Inland Motors

National Labor Relations Board - Board Decisions

May 5, 1969

175 N.L.R.B. 851 (N.L.R.B. 1969)

INLAND MOTORS
Inland Motors and Automobile Salesmen 's Union
Local Lodge 2327, International Association of
Machinists , AFL-CIO. Case 31-CA-1104
May 5, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 18, 1968, Trial Examiner George
H. O'Brien issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, 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 that 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 this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
For the reasons below, we find, contrary to the
Trial Examiner, that Michael's activity on behalf of
the Union was a significant factor in Respondent's
decision to discharge him on May 7, 1968, and that
Respondent therefore discriminated against him in
violation of Section 8(a)(3) and (1) of the Act.
As set forth in more detail in the Trial
Examiner's Decision, the Union began a general
campaign to organize automobile salesmen in the
Southern California area in early 1968. On April 25,
Michael, whose place of work was at Redlands,
attended a union organizational meeting in another
city. He undertook to set up a union organizational
meeting in Redlands and to distribute union
literature and cards to Redlands area salesmen.
Thereafter, Michael made arrangements for a May
3 meeting to be held at a bowling alley in Redlands,
invited a union representative to attend, and also
made efforts to interest other automobile salesmen
to attend, soliciting them at their places of
851
employment.
Michael's lively interest in the union
organizational campaign first came to Respondent's
attention shortly after Michael returned from the
out-of-city union meeting, when Michael mentioned
the campaign to his superior, Sales Manager
William Baldwin. Michael asked Baldwin whether
Baldwin knew anything about the Union's campaign
to organize salesmen. Baldwin replied that he did
and indicated his antipathy toward the Union. He
told Michael that the Union was a bunch of thieves,
that he did not think much of it, that the Union had
been tried down at Long Beach sometime before,
and that it was no good. Michael then dropped the
matter.
As found by the Trial Examiner, some time later,
but on a date preceding May 7, Baldwin was
informed by someone, not identified in the record,
that Michael had visited the premises of a
Volkswagen sales dealer named Jack Feeley to try
to organize Feeley's salesmen and had been talking
union to them. Michael had in fact visited Feeley's
place of business on May I for that purpose.'
Michael was discharged on May 7 shortly after 3
p.m. in the circumstances described in the Trial
Examiner's Decision. He was notified of his
discharge by Charles Hall, the Respondent's
assistant sales manager. Hall told Michael that he
was being let go because he had not made enough
sales. He gave no other reason. It is undisputed that
before effecting the discharge, Hall - earlier that
afternoon and immediately before the discharge
- had conferred with Sales Manager Baldwin about
Michael.
That same afternoon, at about the time of
Michael's discharge, either shortly before or shortly
after, Baldwin gave two of Respondent's salesmen,
Coonce and Makowski, a somewhat different reason
for Michael's discharge. While having a drink with
the two salesmen at a nearby cocktail lounge,
Baldwin remarked that Michael was about to
become, or had become, "history." When Coonce
asked why, Baldwin replied that it had been decided
to let Michael go because the Respondent had been
informed of Michael's union solicitation of Jack
Feeley's salesmen and because Michael's record had
'One of the Feeley salesmen to whom Michael spoke on this occasion
asked him to go to another location to talk, stating that the salesroom was
"bugged ." Feeley , a witness called by the Respondent , and credited by
the Trial Examiner, admitted that there were, in fact, listening devices in
the salesrooms that were controlled by Feeley or his sales manager.
Feeley, however, denied knowing or seeing Michael, or knowing that any
person had been engaging in any union activity at his premises , and the
Trial Examiner credited his denial. Although the General Counsel
questions this credibility finding and asks that we disregard it, we perceive
no sufficient basis for doing so under our usual Standard Dry Wall
doctrine (91 NLRB 544, enfd. 188 F.2d 362 (C. A. 3). We therefore accept
the Trial Examiner's finding that although Baldwin told employee Coonce
that he had been personally informed by Feeley of Michael's visit to
Feeley's agency, Baldwin in fact acquired knowledge of that visit elsewhere
and "in some way which does not appear in the record." With the
fact of knowledge established by credited evidence, it is not of
controlling significance to the issues before us to determine how Baldwin
came to know of Michael's activity.
175 NLRB No. 139
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not been too good.
The Trial Examiner found that Baldwin's
above-described statement to Coonce and
Makowsky, relating Michael's discharge in part to
his union activity, was a deliberate threat to
intimidate the employees and to discourage their
engagement in union activities, and as such was
violative of Section 8(a)(1) of the Act. But, in the
Trial Examiner's view, from this it did not follow
that the same statement also constituted an
admission that Michael's union activity was in truth
a contributing reason for the discharge. Accepting
the Respondent's contentions, the Trial Examiner
found that Michael was in fact discharged solely
because of "undeniably low production" and
because he had been "insolent and insubordinate" to
Hall just before he was dismissed. Although it is
undisputed that Hall had conferred with Baldwin
before dismissing Michael, the Trial Examiner
discounted the normal weight to be given to a
statement such as Baldwin's by finding that Hall
was the one responsible for the discharge, and that
Baldwin's role was "entirely passive." As for
Baldwin's assertion to employees Coonce and
Makowski connecting Michael's union activities at
Jack Feeley's with the discharge decision, the Trial
Examiner stated that this amounted to no more than
a "little parable" that was "invented and delivered"
by Baldwin out of desire "to stimulate Coonce's
sales efforts."'
The General Counsel has excepted to the Trial
Examiner's finding that Respondent's decision to
discharge Michael was wholly unrelated to the
latter's union activities. We find merit in this
exception. We agree with the General Counsel that
the reason stated to Michael for his discharge, poor
production, was a pretext rather than the true
reason for his discharge; that Respondent's added
reason, first asserted at the hearing, that Michael
was guilty of insolence and insubordination toward
Hall was advanced as an afterthought; and that the
Trial Examiner erred in failing to consider
Baldwin's statement to Coonce and Makowski as a
probative admission that Michael's prounion
activities had played a significant part in the
Respondent's precipitate decision to discharge him.
Respondent's claim that Michaei was discharged
because of poor sales performance fails to withstand
close scrutiny. Michael was one of four salesmen
who were hired in March 1968. The undisputed
evidence reveals that two of these newly hired
salesmen had poorer sales records than Michael and
by far the poorest sales records of all Respondent's
employees; yet neither of them was terminated.
Furthermore, an analysis of the detailed sales
records produced by the Respondent for the period
between April 1 and May 7 shows that Michael's
record for the month of April compared favorably
21n point of fact, as the Trial Examiner's findings show , the sales
records of Coonce and Makowski surpassed that of any of the Respondent's
other salesmen
with those of two of Respondent's senior salesmen,
Vanderhoop and Scherco.' It shows, even more
significantly, that Michael's record for the first week
in May exceeded that of all but one of the eight
full-time salesmen whom Respondent employed. It
thus appears that Michael's sales record was not in
fact a poor one in comparison to those of the other
salesmen, and was one, moreover, that had been
improving steadily over the 8-week period he
worked for the Respondent. Respondent never
advised Michael until the moment it discharged him
that it was dissatisfied with his sales.
The added defense to which Respondent shifted at
the hearing, and on which the Trial Examiner
appears primarily to have relied in finding the
discharge was for cause, also has serious
shortcomings. It is true that on the afternoon of
May 7 Michael exhibited a belligerent and perhaps
insolent attitude towards Hall when Hall questioned
him about his failure to show up for the 2 p.m. sales
meeting Hall had scheduled for that day.' The
question, however, is not whether Respondent might
have fired Michael for that reason, but whether it
did. We deem it highly significant in this respect
that Respondent did not mention insubordination or
insolence to Michael as a reason for its action at the
time it discharged him. The only reason then given
him was that his sales record was poor.' We deem it
also highly significant that in its answer to the
complaint which was filed on July 25, more than 3
months after the discharge, Respondent alleged that
"Michael was discharged for the reason that his
production was not of sufficient quality and quantity
to comply with the standards of Respondent
company," and gave no other reason. In these
circumstances, we cannot accept as plausible Hall's
testimony that he discharged Michael because
Michael was insubordinate and because he (Hall)
wanted to gain the respect of the other salesmen. If
insubordination was the actual reason, Hall had
nothing to gain by concealing it from Michael, and
if Hall thought that making an example of Michael
would aid him in his relations with other salesmen,
his purpose was self-defeating by not making that
reason known. These considerations in our view give
credence to the General Counsel's position that
Respondent's insubordination defense was advanced
as an afterthought when Respondent realized that
'According to Respondent's records, Scherco, Vanderhoop, and Michael,
each sold respectively five, four, and three automobiles in April. However,
Michael's fewer sales produced slightly more by way of gross profit for
Respondent than did those of Scherco or Vanderhoop
"Respondent held sales meetings almost daily - sometimes in the
morning and sometimes in the afternoon As found by the Trial Examiner,
Michael was scheduled to begin working at 2 30 p in on May 7, and
Michael did not report at Respondent's premises until a few minutes
before 3 Michael explained to Hall that he was late arriving because he
had been occupied in a meeting with a prospective customer Respondent
did not claim then, nor does it now, that Michael's explanation was false,
or that this explanation did not provide an acceptable excuse for Michael's
absence from the sales meeting
'Similarly , Baldwin made no mention of insubordination or insolence
when he explained to employees Coonce and Makowski that same day why
Michael had become, or was about to become, "history "
INLAND MOTORS
the reason initially given, poor sales record, could
not stand up under close examination.
In view of the unpersuasive character of
Respondent's assigned reasons for the discharge, we
believe that probative weight as an admission
against interest should be given to Baldwin's
revelatory statement to Coonce and Makowski that
Michael's union activities was a motivating factor in
the discharge decision. On the facts of this case, we
are unable to accept the Trial Examiner's premise
that Baldwin's role was a "passive" one and that he
was in a position only to speculate but not to know,
the reason for the discharge. Baldwin, as sales
manager, was not only the ranking supervisor of
Respondent' s sales force, but he had been
concededly consulted by Hall, the assistant manager,
in advance of the action taken.' The Trial Examiner,
we think properly, credited Coonce's testimony
concerning the explanation Baldwin gave for the
discharge. Having done so, the Trial Examiner was
not justified in brushing aside the evidentiary import
of that explanation by speculating as he did that
Baldwin ' s reference to Michael ' s union activities was
intended by him only as a "little parable" aimed at
stimulating better sales efforts by employees Coonce
and Makowski. The Trial Examiner's speculation in
this respect finds no support in any testimony. Nor
does it in reason, particularly when it is recalled that
these two employees ranked at the top of
Respondent's sales force in their record of sales. His
speculation,- moreover, is at variance with the
finding he elsewhere made, and which we believe is
founded on reasonable inference , that Baldwin's
union-related explanation was a "deliberate" threat
intended to restrain union organization by other
employees.
Nor do we have here a situation where a
statement in the form of an admission is so patently
at odds with other clearly established facts that no
effective force can be given it. On the contrary, the
record as a whole tends to confirm rather than to
rebut the truth of the declaration made. Thus
Respondent's animus toward the Union is reflected
not only in the declaration itself but by Baldwin's
earlier conversation with Michael as reported above.
The fact that Baldwin chose unlawfully to threaten
other employees with discharge for engaging in
union organization indicates at the very least that
Respondent was not above taking unlawful action in
the case of Michael. The timing of the discharge in
relation to Michael's revealed interest in union
organization, coupled with Respondent's failure to
support at the hearing the explanation it gave
Michael as the sole reason for its action, adds
strength to an inference of unlawful motivation. In
these circumstances, unlike the Trial Examiner, we
are unable to conclude that the union - related
explanation given by Baldwin to Coonce and
^We note also that as of May 7, the date Michael was discharged, Hall
had been in Respondent ' s employment for only about 3 weeks.
853
Makowski almost contemporaneously with the
action taken was an invented rather than a true
reason and thus not entitled to probative weight.
All of the foregoing lead us to the conclusion -that
Michael's precipitate discharge is fairly attributable
to Respondent's hostility to the Union rather than
to Respondent ' s alleged concern with Michael's
performance of his duties as an employee. We find,
accordingly, that by discharging Michael on May 7,
1968, Respondent discriminated against him in
violation of Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that Respondent discharged Forrest
E. Michael on May 7, 1968, in violation of Section
8(a)(3) and (1) of the Act, we shall order
Respondent to cease and desist therefrom, and
require that it take certain affirmative action which
we find necessary to remedy and remove the effects
of this unfair labor practice and to effectuate the
policies of the Act. Accordingly, we shall order that
Michael be offered immediate and full reinstatement
to his former or substantially equivalent job without
prejudice to his seniority or other rights and
privileges and that he be made whole for any loss of
pay suffered by him by reasons of the discrimination
against him from the date of his discharge on May
7, 1968, to the date of the offer of reinstatement.
Loss of pay shall be computed as prescribed in F.
W. Woolworth Co., 90 NLRB 289, and interest on
such backpay shall be computed at 6 percent per
annum in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. We shall also order that the
Respondent make available to the Board upon
request payroll and other records in order to
facilitate the checking of the amount of backpay
due.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's
Conclusions of Law, as modified below:
Delete paragraphs 4 and 5 and substitute the
following therefore:
4. Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Forrest E. Michael on May
7, 1968.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Inland Motors, Redlands, California, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Automobile
Salesmen's Union Local Lodge 2327, International
Association of Machinists, AFL-CIO, or any other
labor organization of its employees, by engaging in
discrimination in regard to hire or tenure of
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of employees or any term or condition
of employment.
(b) Restraining or coercing employees in the
exercise of their right to self-organization by stating
or suggesting to employees that union or protected
concerted activities have resulted in the discharge of
other employees and may result in their discharge.
(c) Interfering in any other manner with,
restraining , or coercing any employee in the exercise
of his right to self-organization, to form, join, or
assist any labor organization; to bargain collectively
through representatives of his own choosing; to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection; or to refrain from any and all such
activities.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer Forrest E. Michael 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 pay he may have suffered by reason
of his discharge, in accordance with and as set forth
in the section of the Decision entitled "Remedy."
(b) Notify the above-named employee 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.
(c) 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 under the terms of this
Order.
(d) Post at its agency copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
31, 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 31, in
writing, within 10 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
'In the 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 be substituted for the
words "a Decision and Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order 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 discourage membership in, or
activities on behalf of Automobile Salesmen ' s Union,
Local Lodge 2327, International Association of
Machinists , AFL-CIO, or any other labor organization,
by threatening to discharge , or by discharging, or by
otherwise discriminating , in regard to the hire or tenure
of employment , or any term or condition of
em loyment , of our employees.
WE WILL NOT, in any other manner , interfere with,
restrain , or coerce our employees in the right to
self-organization , to form , join , or assist labor
organizations , to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities or other mutual aid of
protection except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as authorized by Section 8(a)(3) of
the Act.
WE WILL offer to employee Forrest E . Michael
immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to
his seniority or other rights and privileges previously
enjoyed and we will pay to Forrest E. Michael, with
interest at 6 percent , any wages he lost from the date of
his discharge to the date of our offer of reinstatement.
WE WILL notify Forrest E . Michael 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.
Dated By
INLAND MOTORS, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlette Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 213-688-5800.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. 0 BRIEN, Trial Examiner: On September
25, 1968, a hearing was held in the above-entitled matter
in the Council Chambers of the City Hall, Redlands,
California, at which all parties appeared and participated.
The complaint , issued by the Regional Director, Region
31 of the National Labor Relations Board, on July 24,
1968, is based upon a charge filed by the Union on May
24, 1968, and alleges violations of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended. Upon
the entire record in this case , including my observation of
the witnesses, and after due consideration of the briefs
INLAND MOTORS
filed by the General -Counsel and by the Respondent, I
make the following: -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Inland Motors, herein called Respondent, is a
California corporation having its principal office and place
of business at Redlands, San Bernadino County,
California, where it is engaged as a franchised automobile
dealer in the retail sale of new and used automobiles and
trucks. During the past year, which period is
representative, Respondent, in the course and conduct of
its business operations, received from the sale of
automobiles and trucks gross revenues in excess of
$500,000 and purchased and received automobiles, trucks,
and parts valued in excess of $50,000 which were shipped
from points located outside the State of California directly
to Respondent's Redlands place of business. Respondent
is now, and has been at all times material herein, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
Automobile Salesmen's Union, Local Lodge 2327,
International Association of Machinists, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in substance that Forrest E.
(Gene) Michael, a salesman, was discharged May 7, 1968,
because of his ictivities on behalf of the Union and that
Respondent, through its sales manager, William C. (Bill)
Baldwin, violated Section 8(a)(1) of the Act by telling
employees that Respondent was discharging Michael
because he had assisted the Union. Respondent, in its
answer, denied the commission of any unfair labor
practice, averred that it had no knowledge of any union
activity by Michael, and stated that Michael was
discharged because his production was not of sufficient
quality or quantity to comply with the standards of
Respondent. After the close of the hearing, Respondent's
counsel moved to amend the answer to state, as an
additional ground of discharge, that Michael had been
insubordinate to his immediate supervisor, Assistant Sales
Manager Charles (Chuck) Hall. The General Counsel, in
his memorandum in opposition to the motion for leave to
amend, states cogently and correctly:
The general denial [in Respondent's original answer]
encompasses both grounds set forth in the amended
answer, and both grounds were actually litigated at the
hearing.
For the reasons stated by the General Counsel, leave to
amend is denied. I have, however, considered the
Respondent's amended answer as a statement of position.
The issues litigated at thearing are:
1. Whether the discharge of Forrest E. (Gene) Michael
on Tuesday, May 7, 1968, was motivated by one or any
combination of the following factors: (a) Michael's
activities on behalf of the Union among his fellow
salesmen or with salesmen employed by other automobile
dealers in the city of Redlands, (b) Michael's low
855
production and inadequacy as a salesman , (c) Michael's
attitude towards supervision, (d) Michael's refusal to
follow the instructions of his supervisor, Charles Hall.
2. Whether on May 7, 1968, Respondent, through its
sales manager, William (Bill) Baldwin , told employees
that Michael had been discharged because of his
engagement in union activities.
B. Organization , Composition
and Production of Respondent's
Sales Force, January 1, 1968,
through May 7,1968
Respondent holds the Ford Motor Company franchise
for Redlands, San Bernadino County, California. Its place
of business comprises a salesroom, a repair shop and a
used car lot. It has a total of about 42 employees of
whom 6 to 8 are regular full-time salesmen. The
salesroom is open from 8 a.m. to 9 p.m., Monday through
Saturday. The salesmen are divided into two shifts. One
shift works the hours of 8 a.m. to 2:30 p.m. on Monday,
Wednesday, and Friday and the hours of 2:30 p.m. to 9
p.m. on Tuesday, Thursday, and Saturday. The other shift
works the hours of 2:30 p.m. to 9 p.m. on Monday,
Wednesday and Friday and the hours of 8 a.m. to 2:30
p.m. on Tuesday, Thursday, and Saturday. All salesmen
are required to attend regular sales meetings at 8 a.m. on
Monday and 8 a.m. on Friday.
The entire operation is under the general supervision of
Respondent's president and principal stockholder, Lee
Guggisberg, who is also Respondent's most effective
salesman . All salesmen, except Guggisberg, were from
November 1967 to April 15, 1968, under the sole
immediate supervision of William (Bill) Baldwin, Sales
Manager. On April 15, a second sales manager
(sometimes called Assistant Sales Manager), Charles
(Chuck) Hall, was employed with authority and
responsibility apparently coordinate with that of Baldwin.
The salesmen are paid on a straight commission which is
computed as 25 percent of the Respondent's gross profits
on each sale, after certain adjustments are made. Both
sales managers possess and exercise the power to hire and
fire. Both sales managers are expected to and do assist
salesmen with reluctant or difficult customers, and when a
sale is completed with the manager's assistance the
salesman still receives the entire commission. Every
"deal" made by any salesman must be approved by either
Guggisberg or by one of his sales managers.
When Baldwin became sales manager in November of
1967, he began keeping a private record of every sale,
recording in his book the date of the sale, the name of the
customer, a description of the automobile sold,
Respondent's stock number, a description of the
automobile traded in, if any, the amount credited on the
trade in, the gross profit to the Respondent, and the name
of the salesman who should receive the commission for
the sale. Findings in this section of this decision are based
upon this record as explained by Mr. Baldwin.
In January, 1968, six regular full-time salesmen were
employed. These six sold 47 cars, Baldwin sold 1, and
Guggisberg sold 12, for a total of 60.
In February, the same six salesmen sold 59 cars,
Baldwin sold 3, O'Leary (a part-time salesman) sold 1 and
Guggisberg sold 13, for a total of 75.
In March, three of Respondent's regular salesmen left
its employ and four new names were added to Baldwin's
record. These were Michael, who made his first and only
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale on March 29, Tony ...., who made one sale on March
27, Howard Ogden , who sold nothing , and Rudy Juarez,
who sold nothing . A total of 59 cars were sold during the
month , and 14 of these sales were credited to Guggisberg.
In April, the following sa les were made:
Name of April 1 to April 16 to
Salesman April 15 April 30
No. of
Sales
Gross
Profit
No. of
Sales
Gross
Profit
Guggisberg 0 4 1,078
Baldwin 2 450 4 553
O'Leary 1 134 1 233
Makowski 9 2,258 4 1,428
Vanderhoop 3 908 1 150
Scherco 2 449 3 586
Coonce 5 1,416 1 365
McAndrews 3 544 4 1,535
Michael 2 568 1 500
Ogden 2 395
Juarez 1 237
In May through the date of Michael's discharge, nine
cars were sold:
Name of Date of Gross
Salesman Sale Profit
McAndrews May 1 347
Coonce 3 150
Ogden 3 250
Hall 3 235
Michael 3 362
Guggisberg 3 275
Ogden and 6
Michael 475
Makowski 7 119
Ogden 7 373
C. The Union's Organization Campaign
and Michael's Union Activity
The Union, in January 1968, began a campaign to
organize automobile salesmen in Los Angeles and Orange
Counties, and later expanded the campaign to take in all
of Southern California. A mass meeting which had been
advertised in the Los Angeles Times was held in the
Shrine Auditorium in Los Angeles in February. Other
meetings were held in outlying areas and were publicized
by members of the Union's staff going from dealership to
dealership with handbills. Sometime in the spring, a
used-car wholesaler left with Guggisberg a handbill which
he had picked up at a Pasadena dealership. At sometime
in the spring at some meeting of the Redlands Automotive
Association (of which Guggisberg is president), there was
some discussion of the Union's campaign. There is no
evidence that Guggisberg was aware of any union activity
in Redlands and no evidence that Guggisberg entertained
any union animus.
On Thursday, April 25, Michael attended a union
meeting in Long Beach and returned to Redlands with
union literature and membership application forms. About
the same time he asked the service manager, Bill Baldwin,
whether Baldwin knew anything about the Union's
campaign to organize salesmen. Baldwin replied that he
did, that the Union was a bunch of thieves , and that he
did not think much of it, that the Union had been tried
down at Long Beach some time before , and it was no
good . Michael dropped the matter.
Michael arranged with the Union to have a union
representative at the Empire Bowl in Redlands on Friday,
May 3 . In the days preceding , he visited the Chevrolet
agency and Jack Feely's Volkswagon agency where he
invited salesmen to meet with the union representative. He
also invited a fellow salesman , Coonce . Coonce met with
the union representative , Michael did not appear , nor did
any other invitee.
D. The Discharge of Michael
Hall announced at the regular sales meeting on
Monday morning , May 6 , that there would be a special
meeting for all salesmen on May 7 at 2 p.m. Michael
worked the morning shift on Monday and was scheduled
to work the afternoon shift which started at 2:30 p.m. on
Tuesday. When Michael reported for work on Tuesday a
few minutes before 3, he was questioned by Hall about
why he missed the sales meeting and why he was late for
work . Michael , with profane and vulgar emphasis, in a
loud voice on the open used -car lot and in the presence of
other salesmen , lectured Hall.
Michael testified:
A. I came to work and had been there a few
minutes, and I asked Gary Vanderhoop did I miss a
sales meeting, and he said , " Hell, no, like all the rest of
the days."
And so I went in my office and sat down and pretty
soon Chuck came around the corner and said, "Gene, I
want to talk to you." And I got off the chair and.
walked out to the door, and he said , "You were late
showing to work."
I said , "Yes, I been trying to sell that demo of
Wally's," which is a Ford station wagon demonstrator.
And he said , " Well, you know , you were supposed to
be here for the sales meeting."
I said , "Yes, but in my opinion selling is what I was
hired for, and this is the most important thing . This is
where I get my money."
He said , "By the way , Howard had to go out to Mr.
So and So's house last night and close the deal on that
truck."
I said , "Good for Howard."
He said, "How come you didn't[?]"
I said, "I waited around and waited around," and I
said , " I had the man in here twice and you blew him
out."
The conversation went on further , and he asked me
another question, and I asked him, "What the hell, why
in the hell should I turn him over to you when you are
blowing him out twice?" I said , "What goddamned
good does that do?" I did say this.
. . . [Blow him out] means that you have had the
opportunity to sell him, but you have let him get away.
This means, in our lingo, "Blowing him out," means
"you couldn't sell him."
He went back to the sales meeting. I told him he
didn't have any, didn't have any sales meeting, that I
hadn't got a damn thing out of them, the ones I had
attended - which I didn't And if you would ask
everybody on the force, they would give you the very
same answer.
INLAND MOTORS 857
[This conversation] was behind the sales office that is
across the street from the main office.
* * * * *
I don't know if there was anybody else there or not.
* * * * *
Q. Have you related all this conversation that took
place between you and Chuck Hall?
A. I believe so. I don't recall it word for word, but
when he said I did use foul language, I did use foul
language, just as all the other salesmen talked to one
another.
Q. What foul language did you use?
A. Well, Goddammit, Chuck, why should I do this?"
And, "Goddammit, Chuck, why should I do that?"
And, "What the hell, I am not getting anything out of
it."
Hall's testimony was substantially the same as that of
Michael. One of the bystanders, Makowsky, who left
while the altercation was continuing , testified that when
Hall asked Michael why he did not turn the deal over so
Hall could help him, Michael, who was mad and red and
belligerant, replied: "I wouldn't turn any goddamned deal
to you. Or to anybody."
Hall asked Michael to remain on the premises. He
reported the incident to Baldwin and, on being assured
that he was not required to take that type of abuse, had a
final check prepared and gave it to Michael, stating that
Michael was being let go because he had not made enough
sales.
E. The Incidentat Hudlow's Bar
Shortly after 3 p.m. on May 7, Makowski and Coonce
drove about five blocks to Hudlow's Cocktail Lounge, sat
at the bar and ordered drinks. Coonce testified that Mr.
Baldwin came in and took the seat at his left. Makowski
was sitting on Coonce's right. Coonce further testified:
Q. [By Mr. Montes] Then what happened?
A. Well, Mr. Baldwin sat down and said he would
have a drink and he said, "In about two hours Mr.
Michael is going to be history." So I wondered why,
and Mr. Makowski, and he said why, and he said, Jack
Feely had called and said Mr. Michael was down there
trying to organize his salesmen , or talking union to his
salesmen , and Mr. Baldwin said Gene's record hadn't
been too good on his sales and therefore they thought
they would let him go.
Q. And what did you say?
A. Well, I didn't say anything.
Q. And did Mr. Baldwin say anything further?
A. No. The conversation just drifted on to other
things then.
Mr. Baldwin left first, and very shortly after, Mr.
Makowski and I left.
Coonce was not cross-examined on any portion of his
testimony.
Makowski testified:
Mr. Baldwin joined us, and I guess we bought him a
drink, .. .
Q. And what did Mr. Baldwin say on that
occasion?
* * * * *
A. To be honest with you, I was talking to another
man at the time that I heard something about Mr.
Michael being history. But I was talking to another
man about a car, trying to sell him a car, and the man
was kind of lit, so I didn't pay too much attention to it,
but it didn't surprise me any. Let's put it that way.
Q. You heard Mr. Bill Baldwin say that Gene
Michael would be history?
A. No, I heard him say he was history.
Q. He was history. And heard him say nothing
further?
A. I wasn't paying too much attention. I was talking
to another gentleman on the right side of me.
The only testimony of Mr. Baldwin relative to the
incident in the bar is the following:
Q . [By Mr. Fredricks] Did you hear the testimony
of Mr. Coonce this morning to the effect that you said
that Michael is history?
A. Yes, sir.
Q. Did you make that statement?
A. I believe I did.
Q. Did you hear the testimony of Mr. Coonce this
morning to the effect that you had received a telephone
call from Mr. Jack Feely that Michael was soliciting
Mr. Feely's men? Did you hear that statement made
this morning?
A. I heard the statement made.
Q. Did you make such a statement at that time?
A. No, sir.
Q. Have you ever heard of any telephone call from
Mr. Feely to you or to Mr. Guggisberg or to anybody
at Inland Motors with respect to Mr. Michael's alleged
solicitation at Feely's?
A. No, sir.
Q. Have you ever met Mr. Jack Feely?
A. Not until a few minutes ago.
Q. Have you ever talked to him on the telephone?
A. No.
F. Respondent 's Defense
Mr. Guggisberg testified that he reviews salesmen's
records at the end of each month. Toward the end of
March, he discussed Michael's performance with Baldwin
and decided to keep him another month or two to see if
they could develop him into a salesman . At the end of
April, Guggisberg discussed Michael's performance with
Hall and Baldwin and decided that Michael should be
discharged. The reasons were poor performance and poor
attitude. Michael had told Hall that he knew more about
selling cars than Hall did and had told Guggisberg that he
would not accept a deal unless he received somewhere
around a $100 commission for himself. There was no
particular reason for waiting until May 7. Guggisberg
further testified that he knew Jack Feely well and had not
received any communication from Feely relative to
unionization or relative to Michael's soliciting on behalf
of the Union.
Mr. Hall testified that on the morning of May 7 he had
a discussion with Guggisberg and Baldwin concerning the
performance of Michael and Juarez (and possibly others)
and it was decided that if their performance did not come
up, something should be done about it. Hall had been
hired to help the performance of the salesmen and he let
Michael go because Michael would not follow what Hall
wanted him to do. Following his altercation with Michael,
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hall told Baldwin that he could not have a man like
Michael working for him and retain the respect of the
men working there , and carry on his program to increase
the business . Baldwin left the decision up to Hall, and
Hall decided to let Michael go.
Mr. Baldwin testified that he had discussed with
Guggisberg and Hall the poor performance of Michael on
the morning of May 7. In the afternoon , Hall told
Baldwin that Michael was belligerant when asked why he
was late, and about a deal that should have been turned
over to Hall. Hall told Baldwin that if Michael was not
going to respect his wishes and his capacity , Hall could
see no reason for continuing with him . Baldwin replied
that Hall should make his own decision.
Jack Feely testified that he is president, principal
stockholder and general manager of the Volkswagon
Agency in Redlands . Feely denied that he had ever at any
time had a telephone conversation with Guggisberg
wherein he advised him that one of his salesmen might
have been soliciting on behalf of the Union at Jack Feely
Motors . Feely stated that he did not know Mr . Michael;
that he had never seen him in his agency; had no
knowledge of Michael conducting any union activity at his
agency ; and had no knowledge of any person conducting
any unionization at his agency . Feely denied that he knew
Mr. Baldwin , stated that they had not met until
introduced in the hearing room, and stated that he had
never spoken to Baldwin on the telephone.
G. Arguments of Counsel
The General Counsel argues that the testimony of
Coonce demonstrates that Respondent had knowledge of
Michael' s union activities and that Michael's discharge
was motivated by Respondent's determination to
discourage such activities . He points out that Baldwin's
record indicates that the production of Ogden and Juarez
was lower than that of Michael and argues from this fact
that Michael's low production could not have been a
factor in his discharge.
Respondent 's counsel argues that there is no evidence
of animus on this record and no credible evidence that any
supervisor had any knowledge of Michael 's union activity.
He does not argue that Michael was the lowest salesman
in production. He does state that Michael ' s undeniably
low production was a factor in the discharge which was
precipitated by Michael's attitude and conduct on May 7,
1968.
H. Concluding Findings
As noted above, the General Counsel' s case depends
entirely upon my crediting Coonce in full and upon
inferences to be drawn from the testimony of Coonce.
I do credit Coonce in full and do find that Baldwin did
make the statement attributed to him by Coonce. Coonce
was an impressive witness. He was not cross -examined by
Respondent's counsel , and there is nothing in this record
to indicate that his memory is unreliable, or that he feels
any animus toward Respondent , or has particular loyalty
to the ' Union. I attach no importance to the fact that
Makowsky does not corroborate Coonce in every
particular . Makowsky is a salesman and was
concentrating on selling an automobile to the man on his
right. He had no interest in Michael and did not hear the
explanation which Baldwin offered to Coonce.
Baldwin 's denials are unconvincing for two reasons
which are apparent on this record. The first is the form of
his denial. He was asked, by Mr. Fredricks:
Q. Did you hear the testimony of Mr. Coonce this
morning to the effect that you said that Michael is
history?
A. Yes, sir.
Q. Did you make that statement?
A. I believe I did.
Q. Did you hear the testimony of Mr. Coonce this
morning to the effect that you had received a telephone
call from Mr. Jack Feely that Michael was soliciting
Mr. Feely's men? Did you hear that statement made
this morning?
A. I heard the statement made.
Q. Did you make such a statement at that time?
A. No, sir.
Baldwin was not asked, and did not volunteer, what he did
say to Mr. Coonce.
When the foregoing is compared with Baldwin's
testimony about his answer to Michael, when Michael
asked if Baldwin had heard of the Union 's campaign, it
becomes apparent that Baldwin is deliberately holding
back something . I can only infer that Baldwin's
recollection of what he did say is very close to Coonce's
recollection of what he heard. When Mr. Fredricks,
interrogating Baldwin about the earlier incident, put a
question which called for a yes or no answer , Baldwin
volunteered: "He didn't tell me that he was affiliated or
joining or doing anything with the union at all. He asked
my opinion of it and I gave my opinion of it." Mr.
Fredricks then asked the question, which he deliberately
refrained from asking about the conversation in Hudlow's
bar: "What did you tell him" and Baldwin recited his
answer in detail.
A second reason for viewing Baldwin ' s denial with
suspicion is his testimony on cross-examination when
confronted with the fact that his own record shows that
Rudy Juarez and Howard Ogden sold fewer cars than
Michael in April, and sold no cars in March. Baldwin
keeps a daily record of sales and makes a recap at the end
of each month . His recap for March shows the names of
Juarez and Ogden for the first time and shows that neither
made any sale . His recap for April shows that Michael
sold three cars, Ogden sold two, and Juarez sold one.
Baldwin variously testified that he put their names on the
March sheet before they were hired , that he could not
remember when they were hired or when they went to
work, that they were both hired toward the end of April,
that Juarez was working for another agency which was
going broke and he did not want the fact to be known,
that he had been hired by Inland Motors , and that Ogden
was not hired by Baldwin but by Hall. When Baldwin was
excused from the stand to go to Respondent's office (two
blocks away) to ascertain from Respondent's records when
these salesmen actually went to work, he returned without
the information, but with the further explanation that
Respondent 's bookkeeper had suffered a stroke during
March or April, which could account for Baldwin 's failure
to find a reliable record.
I credit Jack Feely in full . He was an honest and
forthright witness, and frankly acknowledged that the
Union' s organizing campaign had been discussed at
dealers meetings which he attended . It was obvious that he
did not know either Baldwin or Michael, and there is no
reason to discredit his denial that he made a telephone
call to Respondent.
Though I have found that Baldwin made the statement
attributed to him by Coonce, it does not follow, as urged
by the General Counsel, that this constitutes an admission
INLAND MOTORS 859
that Michael was discharged because he was organizing
for the Union at Jack Feely Volkswagon. I have found
that Jack Feely did not know of Michael's visit and did
not telephone anyone at Respondent's agency concerning
any such visit. This portion of Baldwin's statement to
Coonce was a pure fabrication.
I conclude and find that Michael was discharged by
Service Manager Hall because of his low production and
because Michael was insolent and insubordinate and for
no other reason. I further find that Guggisberg had
nothing to do with the discharge and that Baldwin's role
was entirely passive.
I conclude and find that Baldwin, having been told by
Hall that he was discharging Michael, and having learned
in some way, which does not appear on this record, that
Michael had paid a visit to Jack Feely's agency, and
desiring to stimulate Coonce's sales efforts, invented and
delivered this little parable. Because there may have been
some minor inaccuracy in Coonce' s recitation, and
because of the careful choice and phrasing of
Respondent's question, and because the General Counsel
did not elect to cross- examine on this point, it was
possible for Baldwin to answer "no" without violating his
oath. Similarly, Baldwin did not lie about the dates of hire
or the sales records of Ogden and Juarez. His memory
was vague, and he was unable to locate any reliable
records. It may well be that neither went to work for
Respondent until late April. It may be that their sales
records were in fact better than Michael's, but that would
not change my conclusion that Michael's poor
performance was a factor in his discharge. For the
foregoing reasons, it will be recommended that the 8(a)(3)
allegation of the complaint be dismissed.
This leaves the allegation of the complaint that
Baldwin, by his statement to Coonce in Hudlow's Bar,
restrained and coerced employees in the exercise of
Section 7 rights. That such a statement, even though false
and without foundation, does violate Section 8(a)(1) of the
Act is well settled (Serv-Air Aviation, Stallings Air Base,
I I I NLRB 689, 696; Bonded Armored Carrier, Inc., 147
NLRB 100, 101), and I so find. This was a deliberate
threat addressed to two employees of eight in a
presumptively appropriate unit for bargaining and cannot
be excused as "isolated."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activity of Respondent, as set forth above,
occurring in connection with the operations of Respondent
described above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in an
unfair labor practice. It will therefore be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Baldwin 's statement to Coonce
tended to create the impression among employees that
union activity was the cause of the discharge of Michael,
and thus restrained and coerced employees in violation of
Section 8(a)(1) of the Act, I shall recommend that
Respondent be ordered to notify employees that it will not
engage in this or like or related conduct in the future.
Since Baldwin's statement contained a threat of discharge,.
I shall also recommend appropriate language to rectify the
effect of such threat.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in a
business affecting commerce, within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By a statement to employees tending to create the
impression that an employee had been discharged because
of his union activity, and by implication threatening to
discharge any employee engaging in union activity,
Respondent engaged in an unfair labor practice within the
meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor
practice within the meaning of Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]