G. K. Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1969

176 N.L.R.B. 416 (N.L.R.B. 1969)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. K. Chevrolet , Inc. and American Federation of
Professional Salesmen . Case 13-CA-8332
June 5, 1969
DECISION AND ORDER
BY CHAIRMAN MC CULI.OCH AND MEMBERS
JENKINS AND ZAGORIA
On January 13, 1969, Trial Examiner Arthur M.
Goldberg issued his Decision 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 Trial Examiner's Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended that such allegations be
dismissed. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings ,' conclusions , and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner that the
Respondent on March 15, 1968, discharged
Theodore Cobean as a reprisal for testifying
adversely to the Respondent's position in Case
13-RC-11391, and that such conduct on the part of
the Respondent violated Section 8(a)(l) of the Act
because it clearly indicated to employees, generally,
that they also would be subject to reprisals for
similarly testifying under the Act.'
However, we do not agree with the Trial
Examiner that Cobean was a managerial employee'
and the Respondent did not violate Section 8(a)(4)
of the Act by discharging him. The record shows, as
the Trial Examiner found, that Cobean, as "truck
'These findings and conclusions were based , in part , upon credibility
determinations of the Trial Examiner, to which the Respondent has
excepted . Having carefully reviewed the record , we conclude that the Trial
Examiner 's credibility findings are not contrary to the clear preponderance
of all the relevant evidence . Accordingly, we find no basis for disturbing
those findings . Standard Dry Wall Products . Inc, 91 NLRB 544, enfd.
188 F.2d 362 (C.A. 2).
'The Respondent 's motion , filed May 14 , 1969, for leave to cite
Corriveau & Routhkr Cement Block . Inc. v . N.L.R B.. 410 F.2d 347
(C.A. 1), as additional authority in support of its exceptions and brief is
granted in the absence of opposition . Contrary to the Respondent,
however , we find the Corriveau case inapposite.
176 NLRB No. 53
manager, " receives a salary of $25 a week more
than other salesmen, and prepares and submits bids
to governmental agencies , and orders trucks and
truck equipment. However, the record also
establishes that these duties account for only 20
percent of his time and approximately 10 percent of
his income. Moreover, the record reveals that truck
orders are of two kinds, (1) those to fill special
customer orders, and (2) stock replacements. The
number of trucks ordered for stock replacement is
determined largely by regular seasonal variation,
normal factory delivery waiting time, and sales
quotas set at monthly meetings attended by
company executives as well as other managers. Bids
prepared by Cobean are determined in substantial
part by reduced wholesale costs allowed by
Chevrolet Motor Company, and must be signed by
the Respondent's president. In these circumstances,
we find that in ordering trucks and submitting bids,
Cobean exercises some judgment, but within
established limits. It does not appear that Cobean
plays any part in the formulation or determination
of the Respondent's policy or that his
decision-making involves more than routine matters.
We therefore find, contrary to the Trial Examiner,
that Cobean is a rank-and-file and not a managerial
employee.'
As Cobean is a rank-and-file employee, we find
that the Respondent, engaging in the foregoing
conduct in violation of Section 8(a)(1), also violated
Section 8(a)(4)1 of the Act. Moreover, we believe it
essential , in order to protect the integrity of Board
processes, that such specific finding be made, as the
Respondent 's conduct constitutes a flagrant
interference not only with employees' rights but also
with the orderly processes under this Act.6
CONCLUSION OF LAW
We hereby adopt the Trial Examiner's
Conclusions of Law except for substituting the
following as paragraph 4, and renumbering the
subsequent paragraphs accordingly.
4. By discharging Theodore Cobean on March 15,
1968, the Respondent violated Section 8(a)(4) and
(1) of the Act.
'The Trial Examiner found that Cobean was not a supervisor as defined
in the Act . As the record indicates that his exercise of supervisory
authority , if any, is sporadic , we agree with this finding.
'Pacific Far East Line, Inc., 174 NLRB No. 172; Eastern Camera and
Photo Corp., 140 NLRB 569, 571 . See also Weaver Beatty Motor Co,
112 NLRB 60.
'As we found Cobean to be a rank -and-file employee , we do not reach
the issue or pass upon the applicability of the Act to managerial
employees . Iowa Industrial Hydraulics . Inc., 169 NLRB No. 27. Although
the General Counsel alleged a violation of Sec. 8(a)(3) of the Act, the Trial
Examiner did not find such violation. As the General Counsel did not
except thereto , we find it unnecessary to decide whether such conduct was
also violative of Sec . 8(aX3).
'Belser Aviation Corporation . 135 NLRB 399, 404-405 Accord,
NL.R.B v. Marine & Shipbuilding Workers , 391 U.S 418.
G. K. CHEVROLET, INC. 417
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, G. K. Chevrolet, Inc., Downers Grove,
Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein:
1. Delete paragraph I(b) and substitute the
following to the Trial Examiner's Recommended
Order:
(b) Discharging or otherwise discriminating
against any employee because he has given
testimony in a National Labor Relations Board
proceeding.
2. Delete the second indented paragraph of the
Appendix and add the following:
WE WILL NOT discharge or otherwise
discriminate against any employee because he has
given testimony in a National Labor Relations
Board proceeding.
new and used automobiles, trucks, and related products.
During the calendar year 1967 G. K. sold and
distributed automobiles, trucks, and related products
valued in excess of $500,000 of which products valued in
excess of $100,000 were shipped directly to G. K.'s
Downer Grove, Illinois, place of business directly from
points outside the State of Illinois.
The complaint alleged, the answer admitted, and I find
that Respondent is 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 and meets the
Board's standards for the assertion of its jurisdiction.
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleged and Respondent denied that the
American Federation of Professional Salesmen is a labor
organization within the meaning of the Act. In support of
its challenge to the status of the Charging Party the
Respondent sought to introduce into evidence sections of
the transcript in a prior Board proceeding, "Z" Frank,
Inc., 172 NLRB No. 254.' In that case the Board had
before it the question of the Charging Party's status as a
labor organization within the meaning of the Act and held
therein that American Federation of Professional
Salesmen is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG Trial Examiner: Upon a charge
filed on March 18, 1968, by the American Federation of
Professional Salesmen (herein called the Union), the
complaint herein issued on June 4, 1968. The complaint
alleged that G. K. Chevrolet, Inc. (herein called G. K. or
the Respondent), had violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein called
the Act), by threat of reprisal if the employees selected the
Union to represent them and by restriction of the
employees' right to discuss the Union on the Respondent's
premises. The Respondent was alleged to have violated
Section 8(a)(3) and (4) of the Act by discharging
Theodore Cobean because Cobean had engaged in union
activity and had given testimony under the Act. In its
answer Respondent admitted the discharge of Cobean but
denied that he was an employee within the meaning of the
Act. In all other aspects the answer denied the material
allegations of the complaint.
All parties participated in the hearing in Chicago,
Illinois, on July 22, 1968, and were afforded full
opportunity to be heard, to introduce evidence, to examine
witnesses, and to present oral argument. Oral argument
was waived and briefs were filed by General Counsel and
the Respondent.
Based upon the entire record in the case, my reading of
the briefs, and from my observation of the witnesses and
their demeanor I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
G. K. Chevrolet, Inc., is and has been at all times
material herein a Delaware corporation with its principal
office and place of business in Downers Grove, Illinois,
where it is engaged in the retail sale and distribution of
A. Background
The Union commenced its organizational campaign
among G. K.'s selling employees sometime in October
1967. On a Friday, the day that authorization cards were
first made available for employees' signatures, Theodore
Cobean was in the office of Respondent's president, Harry
Belovsky. Present also were Mrs. Belovsky, G. K.'s
general sales manager, Boucher, and Mrs. Cobean.
Belovsky testified that this was a social get-together in his
office after the showroom had been closed for the evening.
Cobean announced that the Union was coming in the
following Monday morning to sign Respondent's
salesmen. Cobean testified that following his
announcement Mr. and Mrs. Belovsky stated that the
Union was no good, that it was not worth joining, and the
men should not do so. He testified further that the
Belovskys said the Union was a bunch of crooks.
Belovsky testified that this session in his office took
place about the end of November but claimed that he had
first learned of the union movement from a letter he had
received from an employer association of which he was a
member. However, in his testimony Belovsky did not deny
the antiunion statements attributed to him and Mrs.
Belovsky by Cobean.
B. Interference, Coercion, and Restraint
1. Boucher's threat
As a regular practice sales meetings attended by
Respondent's sales personnel were held once or twice a
week. Theodore Grant, a former G. K. salesman, testified
that about 2 weeks after he was first hired by the
Respondent in November 1967 he attended a sales
That case was docketed prior to issuance of the Board 's decision therein
as Case 13-CA-8119.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting held in General Sales Manager Boucher's office.
Present were almost all of G. K.'s salesmen. Grant
testified without contradiction that at this meeting
Boucher told the salesmen that he knew of the union
movement, that it had been tried before and had failed,
and that the men would be better off if they did not sign
for or join the Union. Grant testified that Boucher
concluded his remarks by saying, "As far as he was
personally concerned, he wouldn't stick his neck out at
that time."
Respondent failed to controvert Grant's testimony.
Moreover , Grant impressed me during his appearance on
the stand as a credible witness and I find that Boucher
made the statements attributed to him by Grant. I find
that Boucher's concluding remark "could readily be
understood . that the employees stood to suffer . . .
reprisal if the Union were successful." Tilton Tanning
Corp., 164 NLRB No. 155. Thus, Boucher's statement
tended to coerce the employees in the exercise of their
Section 7 rights and constituted a violation of Section
8(a)(1) of the Act. Pruden Products Company, 170 NLRB
No. 32.
2. Limitation on union talk
About the first week in January 1968, General Sales
Manager Boucher held a meeting of the salesmen.
Theodore Grant testified that this meeting was held on the
day that he had been called to come back to work at G.
K. Boucher arranged for Grant to be picked up and
brought to Respondent's premises so that he could attend
this meeting . All of Respondent ' s salesmen were present
as well as Boucher and Sales Manager Kraus.
Grant testified without contradiction that Boucher did
most of the talking at this meeting and after announcing
certain new policies relating to customer relations Boucher
turned to the subject of the Union. It was Grant's
testimony that Boucher said that G. K. was not a union
hall, that there were to be no union meetings held at G.
K., and that Boucher didn't want the word union
mentioned on the floor.
Belovsky testified that there had been considerable
discussion of the Union among the salesmen and
managers out on the sales floor and in the " little"
enclosed offices which were assigned to the men.
Accordingly Belovsky instructed Boucher to tell the
employees "to tend to their business and don ' t congregate
on the floor and hold these little meetings during working
hours." Belovsky further testified that such a rule had
never been issued before as there had been no prior
problem of this nature.
Cobean testified that Boucher had instructed the
salesmen not to discuss the Union on the floor. In a
statement given to an agent of the Board during the
administrative investigation of the case, Cobean had
stated that "Boucher told the salesmen not to discuss the
Union on the showroom floor and not to let it bother our
work."
The complaint alleged that the Respondent through
Boucher had " instructed its employees to refrain from
discussing the Union in the plant." Based upon Cobean's
testimony that Boucher 's limitation on union discussion
related to the sales floor , his statement to the Board agent
that the limitation of union discussion was limited to the
showroom floor and had been coupled with the injunction
that it not bother the salesmen 's work, and Grant's
testimony that Boucher had stated he did not wish the
word "union" mentioned on the floor, I shall recommend
dismissal of this allegation of the complaint as I find there
was sufficient clarity in Boucher's instructions so that the
salesmen could understand that the interdiction of the
union discussion was limited to the time they were on the
selling floor and was not a general prohibition against
such discussion anyplace in G.K.'s premises. There does
not here exist an ambiguity in the rule announced by
Boucher which could lead to a reasonable interpretation
that the salesmen were forbidden to discuss the Union on
Respondent's premises. Cf. Fashion Fair, Inc., 163 NLRB
No. 22.
C. The Discharge of Theodore Cobean
1. The facts of the discharge
a. The events of March 14 and. 15, 1968
On March 14 and 15, 1968, a hearing was held on the
Union's petition for a representation election to be
conducted among the Respondent's selling employees. On
March 14, Belovsky, G. K.'s president, testified at length
concerning Cobean's alleged status as a supervisor and
managerial employee. In his testimony Belovsky
emphasized all of Cobean's activities which would remove
him from the status of an employee under the Act. At the
conclusion of Belovsky's testimony Merlin Griffith, who
was appearing on behalf of the Union at the hearing,
indicated that he might wish to recall Belvosky after
checking out certain information which was at variance
with Belovsky's testimony. Sometime during the evening
of March 14, while at work at the G. K. showroom,
Cobean received a subpena to testify on behalf of the
Union on March 15. Cobean showed the subpena to
General Sales Manager Boucher and Sales Manager
Kraus. When Mr. and Mrs. Belovsky returned to the
automobile agency at closing time Cobean overheard Mrs.
Belovsky say "that somebody had been stabbed in the
back," whereupon Mr. Belovsky advised her to be quiet
and said something to the effect that given enough rope
"they'd hang themselves." Belovsky claimed that he did
not disapprove of Cobean testifying but acknowledged
that he had told an employee that he could not understand
how a person could testify against him and come back to
work.
The following day, Friday, March 15, Cobean testified
concerning his duties as a G. K. employee. As testified
herein by Belovsky, Cobean contended that he was not a
manager and controverted certain of the testimony which
Belovsky had given the day previous. At the conclusion of
Cobean's testimony Belovsky resumed the witness stand
and modified certain of the testimony he had theretofore
given concerning Cobean's activities as a G. K. employee
and the sources of Cobean's income from sales for the
Respondent.
After testifying Cobean returned directly to the
automobile showroom where that evening he was called to
Belovsky's office where in the presence of Respondent's
president, Kraus, and Boucher, Cobean was informed that
his services were no longer required. In response to
Cobean's request for an explanation Belovsky explained
that Cobean had threatened to kill one of Respondent's
employees. Cobean's request for a confrontation with the
allegedly threatened employee was refused by Belovsky.
Prior to the discharge interview Cobean had heard no
word concerning his alleged threatening of another
employee.
G. K. CHEVROLET, INC. 419
b. Respondent 's reasons for Cobean's discharge
Respondent contends that in a discussion at a
neighborhood bar on Tuesday, March 12, Cobean, who
had been drinking all day, threatened the life of fellow
employee Leslie Williams, G. K.'s leasing manager.
Williams testified that on the night in question he left
work about 9:30 p.m. and in the company of another
salesman had gone to Reni's Tavern. When they entered
Cobean and a friend were already in the bar and Cobean
was quite intoxicated. Williams testified that when Cobean
started talking about the Union he said, "Mr. Cobean, I
don't care to talk about the Union. I have told you this
time and time again . I don't want to discuss it."
Thereupon, Williams stated, Cobean became very abusive
and Williams in anger said things he should not have said.
Sometime in this discussion Cobean allegedly said that he
would have the Union take care of Williams. At some
point the bartender asked both Williams and Cobean to
stop their argument and refused to serve any further
drinks to Cobean who left the Tavern. The bartender told
Williams that this was not the first time Cobean had been
refused drinks at Reni's. Williams stated that he was
upset by the incident and after having "another drink or
two" left, went to Belovsky's home to whom he reported
the incident, and then went home and to bed.
As a corroborating witness Respondent called Michael
J. Griffin, an automobile salesman employed by another
sales agency. Griffin testified that he and a coworker were
at Reni's Tavern in March and that three or four men
sitting at the bar were engaged in an argument during
which they discussed managerial status and their relative
sales ability. Griffin stated that the conversation at the bar
turned during the course of this discussion to the subject
of the Union. One of the participants sought to draw
Griffin into the argument but he said that he was a men's
clothing salesman and knew nothing about the subject
they were discussing . Griffin recalled one of the
participants saying he could outsell the other and that the
other man had better join the Union "and if he doesn't
join the Union, he's going to find himself in a box."
Griffin testified that the argument grew hotter and hotter
and that finally the bartender refused to serve one of the
participants who left and was shortly thereafter followed
out by the other.
When asked to identify Cobean and Williams, Griffin
was not sure where he had seen either of them before and
indeed was not sure that he had ever seen Williams before
the hearing herein. Finally, Griffin testified "I can't
swear or say it was them two men that was arguing that
night."
Cobean admitted a conversation with Williams at
Reni's on the evening of March 12. Cobean testified that
he was not working that day and had been drinking since
noon . During the conversation, Cobean recalled that
Williams stated that the Union was lousy, crooked, and
that he wouldn't join. Cobean answered that it was for
Williams to decide whether he wanted to join the Union
"but if he didn't, without the union , we'd be dead."
Following this conversation on Tuesday, March 12,
Cobean heard nothing further about the incident until his
discharge on Friday, March 15.
Belovsky testified that Williams came to his home on
March 12 in an upset condition and, in reply to
Belovsky's inquiry as to what was wrong, Williams stated
that Cobean had threatened his life if he didn't join the
Union and that Cobean would get the Union to take care
of him. Belovsky testified that he could tell that Williams
had been drinking but "not to the extent that he didn't
talk intelligently."
Belovsky testified that on March 13, the day after
Williams came to his home, he called his then attorney
and told him of the incident. When the attorney and
Belovsky met at the hearing on the representation petition
on March 14, the attorney told Belovsky to obtain a
written sworn statement and that this could be used to
discharge Cobean. After Belovsky left the hearing on
Thursday, March 14, he obtained a notarized statement
from Williams. Sales Manager Kraus was the notary
employed. In another point in his testimony Belovsky
stated that he had obtained the statement from Williams
on Wednesday, March 13. The notarization of Williams'
statement bears the date "3-14-68." It was Belovsky's
testimony that although he had decided to discharge
Cobean he realized he needed legal advice and the
discharge action took place only after his then attorney
advised that Williams' statement was strong.
2. Cobean' s status as employee
Cobean was first employed by G. K. in 1961 about 1
year after the Respondent first went into business. In 1966
Cobean commenced the period of employment with
Respondent which ended with his discharge on March 15,
1968. At that time Cobean returned to Respondent's
employ as an automobile salesman at the invitation of G.
K.'s then general manager.
About September 1966 Cobean was made "truck
manager" at a weekly salary of $75 plus commissions
which was $25 per week more than automobile salesmen
were paid. Respondent's president, Belovsky, testified that
G. K. does not have "that big of a truck business" and
had sold more trucks in times passed.
In February 1968 Cobean attempted to give up the title
of truck manager and the attendent duties. According to
Cobean, he told Sales Manager Kraus that he felt he
could make more money if he spent all of his time on the
selling floor. Belovsky testified that Cobean's reason for
relinquishing the truck manager position was based upon
his appointment as a union steward which Cobean felt
precluded his continuing as truck manager.'
The same day that Cobean attempted to resign his
position as truck manager, Belovsky called him to the
president's office and told Cobean that he could continue
as truck manager or leave G. K.'s employ. Cobean
remained as truck manager.
Respondent has a number of employees who carry the
title of "manager." They are: general sales manager, sales
manager , office manager, finance and insurance manager,
truck manager, lease manager , parts manager, service
manager , and body shop manager. In addition to the
foregoing, Belovsky testified that at the time of the events
herein there were seven salesmen including the lease
manager but excluding the truck manager.'
Though carrying the title of truck manager Cobean
took his regular turn with the other salesmen on the
The facts as to Cobean 's duties and status while in Respondent's
employ are based upon the testimony of Cobean and Belovsky. Where
there is no conflict between the two, I have relied upon a synthesis of their
testimony . However, where they are in conflict , I credit Cobean. Belovsky
was an unconvincing witness who repeatedly made conflicting statements.
Cobean impressed me as being more straightforward.
'Belovsky also testified that there were seven salesmen without the lease
manager.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showroom sales floor waiting on retail customers.
Belovsky testified that about 80 percent of Cobean's time
was spent in waiting on retail trade .4 Cobean received the
same commission on retail sales of automobiles as did the
other salesmen. It was Cobean's testimony that 90 percent
of his income from G. K. in 1967 was realized from the
retail sales of automobiles.
Cobean did not receive a commission on trucks sold by
other salesmen nor did he receive a percentage of profits
realized by the truck department . The used-car manager
received a commission on the net profits of the used-car
department.' Cobean testified that he did not receive a
Christmas bonus in 1967 but was told by the body shop
foreman that the latter had been paid such a bonus.
Belovsky testified that Cobean accounted for about 50
percent of Respondent 's truck sales . Other salesmen could
and did sell trucks and when doing so were not required
to receive Cobean's approval to complete the sale nor was
Cobean's approval necessary before salesmen quoted a
price on a truck . If, however , a salesman did not know
how to price a particular truck he could ask Cobean for
help. Belovsky explained that truck selling is different
from selling automobiles as every truck, other than "the
average little pickup truck ," is built and suited to the
customer ' s needs . Thus on fleet sales or buses which are
custom built to the buyer's specifications the seller must
know how to price the items requested and how to
ascertain the availability of the optional equipment
desired.
Cobean testified that if requested to do so by other
salesmen he would explain to them the availability and
pricing of optional equipment . Such assistance to other
salesmen did not include determining trade-in value which
responsibility was handled either by General Sales
Manager Boucher or Sales Manager Kraus.
None of the salesmen reported to Cobean nor did he
train other salesmen in the technique of truck selling.'
Cobean testified that he had never hired or fired a
salesman nor had he recommended such action. Fleet
sales of trucks were handled either by a salesman on the
floor if the buyer came to the showroom or if the inquiry
was made by mail it would be referred to Cobean for
answer . Invitations to bid on purchases by political bodies
such as villages , counties , police departments , etc. were
handled for G. K. by Cobean. He would work out the
price, the specifications called for in the invitation to bid,
and would prepare a request for assistance from the
Chevrolet Motor Company in the form of reduced
wholesale costs to G. K. on the items offered in such bids.
After Cobean prepared such a request to Chevrolet it was
signed by Belovsky. It was Cobean's duty to attend the
bid openings and if G. K.,'s bid was accepted, to accept
the order for Respondent. Whether or not G. K.'s bid was
accepted, Cobean was to prepare a report for the
Chevrolet Motor Company listing the bidders and what
their bids had been. If the competitor's bid at such an
opening failed to meet the specifications called for Cobean
was to object on behalf of G. K. On one occasion in 1964
Cobean had made such an objection at a bid opening.
All salesmen were assigned offices which differed from
those of the managers which had plate glass fronts.
Cobean's office did not have a plate glass front. Cobean's
'The hours Cobean spent on the showroom floor may have been equal to
those of other sales personnel because he worked longer hours than the
other salesman.
'Testimony of Belovsky
'Testimony of Belovsky.
office telephone was a simple instrument whereas those of
the other "managers" were multilined instruments. All
managers , including Cobean, had keys to the building
whereas salesmen did not.
Manager meetings were attended by Belovsky, General
Sales Manager Boucher, Sales Manager Kraus, and the
truck and fleet managers. At those meetings the problems
of getting more business for G. K. were discussed.
Monthly sales quotas for automobiles and trucks were
analyzed and methods for disposing of the vehicles
discussed . Mid-month meetings considered progress made
to date in meeting the monthly sales quotas. Cobean
testified that he did not attend all manager meetings as on
some occasions he was too busy to attend and at other
times he was not invited. He further testified that it was
not his responsibility to carry back to the salesmen the
sales problems and techniques discussed at these meetings.
Cobean placed orders for trucks with Chevrolet Motor
Company and maintained records on trucks. Orders for
trucks fall into two classes, those ordered for stock and
special orders to fill sales to customers. Belovsky testified
that in placing orders for trucks Cobean did not have to
get his prior approval. Belovsky further testified that on
orders for stock the quantities ordered would depend on
the season of the year and the waiting time for factory
delivery. At all times G. K. maintained a few pickup
trucks in stock since, in Belovsky's words, "there are
times when you should have more of something and less
of something else," Cobean was required to exercise
judgment in placing orders for stock. Cobean also placed
the orders for trucks sold to customers which required
special items from the factory and also ordered such items
as a dump body to fill a customer's order.
Both Cobean and Belovsky testified that at times
Cobean was "in charge" of the store. Cobean testified
that such occasions were rare and arose only when neither
Belovsky, Kraus, or Boucher were in the showroom. There
was no regular period of the day when this would occur.
When it did happen Cobean explained he was expected to
remain at the showroom. According to Cobean, in all of
1967 there may have been one or two deals to which he
placed his name but that in any event all sold orders were
checked by management before being forwarded to
Chevrolet. According to Belovsky once a week there was a
regular night on which the manager was off and when
Belovsky worked with Cobean. On that night, Belovsky
testified, Cobean would relieve him so that Belovsky could
go to dinner. When that occurred Cobean had authority to
appraise a trade-in and approve a sales contract. While
the deal would be discussed when Belovsky returned to the
showroom, G. K.'s president testified that the deal with
the customer stood as approved by Cobean. Belovsky
testified that Cobean had sold perhaps 25 or 30 cars in his
absence. As earlier stated when a conflict arises in the
testimony of Belovsky and Cobean I credit the latter.
Thus, I find that Belovsky inflated Cobean's authority to
operate Respondent ' s business in the absence of those
clearly authorized to manage G. K. and that Cobean's
role was of the lesser nature as he had testified.
Based on the foregoing credited testimony I find no
evidence that Cobean exercised any of the indicia of
supervisory status set forth in the Act.'
'Sec. 2 (11).
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend , lay off, recall,
promote , discharge , assign, reward, or discipline other employees, or
responsibly to direct them , or to adjust their grievances, or effectively to
G. K. CHEVROLET, INC. 421
While there were those occasions as testified by Cobean
when he was "in charge of the store" and he had on one
or two occasions approved a sale made by another
salesman "[i]t is well established that the sporadic exercise
of supervisory authority does not constitute an employee a
supervisor within the meaning of Section 2(11) of the
Act." Eastern Camera and Photo Corp., 140 NLRB 569,
571.
However, while I do not find Cobean to be a
supervisor, I conclude that he is a managerial employee
whose interests are more closely aligned with those of the
employer than the employees'. In reaching this conclusion
I note that Cobean prepares and submits bids to
governmental authorities for G. K. and regularly orders
trucks and truck equipment from the manufacturers, thus
committing the credit of Respondent. In ordering the
trucks for stock from Chevrolet Cobean exercises
independent judgment in determining the quantities and
these orders do not require approval from higher
management before being forwarded to the supplier. "The
Board has consistently found employees with broad
authority to pledge their employers credit to be
managerial." Eastern Camera and Photo Corp., 140
NLRB 569, 572; Weaver Motors, 123 NLRB 209,
215-216; Sunnyland Packing Company, 113 NLRB 162.
While the cited cases are in the representation field and
were therefore limited to determining whether the asserted
managerial employees should be properly placed within
the bargaining unit, the rationale for exclusion was based
upon identity of interest with management rather than
with those of the employees and resulted in the denial of
the benefits of employee status under the Act.
3. Findings and conclusions
written sworn evidence to support the allegations against
Cobean. Had Belovsky given credence to the threat, rather
than viewing it in its proper context of an alcohol
befogged exchange, I do not believe he would have
tolerated Cobean's presence in his organization after
Williams' report of the incident. In sum , I find that
Cobean's discharge was occasioned by his giving
testimony under the Act.
I further find that Cobean's discharge violated Section
8 (a)(1) of the Act.' My finding above that Cobean was a
managerial employee with interests more closely related to
those of management than to those of his fellow
employees does not under established law preclude this
finding. Southland Paint Company, 156 NLRB 22, enfd.
394 F.2d 717, 720-721 (C.A. 5).' It is well settled that the
statutory rights of rank-and-file employees are violated
when they are denied the testimony of supervisors who
have knowledge of the facts without the supervisors
risking discharge or other penalty for giving testimony
under the Act. N.L.R.B. v. Electro Motive Mfg. Co. Inc.,
389 F.2d 61 (C.A. 4). I see no distinction between a
supervisor and a managerial employee for the purposes of
this holding. Indeed, the courts have held that the power
of the Board to protect its witnesses should be coexistent
with its power to compel testimony. Oil City Brass Works
v. N.L.R.B., 357 F.2d 466, 471 (C.A. 5); Pedersen v.
N.L.R.B., 234 F.2d 417 (C.A. 2)." As Cobean's testimony
at the representation proceeding was compelled by a
Board subpena, I view my holding herein as necessary to
protect the Board's power to require testimony in its
proceedings.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
General Counsel contends and I find that the
explanation given by Respondent for Cobean's discharge
is pretextual and that the true reason for his termination
was Cobean's appearance at the representation hearing
and his testifying there in behalf of the Union. In reaching
this conclusion I have of necessity chosen between two
conflicting contentions. However, because I find that
Cobean was fired in part, if not entirely, because of his
testimony, I do not preclude a secondary finding that in
their drunken conversation on Tuesday, March 12,
Cobean as well as Williams said things they should not
have said. In concluding that Respondent's termination of
Cobean was motivated by its adverse reaction to his giving
testimony I give heed to Belovsky's testimony that he
could not understand how an employee could testify
against him and then come back to work at his
establishment. Further, I note Cobean's uncontradicted
and credited testimony that Mrs. Belovsky upon being
informed of the Union's supbena upon Cobean said that
someone had been stabbed in the back whereupon her
husband remarked that given enough rope they would
hang themselves.
I conclude therefore that the asserted great concern
about Cobean's alleged threat to Williams is cut from the
whole cloth. Williams' demeanor while testifying about
the incident at Reni's Tavern was hardly that of a man
relating an upsetting occurrence. Further, I do not credit
Belovsky's explanation of the delay in discharging
Cobean, namely that his then attorney wished to see
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 activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent unlawfully
discharged Theodore Cobean, in violation of the statutory
rights of its employees, I shall recommend that the
Respondent be ordered to reinstate him to his former or a
substantially equivalent position of employment without
prejudice to his seniority or other rights or privileges and
to make him whole for any loss of earnings he may have
suffered as a result of Respondent's unlawful conduct.
Backpay shall be computed in a manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest added
'The complaint (par IX) alleged that Cobean' s discharge was in
violation of Sec. 8(a)(1) of the Act.
'1 shall however recommend dismissal of the complaint allegation that
this conduct violated Sec. 8(a)(3) and (4) of the Act.
"See the Trial Examiner's discussion in Valet/ Forge Flag Company,
158 NLRB 1227, 1234-35, Trial Examiner 's Decision reversed by the
Board on other grounds.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto in the manner set forth in Isis Plumbing &
Heating Co ., 138 NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. G. K. Chevrolet, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. American Federation of Professional Salesmen is a
labor organization within the meaning of the Act.
3. By engaging in certain described conduct referred to
hereinabove in section III, (B), (1), and (C), Respondent
interfered with, restrained , and coerced its employees in
the exercise of rights guaranteed to them in Section 7 of
the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not committed other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
The Respondent, G. K. Chevrolet, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening its employees with reprisal should the
Union be selected to represent them as their bargaining
agent.
(b) Interfering with , restraining , or coercing its
employees in the exercise of their rights set forth in
Section 7 of the Act or in the vindication of those rights
through the processes of the Board by discharging, or
threatening with discharge or other loss of employment
rights, employees , supervisors , or managerial employees
who give testimony under the Act to the Board or its
agents in the course of investigation or other Board
processes.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed by
the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Theodore Cobean immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of
earnings he may have suffered by reason of Respondent's
discrimination against him as set forth in the section of
this Decision entitled "The Remedy."
(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 amount of backpay due
and all other rights under the terms of this Recommended
Order.
(c) Notify Theodore Cobean if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(d) Post at its premises in Downers Grove, Illinois,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 13 , after being duly signed by
Respondent 's representative , shall be posted by it
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
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT threaten our employees with reprisal if
the Union is selected to represent them as their
bargaining agent.
WE WILL NOT interfere with our employees' rights to
engage in or refrain from engaging in union activity or
their right to the protection of the National Labor
Relations Board by threatening discharge or
discharging any employees , supervisors , or managerial
employees who testify at a Board hearing.
WE WILL NOT in any other manner interfere with our
employees ' rights to self-organization.
WE WILL offer his job back to Theodore Cobean and
give him backpay from the day he was discharged.
WE WILL notify Theodore Cobean if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization.
G. K. CHEVROLET, INC.
Dated By
(Employer)
(Representative) (Title)
G. K. CHEVROLET, INC. 423
This notice must remain posted for 60 consecutive days directly with the Board's Regional Office , 881 U.S.
from the date of posting and must not be altered , defaced, Courthouse and Federal "Office Building, 219 South
or covered by any other material. Dearborn Street, Chicago, Illinois 60604, Telephone
If employees have any question concerning this notice 312-353-7572.
or compliance with its provisions , they may communicate