,
242 F. 2d 714; In re Princeville Canning Co ., 14 WH Cases 641 and 762). It is
immaterial whether a farm is situated in the city or in the country. However, a place
in a city where no primary farming operations are performed is not a farm even if
operated by a farmer (Michell v. Huntsville Nurseries , 267 F. 2d 286).
§ 780.145 Employment in practices on a farm
Employees engaged in building terraces or threshing wheat and other grain, em-
ployees engaged in the erection of silos and granaries , employees engaged in digging
wells or building dams for farm ponds, employees engaged in inspecting and culling
flocks of poultry , and pilots and flagmen engaged in the aerial dusting and spraying
of crops are examples of the types of employees of independent contractors who may
be considered employed in practices performed "on a farm".
Ferrell-Hicks Chevrolet, Inc. and Andrew Burinskas . Case No.
13-CA-4886. April 22, 1963
DECISION AND ORDER
On November 23, 1962, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
filed a brief in support to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in certain of the Respondent's exceptions.
The prime issue in this case is whether the Charging Party, known
as Andy Burns, was discharged for his union activities or for what
the Respondent regarded as good cause. The Trial Examiner credited
Burns' testimony in many respects and discredited Respondent's wit-
nesses who testified otherwise. Although we accept his resolutions of
142 NLRB No . 21.. - .
FERRELL-HICKS CHEVROLET, INC. 155
credibility based on demeanor, we are not required thereby also to
adopt his conclusion that Burns was discharged because of Respond-
ent's opposition to his activities on behalf of the Union.
Burns was one of Respondent's better salesmen. In his free time
he was also in charge of organizing activities for Automobile Sales-
men's Union of Chicago and Vicinity. He had never concealed his
union activities and had actively promoted an organizational drive
which led, in December 1961, to the holding of elections among the
employees of five automobile dealerships, including this Respond-
ent. On December 20, 1961, the Union lost the election conducted
among the Respondent's salesmen but was successful at two other
dealerships. The Union did not file objections to the conduct of the
election in the representation proceeding, nor has the Trial Examiner
found any independent violation of Section 3(a) (1), either during
the election campaign or in the period between the election and Burns'
discharge on May 9, 1962, more than 4 months later.
It is the theory of the General Counsel that Respondent's union
animus was revealed by the following incidents : before the election
(1) by a remark of Ferrell, Respondent's president, to Burns that "no
s.o.b. is going to tell me how to run my business"; (2) by holding a
Christmas party 2 days before the election at which bonuses were
distributed to salesmen; and (3) by sending a letter to its salesmen
during the preelection campaign which referred to the salesmen and
the Company as a marriage which should not be broken up by a third
party. After the election (1) Haggerty, the new-car sales manager,
prompted by a circular Burns had distributed on the results of the
election , asked Burns if he was through with the Union; (2) later, on
seeing a copy of the wage proposals which the Union had submitted to
the dealers where it had been certified, Haggerty told Burns that it
was economically impossible for dealers to pay those amounts and
stay in business; and (3) a week or so before Burns was discharged,
Haggerty asked him what was going on with the Union, to which
Burns replied that negotiations with the dealers were being delayed by
their evasive tactics and that the Government was going to have to
look into it.
The Trial Examiner agreed with the General Counsel that the in-
cidents set out above established that Respondent was opposed to
organization of its salesmen. He also accepted the General Counsel's
contention that the conversation between Burns and Haggerty shortly
before the discharge made it clear to Haggerty that Burns was far
from through with the Union and that Respondent might again be
faced with a petition for an election the following December. It was
in this context that the Trial Examiner evaluated and rejected Re-
spondent's defense that it had discharged Burns because he had made
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disrespectful remarks about management officials and because he was
attempting to create dissension between Haggerty and Frachalla, the
new- and used-car sales managers, respectively.
Frachalla had been discharged the year before from the position he
then held as new-car sales manager, and had reason to believe that
Burns had played a role in his termination.' Haggerty succeeded
Frachalla as new-car sales manager, and in March 1962, was helpful
to Frachalla in getting him rehired as used-car sales manager. Shortly
after Frachalla returned to Respondent's employ, Burns told him in
effect that Haggerty could not be trusted and was insincere. Two
months later, on the day before he was discharged, Burns then told
Haggerty that Frachalla was out to get his job. So far as the record
shows, the decision to discharge Burns was made and carried out by
Haggerty and Frachalla alone.
Each was aware that Burns had made uncomplimentary remarks
about him to the other, and Frachalla, for one, had reason to fear that
Burns' tactics might again cost him his job. Nor do we find it al-
together unreasonable to believe that Haggerty and Frachalla may
also have been influenced in deciding to discharge Burns by other re-
marks he had made about them and about Ferrell which'they con-
sidered to be disrespectful.
Whether the reasons which Respondent contends prompted it to
discharge Burns are pretexts depends basically on a judgment that
Respondent resented or feared Burns' activities on behalf of the Union.
We are not convinced that Respondent was strongly opposed to the
Union. It undoubtedly preferred that its salesmen remain unorga-
nized, but it had already been successful in one election while a second
could not be held for at least 7 months. At no time before or after
the election did it engage in conduct violative of Section 8 (a) , (1). In
view of its restrained attitude in the past toward Burns and the Union,
we think it is mere speculation to infer from Burns' remark to
Haggerty about other dealers being evasive, that Haggerty would
then decide that Burns intended to continue working to organize Re-
spondent's salesmen, and should, therefore, be'discharged as soon as
possible. Consequently we conclude, contrary to the Trial Examiner,
that the General Counsel has failed to establish by a preponderance
of the .evidence that the discharge of Andy Burns violated Section
8(a) (3) and (1) of the Act.
In view of the foregoing, we shall dismiss the complaint.
ORDER
[The Board dismissed the complaint.]
' The Trial Examiner did not refer to the uncontroverted evidence in the record on this
point.
FERRELL-HICKS CHEVROLET, INC. 157
CHAIRMAN MCCULLOCH, dissenting :
I would adopt the Trial Examiner's findings, conclusions , and recom-
mendations in their entirety.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner
David London in Chicago, Illinois, on September 17 to 19, 1962, pursuant to due
notice. The complaint, issued on June 22, 1962, by the General Counsel of the
National Labor Relations Board, on a charge dated May 14, 1962, alleged, in sub-
stance, that Respondent Ferrell-Hicks Chevrolet, Inc., had engaged in unfair labor
practices proscribed by Section 8(a) (1) and (3) of the aforementioned Act by dis-
charging Andrew Burinskas on May 10, 1962, because he joined or assisted a
labor organization, or engaged in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection. Respondent answered said
complaint and, though admitting that it discharged Burinskas, denied the commission
of any unfair labor practice.
Upon the entire record in the case,' and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, an Illinois corporation, is engaged in the sale of new and used cars,
trucks, and automobile parts, in the city of Chicago, Illinois. During the calendar
year 1961, Respondent, in the course and conduct of its business operations, sold
new and used cars, trucks, and new parts, and serviced new and used cars and
trucks at retail, the gross value of which exceeded $500,000. During the same period,
Respondent received goods valued in excess of $50,000 transported to its place of
business in interstate commerce directly from States of the United States other
than the State of Illinois. Respondent admits, and I find, that at all times material
herein it has been an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen's Union of Chicago and Vicinity is, and at all times material
herein has been, a labor organization within the meaning of Section.2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Andrew Burinskas, more generally known as Andy Burns and by which latter name
he will be referred to hereafter, was employed by Respondent as a salesman from
September 1955 to May 10, 1962, when he was discharged. In July 1961 he became
a member of Automobile Salesmen's Union of Chicago and Vicinity, hereinafter
referred to as the Union, and during the same month became chairman of its organiz-
ing committee. As such, he solicited membership in that Union from salesmen
employed by a substantial number of automobile dealers in the Chicago area, in-
cluding those employed by Respondent. The literature that was broadly circulated in
that campaign contained his signature as chairman of the organization committee.
Thereafter, Burns filed the Union's petition with the Board seeking an election
among the salesmen on five automobile dealers, including Respondent, to deter-
mine whether those employees desired collective-bargaining representation by the
Union. Burns actively participated in the consolidated hearings on those petitions
and gave testimony therein, as did Bert Ferrell, president of Respondent. On
November 27, 1961, the Board's Regional Director issued his Decision and Direction
of Election finding that a question concerning representation existed and ordering
the election among Respondent's salesmen requested by the Union. The date of that
election was subsequently fixed for December 20, 1961.
'Respondent' s unopposed . motion, made on or about October 24, 1962, to correct the
transcrpt of testimony is hereby granted, and the transcript is accordingly corrected.
Motions on which ruling was reserved at the hearing are disposed of in accordance with
the findings and conclusions that follow.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day following that which the aforementioned Regional Director had
limited as the time within which the notice announcing that election was to be posted,
Burns called Ferrells' attention to the fact that the notice had not yet been posted.
Ferrell replied that he had just received the notices that morning and that he had
no objection to having them posted by Burns. Burns went to Ferrell's office, took
the notices and proceeded to a glass partition near the telephone switchboard, and
posted the notice. As he was engaged in that task, Ferrell passed by and, looking
at Burns, said: "No s- of a b- is going to tell me how to run my business."
Burns turned to Ferrell and, raising his hand to his ear, asked Ferrell to repeat
what he had said. Ferrell looked at Burns and repeated the remark just attributed
to him, word for word. Burns "looked at him kinda funny," and walked away.2
On December 15 or 16, 1961, Ferrell informed Burns that the Christmas party, at
which a cash bonus was to be distributed to the salesmen, would be held on Tuesday,
December 19. Burns told Ferrell that he could not hold the party "this close to the
election" because of a "ruling . pertaining to 24 hours before election time when
[he could] not throw this party." 3 Ferrell said he would check the matter and
Burns left Ferrell's office. Ferrell made a telephone call and later told Burns that he
was "right," and that the party would be held on Monday, December 18. When
Burns asked why it had to be on that Monday, and not on the preceding Friday or
Saturday, Ferrell merely replied that he thought "the men [would] enjoy it on a
Monday," and the party was held on that day.
. A few days before the election, Respondent, over Ferrell's signature, sent a letter
to his salesmen other than Burns, "referring to salesmen and the Company as a
marriage and they couldn't afford to have a third party coming in to break up this
marriage."
The Union lost the election conducted on December 20 among Respondent's
salesmen , but was successful in the vote conducted on that day among the salesmen
of two other dealers.
Isabel LaBan, Respondent's bookkeeper and its observer at the election, testified,
credibly, that while "the men were taking turns to cast their vote" and Ferrell was
standing about 25 to 30 feet away, "telling the men to go and cast their ballots
and get the election over with," Burns observing Ferrell, said in LaBan's presence:
"Get that s- of a b- out of here." When the election was completed, LaBan
reported Burns' remark to Alma Klinnicke, Respondent's business manager. The
latter immediately informed Jack Haggerty, Respondent's sales manager, of Burns'
remark.
On the day following the election, Ferrell told Burns to "forget" the election, that
he had instructed "the boys not to tease [him], not to horseplay with him," but only
to go back to work. Burns remonstrated that he was "really hurt" by the results of
the election because he felt that "it was [Respondent's] money that beat [him]."
Because elections at other dealers were coming up, Burns drafted and signed a
bulletin entitled "Keep the Ball Rolling." In addition to arguments for continuing
the Union's campaign, the bulletin contained the following pertaining to the election
amongRespondents' employees:
The results of the first five elections are in. The results are encouraging.
Your Union of Automobile Salesmen now has' a nucleus on which to build for
the future.
The election losses point up some interesting facts: Ferrell-Hicks-the regular
professional auto salesmen were for the Union, the newly hired, come lately
"salesmen" were against the Union. The election was lost 12 to 8. A switch
of three votes would have meant a union victory. Ferrell-Hicks at the time
of filing for the election only employed 12 salesmen. By election time 20
salesmen were on the floor.
Burns mailed the bulletin to all members of the Union and personally distributed
copies thereof to Respondent's salesmen . Copies of this bulletin must have reached
Haggerty within a few days after the election for he then called Burns into his
office and told him that he thought Burns was "through with the Union." Burns
replied that Haggerty ought to "wait and see the results of the election to be held"
later that month and then he would know whether Burns was "through or not."
2 Ferrell admitted he made the remark attributed to him in the text, but testified that
It had reference to a telephone, cal l er who called him several minutes earlier and who gave
-him "quite' a chewing out." I do not credit that explanation.
3 See Peerless Plywood Company, 107 NLRB 427. .. ,
FERRELL-RICKS CHEVROLET, INC. 159
Haggerty admitted he made this inquiry so he would "know, honestly, whether he
was or wasn't" through with the Union.
In January 1962 the Union drafted wage prosposals for submission to the Ford
dealers where the Union had won the election. The proposals were mailed to the
union membership and copies were circulated among Respondent's salesmen by
Burns. Haggerty admitted he saw these proposals and that he told Burns that "it
was economically impossible for a dealer in the Chicago area to pay that amount of
money to their salesmen and stay in business."
During a day in the week or 10 days before Burns was discharged on May 10,
Haggerty asked him "what's going on" with the Union. Bums replied that the
negotiations with the other dealers were being unduly delayed by evasive tactics
and that the "government [was] going to start looking into this."
Thomas Franchalla, employed by Respondent as its used-car manager since
March 7, 1962, testified that during the evening of Monday, May 7, 1962, while four
or five salesmen were on duty, he observed a young couple drive up and enter the
showroom. He further testified that because the salesmen were "completely ignor-
ing the people," he greeted and gave them the price of a new car which "didn't quite
suit them." He then suggested purchase of a used car, took them over to the used
car lot in a "pouring" rain and, "within 30 minutes from the time they entered the
door, [they] were changing the plates to make delivery" of the used car. Franchalla,
as used-car manager, got no commission for making that sale. If the sale had been
made by a salesman, the latter would have been entitled to a commission thereon.
On the following day, May 8, some of the salesmen, "grumbling in dissatisfication,"
complained to Burns about Franchalla's conduct of the evening before in "grabbing a
customer [from] an up," and selling him a car.4 At a regularly scheduled meeting
of salesmen during the morning of Wednesday, May 9, Haggerty, in order to im-
prove the sales technique of the salesmen, brought up the incident of the previous
Monday when, in his words, Franchalla "had taken an up on the showroom floor."
Herbert Harrison, a salesman, with other salesmen "all pitching in, . explicitly
pointed out that it wasn't right for [Franchalla] to have taken that up." Haggerty
told the men that Franchalla "had not taken this up until the customer had walked
past four or five salesmen that were on the floor, spent some time waiting and look-
ing at a car, and then went over and greeted him and talked to him." At the con-
clusion of that discussion Burns said: "Ah s-t, he's just trying to make a point."
Though Haggerty testified that, in his opinion, Burns' remark "ruined the whole effect"
of his talk, the only factor to which he pointed for drawing that conclusion was that,
following Burns' remark, "all the men .. . broke out laughing." 5
Later during the same day, Burns came to Haggerty's office and told him that
"what Franchalla did . .. was a stinko," and added: "Jack, Tom Franchalla is out
to get your job."
Wednesday, May 9, the day of the aforementioned meeting being his day off,
Franchalla did not go to Respondent's premises during that entire day. He testified
however, that about 9 p.m. of that day, on his way home from a visit to his mother-in-
law, he went to Respondent's place of business to check and "see if everything was
in order in [his] department." He further testified that he met Haggerty there as
the latter was driving a car out of the building, asked him how things had gone that
day, and that Haggerty told him that the discussion at the meeting concerning
Franchalla's sale of the previous Monday evening "got kicked around, and [that]
Andy Burns told him to look out" for Franchalla.6 He further testified that when he
asked for more information, Haggerty told him that he had some people waiting
for him and asked Franchalla to stop at his home later that evening. Franchalla
reached Haggerty's home about 10 p.m. and Haggerty arrived an hour later.
At that time, Haggerty testified, he told Franchalla about what happened at the
meeting that morning, and that Burns had warned him that Franchalla was "out to
get [his] job." Franchalla testified he then repeated what he "had already reported" to
Haggerty, that Burns had told him that Haggerty "smile [s] with [his] teeth, but [one]
could tell [he] wasn't sincere by looking into [his] eyes," and that Haggerty was try-
* An "up" Is the term applied by salesmen to. designate which salesman it is who is
entitled to the next prospective customer who appears in the showroom.
Alvin Herman , a witness in behalf of Respondent , testified that Haggerty joined in the
laughter. .
9 Haggerty testified that he told Franchalla that he "had a little problem [that] morning
and also, had another problem in.[hisj office with Andy Burns." . ..
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to "start the Haggerty dynasty at Ferrell-Hicks." 7 Haggerty further testified that
he then told Franchalla that Burns had also called Ferrell "s- of a b-," and that
both men decided to discharge Burns on the following morning.
Burns was, however, not discharged until about 5 p.m. of the following day when
he was called into a private office where he found Franchalla and Haggerty.
Franchalla, scratching his head, told Burns he did not know "how to begin" but
then stated that he understood that Burns had "made a statement about [him] to
Jack Haggerty." Burns admitted that he had. Franchalla then asked Burns whether
he remembered the occasion in March 1962, described above, when he "made a
statement to [him] about Jack Haggerty." Burns replied that he did, and then asked:
"So what? Does this mean I'm fired?" Haggerty replied that it did.
Burns asked whether "there was anything wrong with [his] work as far as sales,
honesty . . . anything wrong with [his] job as a salesman?" Franchalla replied
there was not, and that while he thought that Burns was a "wonderful salesman, that
wasn't it." Burns then accused Franchalla of also having "made a lot of statements"
and one in particular which, to save Franchalla embarrassment, he wouldn't mention
in front of Haggerty. The latter thereupon left the office following which Burns
asked Franchalla whether he remembered calling Ferrell the revolting sexual name
reported in the transcript of testimony. Franchalla made no denial or reply, and
walked out of the office.
Burns thereafter filed a claim for compensation with the Division of Unemployment
Compensation for the State of Illinois. On July 31, 1962, that body made a deter-
mination that "it has not been shown that the claimant committed any act to cause
dissension between employees. He was not discharged for misconduct connected with
his work." 8
Concluding Findings
There is only one issue involved in this proceeding-was Burns discharged "be-
cause of his union activities and in order to defeat unionization of [Respondent's]
automobile salesmen" as urged by the General Counsel, or was he discharged for the
reasons stated by Respondent's counsel in response to my inquiry during the hear-
ing-that Burns made "remarks that were disrespectful towards management" and
which the latter "felt had the effect of dividing management."
The question so posed is not susceptible of easy determination as it involves an
inquiry into the state of mind of Haggerty and Franchalla. That inquiry requires
that all the facts and circumstances disclosed by the record be carefully considered
and appraised with due regard for the well-established principle that the harshness
of Respondent's action, by itself, does not establish unlawful discrimination.
That Respondent had knowledge of the extremely active role played by Burns in
behalf of the Union is not, indeed could not be, challenged on the record made
herein. Neither is it denied that Burns was one of Respondent's best salesmen.
Thus, at the Christmas party at which there was a distribution of a jackpot bonus
among all of Respondent's 15 to 20 salesmen, the amount of which was based on
each man's sales, Burns' bonus check was exceeded by only one other salesman.
Also based on his performance, he had for 3 to 4 years preceding his discharge,
achieved membership in Chevrolet's Hall of Honor Club, and had been awarded a
cabinetmaker's electric saw, a moving picture camera, binoculars, silver bookends,
and numerous other prizes.
In light of that record and the fact that Respondent was opposed to the organiza-
tion of its salesmen, the reasons assigned for terminating Burns' services must be
carefully scrutinized. Here again, however, I am duly mindful that an employer
may, by lawful means, express his opposition to the Union, discharge an employee
for a good or a bad reason, or no reason at all, except only that he may not do so
for a reason or by means proscribed by the Act. Nevertheless, human experience
cautions that employers do not lightly dispense with the services of a top notch
salesman and who is therefore, an outstanding moneymaker for his employer. With
all of the foregoing as guideposts , what were the offenses for which Burns was
discharged?
7 Burns testified he made such a remark, in substance , to Franchalla a day or two after
the latter was employed by Respondeent as used-car manage ron March 7, 1962, in response
to Franchalla's inquiry as to what Burns thought of Haggerty. Franchalla testified he
reported Burns' remark to Haggerty "within 30 minutes" thereafter.
8That determination, though not controlling on one, is nevertheless relevant, and may
be considered by me. derovox Corporation , 104 NLRB 246 ; Cadillac Marine cE Boat
Company, 107 NLRB 108, footnote 1 ; Mitchell Plastics, Inc., 117 NLRB 597, footnote 1.
FERRELL-HICKS CHEVROLET, INC. 161
The first "disrespectful" remark on which Respondent relies is the indecent remark
about Ferrell made by Burns to LaBan on the morning of the election on Decem-
ber 20, 1961 .9 The record does not disclose that Ferrell was ever advised of Burns'
disrespectful inquiry to LaBan and, though it was reported to Haggerty within a few
hours after it was made, the latter apparently did not deem it of sufficient gravity to
mention it to, criticize, or admonish, Burns therefor until he was fired 5 months
later.
Turning now to the alleged "dissension" caused by Burns-setting Franchalla and
Haggerty off, one against the other-the first evidence of this alleged campaign to
create dissension, Respondent contends, concerns Bums' statement to Franchalla
about Haggerty's lack of sincerity a day or two after Franchalla was hired as used-
car manager on March 7, 1962. Viewing this accusation in a light most favorable
to Respondent, I cannot attribute to it the implication now drawn therefrom by
Respondent. It was an evaluation of Haggerty, solicited by Franchalla, an opinion
which Bums apparently entertained. And, though Franchalla testified that he re-
ported the remark to Haggerty within an hour or two after it was made, Haggerty
was not sufficiently disturbed thereby to discuss or even mention it to Burns until he
discharged him 2 months later.
There remain for consideration the last incidents upon which Respondent relies-
Burns' remark at the sales meeting of May 9, and his statement to Haggerty later
during the same day that Franchalla was "out to get [his] job." With respect to
Haggerty's reaction to Burns' remark at the sales meeting and the part it allegedly
played in calling the nocturnal session with Franchalla, I am not persuaded that
Haggerty considered it so provocative as to require action by him. Indeed, the
laughter which it apparently induced, and in which Haggerty joined, helped to put an
end to a discussion of whether Franchalla had unduly deprived a salesman of the
commission on the car Franchalla sold on May 7. And, though Haggerty testified
to a conversation he had with Burns a few hours after the conclusion of the sales
meeting on May 9, the record fails to disclose that he then criticized Burns for his
remark during the meeting, or otherwise indicated any displeasure concerning Burns'
conduct thereat.
On the entire record, I do not regard as worthy of belief the announced conclusion
by Haggerty and Franchalla that Burns' remark to Franchalla concerning Haggerty's
lack of sincerity, and his remark to Haggerty that Franchalla was out to get his job,
spaced more than 2 months apart, belong in the same category, or that they led to
their conclusion that Burns was playing one against the other, and should be fired
for that reason. Instead, consideration of the entire record, coupled with my observa-
tion of the demeanor of the witnesses involved as they testified, have brought me to
the conclusion that they met clandestinely near midnight to concoct a defense having
the appearance of legality, and to cover the true reason for Burns' discharge-his
union activity.
I am convinced, and find, that Bums' remark at the sales meeting and his later
statement to Haggerty did not meet with such resentment by Haggerty as to induce
the near midnight meeting for an objective and honest consideration of those in-
cidents. Indeed, when Burns made the remark about Franchalla, Haggerty figura-
tively shrugged it off as mere gossip by telling Burns he did not believe it, and without
even deigning to inquire of him the basis for his accusation against Franchalla.
Instead, I am convinced that during the afternoon Haggerty realized that Burns'
accusation against Franchalla presented him with an opportunity to utilize it as
plausible, without disclosing the real reason for getting rid of the chairman of the
Union's organizing committee, thereby crippling, if not completely destroying, fur-
ther union activity among Respondont's salesmen. I am certain that if any other
salesman had indulged in the conduct which Respondent now advances as the reasons
for which Burns was discharged, that no such unusual meeting would have been held,
nor would he have been similarly treated.
Considering Haggerty's reaction when Bums' accusation against Franchalla was
made, I cannot believe that, absent an ulterior and discriminatory motive, he later
concluded that the matter was so urgent that it had to be considered in the late hours
approaching midnight and could not be postponed to the regular business hours of
the following day. Instead, I find that Haggerty brought that nocturnal meeting
about so that he could concoct a scheme or rationale for discharging Burns which
e Without condoning that remark, it should be noted, however, a similar remark was
twice directly addressed to Burns by Ferrell about a week earlier.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have an air of plausibility-reasons which prior to that time seemed not to
unduly disturb him.
. The timing of Bums' discharge lends credence to the conclusion just announced.
It will be remembered that it was only the day before that Harrison and other sales-
men at the sales meeting expressed resentment concerning Franchalla's sale, a resent-
ment which Burns again voiced to Haggerty during the same afternoon. Significant
also is the fact it was only about a week before he was discharged, that Burns, in
response to an inquiry by Haggerty as to "what's going on with the Union," told him
that "the government [was] going to start looking" into the evasive practices of
other dealers in delaying collective bargaining with the Union. This warning, to-
gether with what has heretofore been found with respect to Burns' union activity,
must have made it clear to Haggerty that Burns was far from "through" with the
Union, as Haggerty had earlier expressed the hope, and that he was, instead, still
extremely active therein. The foregoing, coupled with the fact that the Union could,
during the following December, again petition the Board for an election among
Respondent's salesmen, brought Haggerty to the realization that the best and quickest
way to avoid organization of those employees was to rid Respondent of the Union's
most active proponent. By discharging him for that reason, Respondent violated
Section 8(a)(3) and 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, in-
timate, 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
It having been found that Respondent engaged in unfair labor practices in viola=
tion of Section 8(a)(1) and (3) of the Act, it is recommended that Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. It is also recommended that Respondent offer Andrew
Burinskas immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination against him to the date of
offer of reinstatement, less interim earnings, and in a manner consistent with Board
policy set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay
shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
It is further recommended, in view of the nature of the unfair labor practices
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent, Ferrell-Hicks Chevrolet, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act and admits
to membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Andrew
Burinskas, thereby discouraging membership in the above Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By engaging in the conduct set forth above, Respondent has engaged, and.is
engaging, in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]