Geary Motor Sales, d/b/a Geary Ford

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1149 (N.L.R.B. 1982)

GEARY FORD
Geary Motor Sales, d/b/a Geary Ford and Evelyn
L. Schumacher. Case 20-CA-16221
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTF R
On February 19, 1982, Administrative Law
Judge James M. Kennedy issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions' and a supporting brief and the
General Counsel filed an answering 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 and
briefs and has decided to affirm the rulings, find-
ings, and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.:'
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
Order of the Administrative Law Judge and
hereby orders that the Respondent, Geary Motor
Sales, d/b/a Geary Ford, San Francisco, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
I Respondent has submitted with its exceptions certain affidavits in
support of its contentions that employee Schumacher's discharge was in
accordance with its collective-bargaining agreement with the Union and
that reinstatement is inappropriate here because it has no position at its
Horse Trader Ed Balalti location equivalent to the one for which it pre-
viously hired Schumacher We hereby grant the General Counsel's
motion to strike these affidavits. In so doing, we note, inter alia, that such
evidence was not previously made a part of the record and that Respond-
ent has not shown that the matters set forth in the affidavits constitute
newly discovered or previously unavailable evidence. See Secs 102 45
and 102.48 of the Board's Rules and Regulations, Series 8X, as amended.
However, we shall leave to the compliance stage of this proceeding the
resolution of any issues concerning the reinstatement order
2 In its exceptions, Respondent contends for the first time that the
Board should defer this case to the grievance and arbitration procedure
of its prior collective-bargaining agreement with the Union. As the issue
of deferral was not raised until after the hearing, we find that it was not
fully litigated and, consequently, that there is no basis for determining
whether deferral is appropriate See MacDonald Engineering Co, 202
NLRB 748 (1973).
3 We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from Schumacher's personnel record, or other files,
any reference to her unlawful discharge We shall modify the Adminis-
trative Law Judge's recommended Order and notice accordingly
261 NLRB No. 168
"(b) Expunge from Evelyn Schumacher's person-
nel records, or other files, any reference to her dis-
charge."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoricE To EMPILOYEFIS
POSTED BY ORDER OF THE
NATIONAI. LABOR RE.lATIONS BOARI)
An Agency of the United States Government
WE Wil . NOT tell employees that they
cannot be employed because they have joined
a labor union.
Wi wil.l NOT discharge employees because
they have joined a labor union.
Wi WilL. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them under
Section 7 of the Act.
WE wiL.I offer Evelyn L. Schumacher im-
mediate and full reinstatement to her former
job or, if that job no longer exists, to a sub-
stantially equivalent job, without prejudice to
her seniority or other rights and privileges pre-
viously enjoyed and WE WIL L make Evelyn L.
Schumacher whole for any loss of pay she
may have suffered as a result of the discrimi-
nation against her, with interest.
WEi wii.l expunge from Evelyn L. Schu-
macher's personnel records, or other files, any
reference to her discharge.
GEARY MOTOR SALES, D/B/A GEARY
FORD
DECISION
STATI MENT OF THE CASE
JAMES M. KFNNIH)Y, Administrative Law Judge: This
case was heard before me at San Francisco, California,
on January 12, 1982, pursuant to a complaint issued by
the Regional Director for the National Labor Relations
Board for Region 20 on June 9, 1981,' and which is
based on a charge filed by Evelyn L. Schumacher, an in-
dividual (herein called Schumacher), on May 8. The
complaint, as amended at the hearing, alleges that Geary
Motor Sales, d/b/a Geary Ford (herein called Respond-
ent), has engaged in certain violations of Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended
(herein called the Act).
I All dales herein refer to 1981, unless otherwitse indicated
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FAC I
I. RFSPONDINT'S BUSINIESS
Respondent admits that it is a California corporation
which at material times operated an automobile dealer-
ship in San Francisco. It further admits that during the
past year, in the course and conduct of its business, its
gross volume exceeded $500,000 and that it annually pur-
chases goods and materials valued in excess of $50,000
from sources outside California. Accordingly it admits,
and I find, it to be an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. TIHE lABOR ORGANIZATION INVOI.VED
Respondent admits, and I find, that Teamsters Local
960, International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (herein called
the Union), is a labor organization within the meaning of
Section 2(5) of the Act.
111. [IHI AL.EGED I) UNFAIR LABOR PRACTICtES
A. Background and Participants
Until June 1981, Respondent operated a Ford dealer-
ship on Geary Street in San Francisco. At that time the
dealership was sold to another corporation which today
operates that facility, now known as Vogel Ford. Re-
spondent continues in business at another location but
now trades under the name Horse Trader Ed Balatti. Re-
spondent's corporate president is Edward Balatti, and its
corporate vice president is his son, John. John had no
corporate duties despite his title. He was a salesman and
a member of the bargaining unit. Its business manager
during the time in question was Derrel Beard. Respond-
ent admits, nonetheless, that all three were 2(11) supervi-
sors and 2(13) agents.
Respondent entered into its contract to sell the dealer-
ship to Vogel Ford sometime in early 1981. As the June
I closing date approached, it began to wind down its
business and reduced its automobile sales force signifi-
cantly. It nonetheless continued to sell new and used
automobiles with a sales force of four or five. At all
times the sales personnel were represented for collective-
bargaining purposes by the Union. Respondent was
bound by a collective-bargaining agreement running
from June 1, 1980, to June 1, 1983.
The collective-bargaining agreement contains a stand-
ard union shop clause and also provides that the dealer
shall be the "sole judge of the competency and/or fitness
of salespersons." Furthermore, it contains another clause
which prohibits salespersons from performing work not
directly connected to automobile sales.
On March 7 Respondent hired Schumacher. She
worked for 13 days and left Respondent's employment
under circumstances to be described herein. Schumacher
testified she was hired to be an automobile salesperson;
Respondent's witnesses testified that she was hired to be
an "assistant" helping not only the sales department but
other departments in the dealership. Her duties involved
locating automobiles for dealer trades and "hiking" auto-
mobiles between dealerships. She had never worked in
an auto dealership before and was generally unfamiliar
with sales techniques and information. Her salary was
800 per month.
B. Schumacher' lTestimony
Schumacher testified she was hired by Ed Balatti to be
an automobile salesperson. She said she worked on both
the new-car floor and the used-car lot taking her direc-
tions from John Balatti. During the course of her em-
ployment she says she sold at least three automobiles,
new and used. On each occasion the executed sales con-
tract was filled out by another salesperson, usually Robin
Ross, though, she says, she first filled out a contract
form in the customer's presence. Each sale was jointly
credited to both of them on the sales "board"-a
window on which each monthly sale was recorded in
white shoe polish. On two of those occasions she ob-
tained cars by going to other dealers, once to Half Moon
Bay and once to Folsom and driving the automobiles
back to San Francisco.
She testified that John told her to use the business
cards of former salesmen. She was to scratch their names
out and write in her own. Such a card was received in
evidence.
During her testimony she demonstrated a great deal of
ignorance regarding sales techniques and facts. She was
unfamiliar with interest rates, automobile base prices,
option prices, and the markups and discounts associated
with them.
On March 18 John Balatti directed her to obtain an
automobile salesperson's license as required by state law
and she did so. She said that while she was at the De-
partment of Motor Vehicles office she spoke to a sales-
man from another dealership who told her about the
Union. On March 23 she went to the union office, paid a
fee, and joined. Later that morning, shortly before lunch,
she went to John Balatti's office to show him her union
card, saying that she had now completed "Step Two"
(step one being the DMV license). She testified he
became very upset, threw a pencil, and yelled, "For
Christ's sake, why did you do it?" She said his yelling
confused her; he asked again why she had joined. She re-
plied she thought she was supposed to.
She says he then went into a long tirade explaining
now that she had joined, she was a threat and could not
work. He said another set of books would be required.
She could not work 10 hours a day, it would cost more
money for health insurance and would limit her Sunday
work. About that time Ed Balatti came into the office,
overheard John tell her that perhaps she could still stop
the check; if she did maybe she could continue to work.
She remembers Ed remarking John "shouldn't have said
that" to which John replied "I didn't say anything to
Evelyn." She did not describe how the conversation
ended.
The next morning, March 24, when she reported for
work, she had another conversation with John. She testi-
fied he again told her she could not work because she
had joined the Union. She says he repeated that her join-
ing would cost Respondent additional money but she
1150
GEARY FORD
was unclear on the details. John, apparently, did not at-
tempt to discharge her.
Later, during John's lunch hour, Ed Balatti spoke to
her saying he wished she had not joined the Union, tell-
ing her "we cannot use you." A short time later she had
another conversation with Ed in his office. She said she
was "sorry about all the yelling yesterday" but could not
understand what the fuss was about. She says Ed told
her she could not continue working because she had
joined the Union. Then he told her to go down to the
bookkeeper's office and he would have a check for her.
She did so, cleaned out her desk, and left. Her check
was for 13 days' salary; no commissions were included.
C. Respondent's Testirnony
As noted, both Ed and John Balatti testified that Schu-
macher was hired as an assistant having no sales duties.
According to Ed, however, any employee was free to
follow a lead to a customer, including Schumacher. He
said that when a nonsalesman found a customer he or
she would be rewarded in some fashion and the money
which ordinarily would have gone to sales commission
would be treated as a house sale under the collective-bar-
gaining agreement. Thus, he says. the sales in which
Schumacher was involved were of that nature and not
those of a regular salesperson.
All three company officials who testified observed that
the Department of Motor Vehicles requires all personnel
who have any contact with customers to obtain an auto
salesman's license. It was for that reason, John says, that
Schumacher was asked to obtain a license, not because
she was actually engaged in the sale of automobiles.
They note that, while she was "hiking" an auto for the
dealership, she would be using dealer tags and if stopped
by a policeman she would be required to prove she had
the right to use a dealer tag. The salesman's license
would serve that purpose. Moreover, they noted that she
did have occasional contacts with customers when deli-
vering automobiles. In the circumstances, therefore, they
believed they were obligated to require her to be li-
censed.
John also testified that Schumacher had some miscon-
ceptions about her duties. On a couple of occasions he
received complaints from salesman Ross that she was at-
tempting to "horn in" on his commissions. He says he at-
tempted to put a stop to it but she did not appear to un-
derstand.
John also denied that on March 23 he had any signifi-
cant conversation with Schumacher. He testified "she
came in my office and had the union, the clearance slip,
and I didn't throw a pencil at her or anything like that
like she said. I went upstairs. It was getting close to
noon. I didn't have time to talk to her. At that time I
was training for the 49ers and I would work out from 12
until 4 every day. So, I didn't have time to deal with
her. I went upstairs and told my dad and he came down
directly and that was that and I was gone. There was no
heated conversation, no pacing behind my desk."
He agrees, however, that he did not understand why
she had joined the Union because she was not a salesper-
son. According to him it was "not her capacity" and, as
his own duties were principally that of a salesman and as
he was a union member himself, he believed if she were
to continue performing the duties she had been hired to
do she would cause Respondent to violate the clause in
the collective-bargaining contract barring salespersons
from doing the auto hiking and assistant work that she
had been performing. 2
It appears that all three company officials, Ed Balatti,
John Balatti, and Derrel Beard all believed that Schu-
macher's joining the Union while continuing to perform
the duties for which she had been hired, would cause
Respondent to violate the contract. Indeed, Ed says he
telephoned a union official, explained the situation to her,
and she agreed with his analysis. Accordingly, Ed testi-
fied, he could not use Schumacher in that circumstance
but he offered to arrange an employment interview for
her with a nearby Chevrolet dealership. John testified he
was aware there had also been an effort to get her an
interview with a Toyota dealership.
Schumacher agrees that she interviewed with the
Chevrolet dealership but denies any appointment was
made for her to interview with the Toyota dealership.
She also denies that Ed or John tried to clarify her
duties after she was hired.
In any event, it is clear that under Respondent's ver-
sion its management team was laboring under the belief
that Schumacher's joining the Union would put Re-
spondent in some sort of contract jeopardy. As a result,
Ed asked her to leave.
IV. ANAI.YSIS ANI) CONCI.USIONS
In view of the foregoing facts, it appears to me to be
unnecessary to attempt to resolve the credibility dispute
regarding what duties Ed Balatti told Schumacher she
had when she was hired, or to resolve disputes regarding
any alleged clarification of her duties at a later time. It is
clear that Schumacher believed she was hired as a sales-
person, but that fact is immaterial in analyzing the legal-
ity of her discharge. Respondent, according to the testi-
mony of both John and Ed Balatti, as well as a statement
made to the Regional Office by Beard, believed that
Schumacher's joining the Union required it to treat her
as a salesperson and as a member of the bargaining unit
covered by the collective-bargaining contract. That
belief is simply not well-founded. Whether the belief was
in good faith as suggested by Respondent or whether it
was a contrivance as might be suggested by Schumacher
or the General Counsel does not really matter. The fact
is that Ed Balatti did not wish to employ this individual
upon her joining the Union. Assuming that he made a
mistake in interpreting the collective-bargaining agree-
ment, even if that mistake were compounded by the
belief of the union official, a that mistake affords Re-
2 Both Ed and John Balaini refuted her testimony that she had been
told to utilize the business cards of former employees by scratching out
their names and writing in her own. They say that the print shop across
the street had a supply of blank business cards and would instantly print
the name of any new hire on them upon request. Assuming that to be so.
considering the business' wind down, their refutation is not complete, for
they might simply have chosen to save whatever small expense was in-
volved in printing,
I Since the union official did not testify I cannot discern whether she
was operating under a mistaken factual belief regarding Schumacher's
Continued
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent no defense. Compare Orr Iron, Inc., 207 NLRB
863 (1973), enfd. 508 F.2d 1305 (7th Cir. 1975). There an
employer fired an employee for supporting a union in the
mistaken belief that he was a supervisor, but the dis-
charge violated the Act because he was not.
Accordingly, I conclude that Respondent's discharge
of Schumacher on March 24 was a direct response to her
having joined the Union. Section 7 of the Act permits
employees to join or refrain from joining labor unions
whether or not those unions actually represent the em-
ployee under Section 9 of the Act. Her discharge in that
circumstance violated Section 8(a)(3) and (1) of the Act.4
The General Counsel also alleges that Respondent vio-
lated the Act when John Balatti, on March 23, allegedly
exclaimed to Schumacher when she told him she had
joined the Union, "What did you do that for .... why
did you join the Union?" Assuming that her testimony is
to be credited over John's version and there is some
reason not to do so, ' it does not appear to me that the
questions were questions at all. The General Counsel al-
leges them to be interrogations having a tendency to
coerce or restrain Schumacher in the exercise of her Sec-
tion 7 rights. However, the words as described by her
appear to be expressions of amazement not designed to
elicit a response. Accordingly, as I stated on the record,
I cannot conclude that they were uttered in coercive cir-
cumstances. I shall, therefore, recommend that the alle-
gation regarding unlawful interrogation be dismissed.
The last allegation involves a claim that on March 23
John B1alatti also threatened Schumacher with discharge
for having joined the Union. Here, despite any doubts
about Schumacher's credibility, I find the allegation has
been proven. She testified on that day John Balatti told
her by joining she had become a threat and could not
work, and the next day made a similar remark. In view
of her subsequent discharge in the fashion as described
by Respondent's own witnesses, the surrounding circum-
stances support her version, not Balatti's denial. Accord-
ingly, I find Respondent violated Section 8(a)(l) by tell-
ing her she could not work because she had joined the
Union.
V. THil Rt Mtl:)Y
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act by discharging its employee, Evelyn L.
Schumacher, for exercising her Section 7 right to join a
labor union, and Section 8(a)(l) for making a coercive
circumstances. Ed Balatti's testimony regarding her statnlentil is hearsay
insofar as it was offered for the truth of the matters asserted in the offi-
cial's declaration
* Respondent's second defense, that Schumacher had promoted herself
to a salesperson, fails in this circumstance She had engaged in the pro
lected act of joining the Union. By IBalatti's own testimony, he was con-
cerned, mistakenly, that she would cause him to breach the contract
when engaged in the duties she was hired to do Clearly he was not
going to permit her to be a salesperson, even if that is what she wanted
Moreover, her desire to become a salesperson would not be particularly
unusual. Another employee had recently followed nearly the same route.
Firing such an aspirant, therefore, seems unusually harsh. I believe, there-
fore, that the "attempt to promote herself" as a ground for discharge is
not believable.
5 I.e., demeanor and attitude as reflected by her tendency to visibly
react (in amazement, dismay, elc.) to the testimony oif others
statement, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. In
addition, I shall recommend that Respondent be required
immediately to offer reinstatement to Schumacher and to
make her whole for any loss of pay she may have suf-
fered by reason of the discrimination against her. Back-
pay and interest thereon shall be computed on a quarter-
ly basis in the manner prescribed by the Board in F W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). See, generally,
I.sis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and upon the
entire record in this case, I make the following:
CONCI.USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent violated Section 8(a)(3) and (1) of the
Act when it discharged its employee Evelyn L. Schu-
macher on March 24, 1981, because she joined a labor
union.
3. Respondent violated Section 8(a)(1) of the Act
when, on March 23 and 24, it told Schumacher she
could not work because she had joined the Union.
4. Respondent did not engage in any other violations
of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER6
The Respondent, Geary Motor Sales, d/b/a Geary
Ford, d/b/a Horse Trader Ed Balatti, San Francisco,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Telling employees they cannot be employed be-
cause they have joined a labor union.
(b) Discharging employees because they have joined a
labor union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately offer Evelyn L. Schumacher reinstate-
ment to her former job, or, if that job no longer exists, to
a substantially equivalent job, without prejudice to her
seniority or any other rights and privileges previously
enjoyed, and make her whole, with interest, for lost
earnings in the manner set forth in the section of this De-
Int the event no exceptions are filed as provided by Sec. 102.46 of the
Rules aid Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1152
GEARY FORD
cision entitled "The Remedy," dismissing if necessary
any employee who replaced her.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all of the
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its San Francisco, California, facility, copies
of the attached notice marked "Appendix." 7 Copies of
7 In the event that this Order is enforced hby a Judgment of a United
States Court of Appeals, the words in the motice reading "Posted hb
Order of the National lIabor Relations Board" shall read "'Posted Pursu
ant to a Judgment ,of the United States Court of Appeals tlnforcing an
Order of the National lIabor Relations Board."
the notice, on forms provided by the Regional Director
for Region 20, after being duly signed by its authorized
representative, shall be posted immediately upon receipt
thereof, and be maintained for 60 consecutive days there-
after, 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 covered by any other
material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
Ir Is FURTHIER ORI)D RI ) that the remainder of the
complaint be, and hereby is, dismissed.
1153