Sawyer Downtown Motors, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1953

103 N.L.R.B. 1735 (N.L.R.B. 1953)

SAWYER DOWNTOWN MOTORS, INC. 1735
and supervisors , constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists, District Lodge 114, Local Lodge
1066, AFL, was on November 6, 1951, and at all times thereafter has been the
exclusive representative of all the employees in the above-mentioned appropriate
unit for the purposes of collective bargaining within the meaning of Section
A (a) of the Act.
4. The Respondent did not refuse to barg,i'u in good faith with the aforesaid
Union on November 28, 1951, or at any time thereafter, and has therefore not
engaged in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
5. The Respondent did not discriminatorily discharge Randall Johnson on
October 15, 1951, Floyd McPherson on November 23, 1951, or Mark Sumsion on
January 31, 1952, and therefore has not engaged in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
6. The Respondent did not threaten to lay off or discharges employees if they
engaged in a strike or other concerted activities, or threaten to discontinue busi-
ness operations if the employees joined the Union, or vilified, discouraged, and
expressed disapproval of the Union and its representatives, and therefore has
not committed a violation of Section 8 (a) (1) of the Act by virtue of such
conduct.
7. The Respondent has engaged in unfair labor practices by interfering with,
restraining , and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act by
the following conduct :
(1) Questioning employees about their union activities, affiliations, and
interests.
(2) Attempting to dissuade employees from joining or assisting the Union.
(3) Threatening to lay off or discharge employees if they joined or assisted
the Union.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
SAWYER DOWNTOWN MOTORS, INC. and RICHARD STAHL AND WILLIAM
SPROTTE. Case No. 13-CA-1022. April 10, 1953
Decision and Order
On December 30, 1952, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that,
the Respondent, Sawyer Downtown Motors, Inc., 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 copy of the Intermediate Report attached hereto
Thereafter, the Respondent filed exceptions to the Intermediate Re.
port and a supporting brief.
103 NLRB No. 120.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case , and hereby
adopts the findings,2 conclusions, and recommendations of the Trial
Examiner , with the exceptions, modifications, and additions noted
below .3
1. The Respondent excepts to the complaint as being "jurisdiction-
ally defective," contending that it contains various allegations not
present in the charge and fails to contain allegations present in the
charge. Section 10 (b) of the Act does not require absolute conformity
between the charge and the complaint with reference to the unfair
labor practices alleged therein. It is sufficient that, as here , unfair
labor practice findings are based on conduct alleged in the complaint,
as amended, which occurred within the 6-month period preceding
the filing and serving of the charges.'
2. We agree with the Trial Examiner that the Respondent interfered
with, restrained, and coerced its employees in violation of Section 8.
(a) (1) of the Act by the various instances of interrogation and
threats, fully described in the Intermediate Report .5
3. We likewise find, as did the Trial Examiner, that the Respond-
ent discriminatorily discharged employees Sprotte and Stahl in vio-
lation of Section 8 (a) (3) of the Act.
Sprotte, who himself had apparently initiated the drive to organize
the Respondent's employees,° was discharged on January 25, 1952,
i Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated Its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Murdock and Peterson].
2
The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner ' s ultimate conclusions or our concurrence
therein. Accordingly , we note the following corrections : ( 1) While the record shows
that Anderson , a former employee of the Respondent , desires to return to the automobile
business , it does not establish that Anderson wants to return to the Respondent 's business,
as the Trial Examiner seems to find ; (2) the record fails to confirm the Trial Examiner's
finding that the attorney appearing for the charging parties was also the attorney for the
Amalgamated Clothing Workers, CIO ; ( 3) It appears from the record that discharges
Stahl contradicted himself in testifying as to his attendance at the Respondent's daily
sales meetings , besides being "hesitant" in offering such testimony , as found by the Trial
Examiner ; ( 4) contrary to the Trial Examiner , there is some evidence in the record that
Anderson and employee Lauer were union members.
8 The Respondent excepts to the fact that the charging parties were represented by
different counsel at the time the charge was filed and at the time the hearing was held
without a formal substitution of attorneys . We find no merit in this exception. There
is no provision in the Board 's Rules and Regulations or in the Administrative Procedure
Act making it incumbent upon parties appearing before the Board to file a formal substi-
tution of attorneys
4 Pacific American Shipowners Association et al., 98 NLRB 582.
Fuchs Baking Co., 102 NLRB 1350.
The record shows that the Amalgamated Clothing Workers, CIO , was the parent or
sponsor of the Automobile Salesmen's Union, Local 174, CIO, which was, during December
1951 and January 1952, in the process of organization. Whether the process was con-
tinued to formal organization does not appear.
SAWYER DOWNTOWN MOTORS, INC. 1737
less than 1 week after he was elected temporary vice president of the
Union. Sprotte was summarily discharged by the sales manager,
Kasper, without explanation. That Respondent knew of Sprotte's
union activity is clearly established by the testimony of employee
Anderson that, before January 25, he told the used-car manager, Van
Vleet, that Sprotte had been elected vice president of the Union. Van
Vleet's knowledge is imputable to the Respondent. Moreover, Ander-
son also testified that, on January 25, prior to Sprotte's discharge, in
a conversation with Kasper the latter said that Sprotte was vice
president of the Union.
Stahl also was an active adherent of the Union, had attended its
meetings, and had solicited members among the employees. Stahl was
discharged summarily on January 28, Kasper telling him that the
cause therefor was a deficiency in his sales record. The Respondent's
knowledge of Stahl's union activity was secured through the unlawful
interrogation of Stahl on January 25 by Kasper, whose knowledge is
imputable to the Respondent. Furthermore, in view of the foregoing,
the Respondent's knowledge of the union activities of both dischargees
is reasonably inferable from the small size of the Respondent's
enterprise.'
The remaining element necessary to a finding of discrimination by
the Respondent, namely the hostility of the Respondent to union or-
ganization, was displayed by the coercive conduct which violated Sec-
tion 8 (a) (1) of the Act as detailed in the Intermediate Report.
To meet the strong prima facie case of unlawful discrimination 8
established by the timing of the discharges in the context of a strong
union animus on the Respondent's part, coupled with the Respondent's
knowledge of the dischargees' union activities, the Respondent sought
to establish that its discharge of Sprotte and Stahl was prompted by
nondiscriminatory considerations.9
The Respondent, a Buick automobile dealer, contends that the sole
reason for the discharges was the "protected plan" to cut the new-car
quotas of Buick dealers by 25 percent for the year 1952. We have
carefully examined the record for evidence in support of this defense,
and we find, as did the Trial Examiner, that this contention was an
afterthought designed to disguise the Respondent's true motives.
IS. S. Coachman and Sons, Inc., 99 NLRB 670; Stokely Foods, Inc., 91 NLRB 1267.
There were approximately nine sales employees (new- and used- car salesmen) on the
Respondent 's premises.
s That the Respondent did not discharge or otherwise retaliate against all of the known
union members is not controlling . The Board has frequently held that an employer need
not engage in a complete house-cleaning before it can be established that certain employees
were discriminated against. California Willys, 98 NLRB 325.
e Where the Board has made out a strong prima facie case of discrimination, it is
incumbent upon the respondent to show convincingly that the discharge was for a non.
discriminatory reason . Stafford Operating Company , 96 NLRB 1217.
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sawyer, the Respondent's president, testified that, while attending a
meeting of Buick representatives in New York City in the latter part of
January 1952, he learned of "projected plans" to cut new- car quotas.
Upon the Respondent lay the burden of establishing that the "pro-
jected plans" were a reality, and not a subterfuge to protect itself
from possible unfair labor practice charges. However, no correspond-
ence or announcement of this material reduction in its car quotas,.
from either the Buick Corporation or the New York City meeting of
Buick representatives, was introduced in evidence 10 Even Sawyer's
letter to Kasper, which allegedly provoked the discharges, was not
introduced in evidence. In rejecting the Respondent's defense, the
Trial Examiner found, and we agree, that no showing was made that
the "projected plans" created an emergency. Moreover, the Respond-
ent's justification is wholly unrelated to any reason given to Sprotte
and Stahl at the time of their respective discharges-" Accordingly,
under the circumstances recited above, we reject the defense of eco-
nomic necessity raised by the Respondent.12
We are satisfied that, in view of Respondent's knowledge of the
union activities of Sprotte and Stahl, the timing of their discharges,,
the Respondent's shift in grounds for Stahl's discharge and failure to
accord Sprotte any reason for his discharge, and the unconvincing
nature of the Respondent's reason for the discharges, the real motiva-
tion for their discharges was the Respondent's desire to rid itself of
the Union's protagonists and to subdue the organizational attempts of
its employees at their outset., thereby discouraging membership in a
labor organization. In so acting, the Respondent violated not only
Section 8 (a) (3) of the Act 13 but also independently violated Section
8 (a) (1) of the Act by interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed by Section 7 of
the Act. We further find that reinstatement and back pay is appro-
priate and necessary to remedy the unfair labor practices involved
herein, without regard to whether the discriminatory discharges be-
deemed a violation of Section 8 (a) (1) or of Section 8 (a) (3) of the
Act.
to See McCarthy-Bernhardt Buick, Inc., 103 NLRB No 105. Although Sawyer testified
that during the fist 10 months of 1951 the Respondent received 417 new cars as opposed
to 281 received for the corresponding period in 1952 . such testimony fails to establish that
Sawyer , at the time of the discharges , was acting to forestall financial injury to the
Respondent
At the time of their respective discharges , Sprotte was given no explanation, and
Stahl was told his discharge resulted from a poor sales record
" See McCarthy -Bernhardt Buick , Inc., supra, Cashman Auto Company , 98 NLRR 832.
"See Stokely Foods, Inc , supra. We find that these discharges "have the proximate
and predictable effect of discouraging membership in a labor organization " N L. R. B.
v. J. I. Case Co , 198 F 2d 919 (C. A. 8) See Ace Handle Corporation, 100 NLRB 1279;
Rome Specialty Co , 84 NLRB 55.
SAWYER DOWNTOWN MOTORS, INC. 1739
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Sawyer Downtown Motors,
Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discharging any of its employees or discriminating in
any other manner in respect to their hire and tenure of employment,
or any term or condition of employment.
(b) Threatening and interrogating employees concerning concerted
activities.
(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to William Sprotte and Richard Stahl immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges , in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy."
(b) Make said employees whole for any loss of pay they may
have suffered by reason of the interference, restraint, coercion, and
discrimination against them, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) 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 or convenient for the analysis of the amount of
back pay due under this Order.
(d) Post at its place of business in Milwaukee, Wisconsin, copies
of the notice attached hereto and marked "Appendix A." 14 Copies
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall he substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Aaueals. Enforcins an Order."-
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately after
receipt thereof, and be maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps have been taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 any labor organization
of our employees by discharging any of our employees or dis-
criminating in any other manner in respect to their hire or tenure
of employment, or any term or condition of employment.
WE WILL NOT threaten or interrogate our employees concerning
concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist labor organi-
zations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William Sprotte and Richard Stahl imme-
diate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
suffered as a result of the interference, restraint, coercion, and
discrimination against them.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing in any labor or-
SAWYER DOWNTOWN MOTORS, INC. 1741
ganization except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
SAWYER DOWNTOWN MOTORS, INC.,
Employer.
Dated -------------- By --------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
The complaint herein, as amended, alleges that the Respondent has violated
Section 8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136,
by discriminatorily discharging William Sprotte and Richard Stahl on January
25 and 28, 1952, respectively, and failing and refusing to reemploy them, because
they engaged in concerted activities and joined and assisted Amalgamated
Clothing Workers of America, CIO; and Section 8 (a) (1) of the Act by said
alleged acts and by threatening an employee with loss of his job because of his
union activities, interrogating employees concerning such activities, and solicit-
ing an employee's signature to a statement disaffiliating himself from the
Amalgamated. The answer denies the Board's jurisdiction and the allegations of
unfair labor practice, alleging that any information given by employees was given
voluntarily and that the discharges were for reasons other than those alleged
in the complaint.
A hearing was held before me at Milwaukee, Wisconsin, on November 10, 11,
15, and 17, 1952. Pursuant to leave granted to all parties, a brief was thereafter
filed by the Respondent.
Upon the entire record of the case and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE RESPONDENT ' S BUSINESS
It was admitted and stipulated and I find that the Respondent, a Wisconsin
corporation with offices and salesroom in Milwaukee , sells Buick automobiles
under a franchise from the Buick Motor Division, General Motors Corporation ;
that during the year 1951 it purchased Buick automobiles valued at approxi-
mately $1,000,000, all of which were shipped f. o. b. Milwaukee to its place of
business from Flint, Michigan. It was further declared by the Respondent that
its Buick franchise aforementioned covers, among other items, such matters as
location of the Respondent's place of business, maintenance of a service depart-
ment mutually acceptable to the Respondent and Buick , stocking of sufficient
parts, handling of Buick products exclusively, and use of Buick signs. The
franchise "associates the Respondent with a Nation-wide producer and distribu-
tor of automobiles."' I find that the Respondent is engaged in commerce within
the meaning of the Act, and that the Board has jurisdiction of the matters
alleged in the complaint.
'Harbor Chevrolet Company, 93 NLRB 1326. Cf. Baxter Bros, 91 NLRB 1480. See
also General Motors Corporation, Buick Motor Division, 69 NLRB 191.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8 (a) (1)
Anderson , who on April 1, 1952, quit his employment as used-car salesman
with the Respondent , but declared that he wants to return to the business , testi-
fied that after the sales meeting one morning in the latter part of December 1951
or early in January 1952, Kasper , the Respondent 's sales manager , told him after
he had confirmed Kasper 's "understanding" that he had been approached by a
union organizer on the lot, . . . don 't affiliate yourself with that kind of monkey
business in any manner , because Mr. Sawyer just won't stand for it, and as
much as I like you , I'll have to give you the axe." This testimony proves, and I
find, a threat in violation of the Act.
Anderson testified further that after that conversation and almost daily at
least until and beyond January 25 , 1952, Kasper asked whether anyone from the
Amalgamated was "bothering " him, whether he was attending union meetings,
and who was present at such meetings ; and that he answered the first two types
of question truthfully , but did not disclose to Kasper any individual 's attendance
until after Sprotte and Stahl had been discharged , when he indicated that they
had attended . About noon on January 25, according to Anderson , Kasper asked
him whether he had joined the Amalgamated . ( As herein noted , numerous
statements and inquiries were directed toward Anderson although he does not
appear to have taken an active part in the activities concerned.)
Kasper did not deny the statements so attributed to him . I find that such
interrogation , especially in the light of the earlier threat, constitutes interference
within the meaning of the Act.
Stahl testified that on January 25, after Sprotte had been discharged , Kasper
asked him , "You don 't have anything to do with this union do you ?" and when
Stahl replied that he was a member , Kasper continued , "Don't you want to work
here any more? . . . Why did you get yourself tied up with the union?"
This stands without direct denial : Kasper testified only that he had no time
to find Stahl that day despite the alleged urgent airmail special delivery letter
referred to infra. As will be noted , I do not credit the Respondent 's testimony
concerning the urgent letter and the explanation that it prompted the discharges.
These questions by Kasper constitute unlawful interrogation and threat.
Anderson further testified that a day or two after Sprotte was discharged,
Sawyer, the Respondent 's president , asked him whether he was "in that union"
and, urging him to vote with the Respondent , promised to see whether he could
"rectify" matters if Anderson thought he was "being cheated."
Pointing out that he left Milwaukee on January 23 and did not return until
February 2, Sawyer denied that he had ever made such a statement. In his
recollection , Anderson displayed a marked difference in certainty between occur-
rences in detail and the exact date of such occurrences . ( He testified variously
that Sprotte was discharged on January 24 and January 25.) I find that shortly
after the beginning of February Sawyer did interrogate Anderson in the manner
noted ; no promise of benefit having been alleged, I find only that the interroga-
tion, connected as it was with a promise of benefit, constitutes interference within
the meaning of the Act.
Later that same day according to Anderson , Kasper called him into his office
and stated that "as long as [Anderson was] not interested in the union, not
intending to take any active interest in it, [he ] would have no objection to
SAWYER DOWNTOWN MOTORS , INC. 1743
signing [a] paper" which requested removal of his name from the union rolls and
which Kasper thereupon handed to him.°
General Counsel and the Amalgamated, whose presence was noted at the hear-
ing and whose attorney appeared for the charging parties, failed to explain the
absence of the original paper, which the Amalgamated allegedly received.
Kasper and Sawyer denied Anderson's testimony that the paper was submitted
to him by Kasper. They testified, on the contrary, that Anderson spoke of
resigning, and that Kasper checked with Sawyer before permitting Anderson to
prepare and submit a resignation. General Counsel has not sustained the burden
'of proving that such a letter was prepared by the Respondent and submitted to
Anderson for signature.
B. The alleged violation of Section 8 (a) (3)
Sprotte was employed by the Respondent as a used-car salesman from Novem-
ber 16, 1950, until October 1, 1951, when at his request he was transferred to
the new-car department He attended three organizational meetings : the first,
early in December 1951; the second, about a week later ; and the third, on
January 21, 1952. The meetings were sponsored by the Amalgamated and con-
ducted by its representative, who distributed membership cards for further
distribution among individual employees.
Sprotte was the only employee of the Respondent to attend the first of these
meetings ; others present were employees of at least one other dealer . He then
discussed unionization with Stahl, who accompanied him to the second meeting.
(Of the Respondent's employees, only Sprotte and Stahl attended this meeting.)
Thereafter and practically every day, Sprotte discussed the matter with every
new- and used-car salesman employed by the Respondent ; beginning about
January 15, he solicited memberships and got several salesmen to sign cards.
Just when he himself signed a card does not appear : he testified that he had not
joined at the time of the second meeting. Five of the Respondent's employees
were among those who attended the third meeting. Total attendance increased
from 10 to 15 at the first meeting to approximately 100 at the third. Automobile
Salesmen's Union, Local 174, CIO, was informally' organized and temporary
officers elected at the meeting of January 21, Sprotte being elected temporary
vice president. While there is neither allegation nor proof that the Salesmen's
Union so-called is a labor organization, General Counsel's position being that the
Amalgamated was the parent and sponsor, it is clear that in attending these
meetings, distributing cards, soliciting membership, and discussing joint activi-
ties, whether in connection with the Amalgamated, the Salesmen's Union, neither
,or both, the employees involved were engaged in concerted activities within the
meaning of the Act ; and discrimination in regard to hire or tenure because of
such activities tends to discourage membership in a labor organization.`
2 The witness testified that Kasper put the signed original into a stamped addressed
envelope and that the Amalgamated later informed him that it had received it ; and that
Kasper retained a copy. At the hearing, General Counsel and counsel for the Respondent
declared that neither the original nor the alleged copy was then available.
J The Salesmen's Union was at that time in process of organization . Whether the
process was continued to formal organization does not appear . It is not a charging party,
there is no issue or evidence of "fronting," and counsel for the Respondent made it clear
that the answer 's allegation of failure to comply refers to absence of affidavits by the
charging parties.
If, in the absence of a finding that a labor organization existed, there be doubt con-
cerning discouragement of membership in a labor organization (see N. L. R. B v. J. I.
Case Company , Bettendorf Works, 198 F 2d 919 (C. A. 8) ), interference with concerted
activities and the effect on hire and tenure are clear; an order for reinstatement and back
pay is warranted whether the violation be of Section 8 ( a) (1) or (3) of the Act. (Rome
Specialty Co., Inc., 84 NLRB 55.)
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about 4: 30 in the afternoon of January 25, Kasper called Sprotte into his
office and discharged him. According to the latter, Kasper , with tears in his eyes,
said , "Bill , I'm afraid I will have to let you go. . . . I can 't explain , I get my
orders' you know and I have to obey them." Sprotte asked whether he should
complete the day since he was supposed to work until 6 o'clock, but Kasper
replied, "No, no, no, you are through right now." Kasper did not contradict this
testimony. His insistence on such immediacy is not accounted for by Sawyer's
explanation, infra, and is in marked contrast with Kasper 's reason , infra, for his
delay in moving against Stahl.
Sprotte further testified that approximately a week later he was called to the
home of Van Vleet, the used-car manager, himself a supervisor although subor-
dinate to Kasper, and that Van Vleet told him that after Sprotte had given a
membership card to Wagner, another salesman, the latter asked Kasper whether
he should sign it and turned it over to him. If this latter testimony was ad-
duced to show that the Respondent had knowledge of Sprotte's activities prior to
his discharge, it fails of its purpose since it does not appear when these alleged
Wagner-Kasper dealings occurred.
More effective in this connection is Anderson's uncontradicted testimony that
before January 25 he told Van Vleet that Sprotte had been elected vice president.
Van Vleet's knowledge is imputable to the Respondent. His apparent sympathy
with employees efforts to organize does not negative such imputation, nor does
it destroy the effect of his admission, infra, of Sprotte's ability or his reference
to the latter's sales when he exhorted the other men to greater effort.
Anderson also testified that during the conversation, supra, which he had with
Kasper on January 25, prior to Sprotte's discharge, Kasper said, ". . . that man &
out there is the vice president." Nor should we overlook the fact that knowledge
of organizational activities may be presumed when such activities are in fact
engaged in, and to the extent described, in a small place of business .' That the
Respondent was aware of concerted activities generally at its place of business
appears from the evidence relating to interference, supra.
On the issue whether he was a satisfactory employee, Sprotte testified that
Kasper had spoken to him about the possibility of becoming assistant to the
sales manager, and that he had never been threatened or warned about possible
discharge. Anderson testified that on the evening of and shortly after Sprotte's
discharge, Van Vleet spoke highly of his sales record and on several occasions
thereafter compared Sprotte with other salesmen "to pep the men up." Van
Vleet's appraisal of Sprotte's ability and Kasper 's reference to promotion, neither
of them denied, leave little room for a finding that Sprotte's work was unsatis-
factory.
Stahl started his employment with the Respondent in November 1950. He
testified that he first attended a union 8 meeting at Sprotte's solicitation, and
1 or 2 other meetings before he was discharged on January 28, 1952. While he
declared that he started early in January to talk to the other salesmen about the
Union and their joining it, and at the same time asked them to sign union cards,
6 Whatever it may suggest, this reference to "orders," repeated to Stahl, infra, is not
per se the basis for a finding of discrimination The discrimination lies, as will be noted,
in the discriminatory reason for the issuance of such orders.
6 Anderson apparently indicated Sprotte, to whom he had made reference immediately
before in his testimony
7 See Standard Servtee Bureau, 87 NLRB 1405, and cases cited therein
8I do not rely on such characterization here or elsewhere As noted, Supra, concerted
activities are clear, whether in connection with an organization in being or one
contemplated.
SAWYER DOWNTOWN MOTORS, INC. 1745
he did not himself sign a card until January 21 or the week before. It may be
doubted that his solicitation of others antedated his own card-signing; but he
did engage in such activities for a week or two before he was discharged.
Stahl was not elected to office and his activity appears not to have been as
extensive as Sprotte's although he testified that he talked about the Union to
others sometimes when he was on duty and sometimes also when they were on
duty either in the showroom or on the used-car lot. The extent of his success
is not clear : he testified that he got others t ) sign cards, but could name only
two and was not certain whether he or Sprotte got them to sign.
As noted supra, Kasper on January 25 unlawfully interrogated' and threatened
Stahl in connection with concerted activities If the Respondent did not earlier
know of such activities on his part, he at that time declared his membership.
On the following day, which was Saturday, Stahl again asked Wagner, who
had previously been solicited by both Sprotte and Stahl, but who never did join,
to attend a union meeting. On Monday morning, January 28, Kasper, Wagner,
and Charles Geisenfeld, the Respondent's attorney, engaged in conversation in
Kasper 's office within view of Stahl and several other salesmen who had gath-
ered for the daily sales meeting The sales meeting was then held, and at its
conclusion Kasper told Stahl that he wanted to see him. Kasper then, however,
spoke to the other salesmen seriatim, and to Van Vleet. Then, Stahl further
testified, Kasper called him in and told him that he would have to let him go,
as he had been warned before, because his sales weren't what they should be.
When Stahl charged him with acting "because of the union," Kasper allegedly
did not deny it. Stahl testified that he persisted, and that Kasper replied, "You
know there's nothing I can do about it. I have my order[s] I have to fill them
or I won't have a job."-And Stahl was discharged.
Wagner's participation in the meeting with Kasper and Geisenfeld was not
explained by the Respondent even though Stahl pointed to it in connection with
his discharge. Since that meeting followed so soon, in working time, after
Stahl had again invited Wagner to a union meeting and almost immediately
preceded Kasper's dismissal of Stahl, it may be inferred that Stahl's concerted
activities were discussed and the decision then made to discharge him. Instead
of relying on such an inference, however, consideration can be given to the evi-
dence adduced on the issue of Stahl's discharge.
The Respondent claimed that Stahl had left the used-car lot unattended when
he was supposed to be on duty on the afternoon of December 24, 1951. Ad-
mitting that he had left the lot to do personal shopping, Stahl was not at first
certain that Anderson was on duty although he testified that someone else was
there. Anderson had been on duty that morning. Whether we accept Sawyer's
testimony that because of the holiday Anderson and Stahl divided the day, the
former alone in the morning and the latter to be alone in the afternoon, or
Stahl's and Van Vleet's that 2 men were to be on duty at all times, the 2 on that
day being Stahl and Anderson, it is clear that Stahl left the lot without permis-
sion and could have been discharged therefor. Sawyer testified that on De-
cember 26 he told Stahl that if he again left the lot unattended, he would be
fired. It also appears from the testimony that Stahl missed sales meetings and
was late at others.
9 That Kasper asked the question does not indicate that the Respondent did not at the
time have knowledge of Stahl's activities. It does not appear to have been put to other
employees. It may well have been asked of Stahl as a preliminary to the threat of dis-
charge. We need not speculate whether, if Stahl had desisted from further organizational
activity, he would not have been discharged
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Vleet pointed out that Stahl's sales record from November through
January was poor and declining," and he testified that he warned Stahl in
November or December that he would be laid off unless his sales improved. Kas-
per also testified that during the November-January period he several times
warned Stahl of discharge if he did not attend meetings and increase his sales.
According to Kasper, he both kidded and warned Stahl about his attendance at
meetings.
Stahl testified that after he was discharged, either on the same day or a few
days later, he stopped to see Van Vleet at the lot and asked what Kasper had
discussed with the latter immediately before Stahl's discharge. Van Vleet, it
is claimed, replied that Kasper had told him that he was going to fire Stahl,
to which Van Vleet answered during the course of "a little discussion," "We
have got a good sales force built up, if you want to tear it down that's your
business." This testimony is not denied. Stahl testified further that he had
never "actually" been warned or threatened ; all were criticized : Van Vleet,
Kasper, and Sawyer would tell the men to get on the ball, that they had not sold
for a few days. From Stahl's testimony it appears that men were "instructed"
and urged to do better.
Unable to recall that Sawyer warned that he would be fired if he left the lot
uncovered again, Stahl denied that he had been warned about his attendance-
at sales meetings or poor sales record. But he was hesitant as he offered this
testimony and his demeanor indicated that he was more concerned with protecting
himself than with making full disclosure. Yet the question remains whether
he was in fact discharged because of these elements of unsatisfactory service.
The Respondent attempted to show that both Sprotte and Stahl were unsatis-
factory. Concerning the former, Sawyer pointed to a sale by Sprotte in Novem-
ber 1951 under a conditional sales contract which required an indorser but on
which the indorser was listed as a witness. The obligation was not met when,
it fell due on December 27, and the Respondent "stood to lose potentially" $1,970;
the account was collected in January. Sprotte explained that Kasper had ap-
proved the sale, and that after the cosigner signed in blank, he, as salesman,
turned all four copies of the contract over to Kasper. The contract was ap-
parently typed on the following Monday, when the office girl, who was neither
supervised nor instructed by Sprotte, listed both the cosigner and the salesman
as witnesses. Sprotte testified further without contradiction that he got a
finance company to accept the deal and that Sawyer said to him early in January,
"You got us out of a hole. Thanks a lot."
The contract contained no guarantee clause or designated space for an in-
dorser or cosigner. It was accepted by Kasper for the Respondent. If, as Sawyer
testified, it was not brought to his attention until later, the responsibility for
that was not Sprotte's. Pressed for further details concerning the latter's work.
Sawyer testified that he "may have" made other mistakes ! The conditional
sales contract was cited as the primary reason for discharging Sprotte ; he
was also pointed to as the newest man in the new-car department.
As for Stahl, the Respondent pointed to the several elements considered
supra : His sales record, the incident of December 24, and his absence from and
lateness at sales meetings. But the single incident had occurred a month be-
fore the discharge, and the others were long-standing conditions which, though
10 Stahl exaggerated his sales record for the last 2 months
11
The word was heard by the reporter and recorded as "insulted." I stated on the rec-
ord at the time that "insulted" seemed incongruous in the light of the witness' testimony.
It apparently appeared so to the Respondent's counsel also ; he heard "insulted," and for
that reason, as he declared, asked that the answer be read.
SAWYER DOWNTOWN MOTORS, INC . 1747
protesting, the Respondent had permitted. This is not to say that such per-
mission is tantamount to condonation and must be continued. But where action
taken coincides with awareness of concerted activity and the reasons cited de
not appear to have persuaded the Respondent earlier, an inference of causation
by such activity is warranted.
While citing these various reasons, the Respondent apparently relies on a later
situation to justify the discharges. Sawyer testified that on January 23 he left
to attend a meeting with Buick representatives in New York City. When he
arrived, when the meeting started, and when he acquired the information do not
appear ; but he there learned of "projected plans" to cut new-car quotas 25 per-
cent or more. He thereupon dispatched an airmail special delivery letter in
longhand to Kasper, directing him to discharge Sprotte, Stahl, and Buettner,
another new-car salesman.
It does not appear that any such projected plans created an emergency ; nor
is there evidence of an immediate shortage of cars. In fact, Sawyer testified,
the Respondent had both new and used cars at the time. Further, he did not,
although he sent the letter airmail special delivery, communicate to Kasper
the extreme urgency for the speedy action which he indicated against all three
men. Although he proceeded with great haste against Sprotte only a few hours
after he had turned a new prospect over to the latter, Kasper had "no time"
to locate Stahl, who was the worst of the three included in the alleged direction
to discharge. I do not credit Sawyer's testimony that the discharges were
prompted by the news which he received at the meeting in New York.
The facts and the findings can be summarized as follows : Sprotte appears to
have been a satisfactory salesman 12 But for the uncontradicted testimony that
Van Vleet included Stahl in his reference to a good sales force when Kasper
declared that he was going to fire Stahl, it would appear that the latter's record
left much to be desired. It is clear to me and I find that there was no sufficient
reason for discharging Sprotte and that, whether or not there was for dis-
charging Stahl, he was not in fact discharged for any of the alleged reasons.
The very number of reasons cited by the Respondent makes the discharges suspect
as we note that, however sufficient each reason was portrayed as being, the Re-
spondent did not act on them until it moved against Sprotte 4 days after the
organizational meeting which was attended by 5 of its employees. The action
taken against Stahl on the following Monday can be understood as prompted
by his request on Saturday that Wagner attend a meeting. I find no other credible
explanation As for the question whether the accumulation of reasons dictated
the choice made when it become necessary to effect discharges as claimed by
the Respondent, I do not find credible Sawyer's suggestion of a suddenly emer-
gent crisis. Nor, as noted, do I accept Kasper's explanation that he was unable
to seek out Stahl on Friday. Further, the latter's testimony stands undenied that
he worked on Saturday ; presumably he could have been discharged on that
day.
"Although counsel inquired about this being a "24-hour job," the Respondent does not
claim that the discharges were made for soliciting on working time. To say that this
was a 24-hour job in the sense that a salesman was to devote all of his energy and time
to it does not mean literally that he was or could be forbidden to engage in concerted
activities. Reasonable restraints required by the nature of the work, certainly while on
the showroom floor or at the lot, could be imposed But in fact Stahl testified that he had
free time during working hours in periods when he was not on duty, and that while on
duty, when customers were not present, the men sent out cards, called prospects, and at
times just sat around. There was no rule against talking to other salesmen about other
than business matters , and other men would stop in and talk.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While a few are referred to, there is no evidence concerning affiliation of the
various salesmen employed by the Respondent. That Anderson and Lauer, who
were declared to be union members, were not discharged does not determine the
issue ; nor does the discharge of Buettner, who was not a union member. "A
complete housecleaning of union members and supporters is not essential to a
finding that some employees have been discriminated against."n
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
It has been found that the Respondent, by discharging and failing to reinstate
Sprotte and Stahl, discriminated against them in regard to their hire and tenure
of employment in violation of Section 8 (a) (3) of the Act. I shall therefore
recommend that the Respondent offer to said employees reinstatement to their
former or substantially equivalent positions;' without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of pay they may
have suffered by reason of the discriminatory action aforementioned by payment
to each of them of a sum of money equal to that which he would normally have
earned less his net earnings,15 which sum shall be computed 1° on a quarterly
basis during the period from the discriminatory discharge to the date of a proper
offer of reinstatement. It is also recommended that the Board order the Re-
spondent to make available to the Board upon request payroll and other records
to facilitate the checking of the amount of back pay due.17
It has been further found that the Respondent, by threats and interrogation
concerning concerted activities, interfered with, restrained , and coerced its
employees in violation of Section 8 (a) (1) of the Act. I shall therefore further
recommend that the Respondent cease and desist therefrom.
The unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Respondent's employees. Such purpose is related to
other unfair labor practices, and it is found that the danger of their commission
is reasonably to be apprehended. I shall therefore recommend a broad cease-
and-desist order, prohibiting infringement in any manner upon the rights guar-
anteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
13 Steuart Warner Corporation, 55 NLRB 593. See also Inter-City Advertising Company
of Greensboro, N C., Inc, 89 NLRB 1103 ; Pennwoven, Inc., 94 NLRB 175.
14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
15 Crossett Lumber Company, 8 NLRB 440 . See also Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
1°F W. Woolworth Company, 90 NLRB 289.
17 Ibid.
THE FIRESTONE TIRE & RUBBER COMPANY 1749
CONCLUSIONS or LAW
1. By discriminating in regard to the hire and tenure of employment of Wil-
liam Sprotte and Richard Stahl, thereby discouraging membership in a labor
organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
2. By such discrimination and by threatening , and interrogating employees
concerning concerted activities, thereby interfering with, restraining, and coerc-
ing its employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
THE FIRESTONE TIRE & RUBBER COMPANY and UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITPING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL, PETITIONER.
Case No. 4-R.0-1801. April 10, 1953
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Joseph A. Weston,
hearing officer. The hearing officer 's rulings made at the hearing are
free from prejudicial error and are hereby affirmed."
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem
-ber panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer is engaged in the manufacture of tires, tubes, and
other rubber products at plants in various parts of the United States.
Since 1948 the Employer and the Intervenor have bargained collec-
tively for a multiplant unit including the production and maintenance
employees at Pottstown, Pennsylvania, here in question. The Pe-
1 Local Union No. 336, United Rubber, Cork, Linoleum and Plastic Workers of America,
CIO, was permitted to intervene on the basis of its contractual interest.
103 NLRB No. 146.
257965-54-vol. 108-111