Soerens Motor Co.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was also handicapped." I accept as valid, and certainly as entirely likely, the fact that there was a misunderstanding between General Manager Blanchard and Superintendent Isley as to when and how many knitters Lsleyshould put on. After seeing Mr. Blanchard and hearing him testify on the stand, there was no doubt in my mind that he is the type of executive who would personally make all the final decisions, especially in a small plant of the Belinda kind--and would expect uniform production from every employee in the plant without regard to union or nonunion affiliations. Montgomery not only constituted an industrial liability, but would likely never measure up to the production standard. I hold, for these reasons, that Blanchard directed Isley to discharge and not reinstate Montgomery, and to assign the ex- planation of the misunderstanding. There being no union motive or bias involved, I hold that the Respondent officials acted within their rights under the law. (c) As above recited, Mr. Ertel's testimony was that he had worked for 18 years with 2 fellow employees with deformities similar to Montgomery who were competent knitters on welt-bar machines , and had observed 1 knitter operating a welt -turning machine whose hand was worse mutilated than Montgomery' s. Ertel's straightforward recitation of the 18 years satisfactory service of these 2 men with 1 company, and the accomplishment of the worse crippled man, distinguishes them from the neophyte Montgomery, who certainly did not receive his injury while working for Respondent. Perhaps no one better understands the reluctance of employers to hire physically handicapped persons who have incurred in- juries or are suffering from occupational diseases than does a man with the background of Mr. Ertel. To encourage industry to hire such persons , many States , including North Caro- lina 3 have enacted a "Second Injury Law" designed to limit the liability of the employer who hires physically handicapped persons. Many employers do not fully understand these laws. In light of the evidence set forth and the conclusions therefrom drawn I am of the opinion that the Respondent Belinda Hosiery Mills, Incorporated did not discriminatorily discharge and refuse to reinstate James W. Montgomery within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act, nor did the Respondent interfere with, restrain, or coerce its employees in the exercise of rights guaranteed them in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Respondent has not engaged in unfair labor practices in the discharge of and refusal to reinstate James W. Montgomery. lRecommendations omitted from publication.] ,Laws of 1929, chapter 120 as amended; Gen. stats. (NC) Ch. 97 sec . 35. See also: "The Presidents National Committee to Employ the Physically Handicapped." SOERENS MOTOR COMPANY, a corporation and PAUL RADEMACHER, CLARENCE CARLSON, and FRANKLIN A. HEADSON and UNITED AUTOMOBILE SALESMENS' LOCAL 174, UNITED OPTICAL AND INSTRUMENT WORKERS OF AMERICA, CIO SOERENS MOTOR COMPANY, a corporation and UNITED AU- TOMOBILE SALESMENS' LOCAL 174, UNITED OPTICAL AND INSTRUMENT WORKERS OF AMERICA, CIO. Cases Nos. 13-CA-1021 and 13-CA-1107. August 7, 1953 DECISION AND ORDER On May 14, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above - entitled proceeding, finding that the Respondent had not engaged in the unfair labor 106 NLRB No. 113. SOERENS MOTOR COMPANY 653 practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the charging parties filed exceptions to the Intermediate Report and a supporting brief. The Board' 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. [The Board dismissed the complaint.] 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Intermediate Report and Recommended Order The consolidated complaint herein, as amended at the hearing , alleges that the Respondent has violated Section 8 (a) (3) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, by discharging Willard A. Frakes on January 17, 1952, and Paul Rademacher, Clarence Carlson, and Franklin A. Headson on January 28, 1952, and thereafter failing and refusing to employ each of them, all because of their concerted activities on behalf of United Automobile Salesmens' Local 174, Amalgamated Clothing Workers of America, CIO, and United Automobile Salesmens' Local 174, United Optical and Instrument Workers of America, CIO, 1 collectively referred to as the Union; and by withdrawing economic benefits from em- ployees on April 21, 1952, with respect to purchasing automobiles, likewise because of its employees' concerted activities. The answer denies the allegations of commerce and of un- fair labor practices. A hearing was held before me at Milwaukee, Wisconsin, from November 17 to 20, 1952, inclusive, and, on General Counsel's motion to reopen the record for newly discovered evi- dence on the Respondent's knowledge of Rademacher's union activities, on May 4, 1953. Pur- suant to leave granted to all parties, briefs were filed by General Counsel and the Respond- ent. General Counsel's motion, made at the reopened hearing, to adjourn to Miami, Florida, to take the testimony of one Jack Browne was denied. General Counsel's request to the Board for special permission to appeal from such denial has since been denied. Upon the entire record in the case and from my observation of the witnesses. I make the following: FINDINGS OF FACT ( with reasons therefor) 1. THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED It was admitted and I find that the Respondent , a Wisconsin corporation with place of busi- ness at Milwaukee , Wisconsin, in the course of its business sells and distributes Ford auto- mobiles under a franchise from the Ford Motor Company; and that it annually purchases automobiles and trucks, valued at more than $5,000,000 which are shipped to its place of business from points outside the State of Wisconsin. It was agreed and I find that the fran- chise provides that the Respondent's location, equipment, and signs must be approved by Ford, and that the Respondent must maintain recommended equipment, render required serv- ice as therein set forth, maintain an approved accounting system, furnish financial state- ments when called upon, and recommend and sell only the Ford Company's parts as replace- ments for that Company's products. 1 The affiliation was changed from the former organization to the latter about March 11, 1952. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the Respondent is engaged in commerce within the meaning of the Act.2 It was admitted and I find that each of the organizations which are collectively referred to as the Union, as noted above, is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES References hereinafter made to the evidence, not ascribed to named witnesses, represent uncontradicted testimony, or findings where conflicts have been resolved; findings are made herein on the basis of reliable, probative, and substantial evidence on the record considered as a whole and the preponderance of the testimony taken, and evidence in conflict with the findings which is not discussed has not been credited. I have accepted as credible the testi- mony of some witnesses in part only; rejecting portions, I have felt warranted in crediting other portions of their testimony. Aside from the specific instances cited infra, my general impression is that Frakes, Headson, and Rademacher were not reliable witnesses . Carlson appeared to be more accu- rate, within the limits noted. A. The Respondent's knowledge of union activities Since about mid-November 1951 some 103 of the approximately 14 salesmen at that time employed by the Respondent talked about the Union. Robert Soerens, the Respondent's vice president and treasurer and son of its president, Buran, the new-car sales manager, Rossow, the used-car manager, and Metzelfeld ,the assistant new- and used -car sales manager, denied knowledge at least to January 28, 1952, that any salesmen had engaged in union activity. (These appear to be all of the Respondent's active supervisors; knowledge was not charged nor was reference made to any others.) The Respondent's place of business is small, and the doctrine of attributed knowledge 4 must here be considered. But the active participants in organizational activities testified to their efforts to conceal those activities from the Respondent. Frakes, the first to testify, declared that he tried to keep it secret until the Respondent was to be asked to hold an election. 5 Evidence was received concerning several specific incidents which allegedly showed knowledge by the Respondent. Headson called Rademacher at the showroom on January 22 to ask him to take care of a customer until he got back from dinner, and at the same time in- formed Rademacher that he had just gotten Thompson, another salesman, to sign a union card. 6 Headson testified that Buran on January 24 told him that he knew what this conversa- tion had been about. Further according to Headson, when Buran asked why Headson, who had been ill on the 23rd, had on that day called Rademacher and asked him to explain his absence to Buran, Headson replied that he had not known that Buran was in. I credit Buran's denial that he overheard any alleged telephone conversations between Headson and Rademacher and that he discussed it with either of them. 7 2Baxter Bros., 91 NLRB 1480; Cullen- Thompson Motor Company, 94 NLRB 1252; Harbor Chevrolet Company, 93 NLRB 1326; A. E. Rogers Co., 103 NLRB 1274. sOnly 5 of these have been identified: the 4 alleged discriminatees and Thompson, referred to infra. 4Stokely Foods, Inc., 91 NLRB 1267. 5 He nevertheless identified himself as a Soerens salesman when he attempted to recruit employees of other dealers. Recalled just before the close of the hearing, he testified that he had not tried to keep his union activity "as secret as possible." In fact, it then appeared that he had not really tried to keep it secret 6Considering the nature of the Respondent's telephone system as described by Rademacher, such a reference was reckless; it was unnecessary and hardly in keeping with any effort to keep knowledge of union activities from the Respondent. 7Rademacher also testified that on January 23, Buran asked why Headson had called him from the restaurant the day before; and when he replied that Headson had asked him to take care of a customer who was coming in, Buran remarked that the Respondent knew what was going on, warned Rademacher to keep away from Headson, and praised Rademacher for doing a fine job. If the reference to what was going on covered concerted activities, the Respondent clearly did not know what was going on (and despite prior alleged conversations with Rademacher, hereinafter noted): Rademacher was in fact the leader of this "wrong SOERENS MOTOR COMPANY 655 Frakes testified that after leaving a parking lot with Metzelfeld on a futile search for cards which Frakes claimed to have distributed , he made the provocative comment to Metzelfeld, as he put it, "to more or less feel him out," that the salesmen would one day be organized, and that Metzelfeld replied that the Respondent would see the men freeze in hell first and would break any drive as it had before . The complaint does not allege any violation in this connection ; the testimony was apparently offered to show antiunion animus . Whether, as dis- tinguished from a supervisor 's knowledge which is attributed to the employer , such a remark made under the circumstances here present (almost taunting after the cards were not found) is evidence of animus attributable to the Respondent , need not be decided. Frakes stands self-condemned as a provoker and, as noted infra where this incident is considered in detail, a falsifier , and I credit Metzelfeld 's denial of any such conversation. Rademacher testified that beginning about July 1951 he asked , on numerous occasions during staff meetings , for increased payments to salesmen. About the middle of November he started to make inquiries concerning union possibilities ; at first such inquiries were made of unions and their representatives off the Respondent 's premises , but beginning in the latter part of November and through December he spoke to fellow employees both on and off the premises. He declared that he himself joined the Union about January 2 . The extent of union activity on the Respondent's premises prior to January is indefinite . Whether for this reason or because of Rademacher 's (and Frakes') admitted efforts to keep the matter from the Re- spondent , there is basis for finding that throughout this period the Respondent had no knowl- edge of union activities among its salesmen.8 Rademacher continued to be active , arranging meetings , speaking to and signing up sales- men of various dealers throughout the city, and speaking to some owners and managers. On visits to other dealers , he identified himself as an employee of the Respondent, but asked that his organizational activities be kept "quiet." 9 He testified to conversations with all of the Respondent 's managers , and such testimony is pointed to as indicating that the Respondent was aware of his union activities in January. The first of these conversations was described as taking place 2 or 3 weeks before his discharge and early in January , although it might have been at the end of December. Rossow, sitting in his automobile with Rademacher , apparently first mentioned a union, declaring that it would kill the men's incentive; then, indicating that he knew that a union was being formed , as dis- tinguished from one already in being, he added that Soerens wouldn't stand for it and would close the business . (Although noticeably outspoken , Rademacher did not indicate to Rossow any belief that Soerens was already aware of the union activities for which he "wouldn't stand. ") Rademacher was still trying to keep the activities from the Respondent , it will be recalled , but he didn 't think that Rossow, who was his friend, 18 would talk. Rademacher testified to two other occasions , a week or two before his discharge , in which Rossow referred to union activities and mockingly inquired whether the Union would have a spot for him. Rossow denied that he ever had such conversations with Rademacher . I am not persuaded by Rademacher 's testimony. Rademacher's alleged conversation with Buran on January 23 concerning Headson's tele- phone call the day before has already been noted. ii On January 24 or 25 , he testified further, company." Nothing here leads me to modify my acceptance of Buran 's denial of such a conversation . The alleged note of praise is one instance of several remarks found in Rade- macher 's testimony and elsewhere, and referred to infra , which impressed me as injected by the witness to help "make the case." 8 See also footnote 7. Of 10 union cards produced , 7 were dated between January 5 and 9. and one each on January 16, 18 , and 23. Rademacher 's is dated January 5 , Frakes' January 7, Carlson 's January 9, and Headson's January 16. 91 do not indulge in the assumption that those on whom Rademacher and Frakes relied for secrecy, or some of them, broke faith and notified the Respondent . Rademacher 's speaking to dealers, here unidentified, was under the circumstances reckless or "convenient" since the possibility would be greater that they would notify the Respondent. ioRademacher testified that Rossow had previously called him names which were intended as opprobrious: Instigator , rabble rouser , leader of the goons. ilIf, as Headson and Rademacher testified , Buran in fact overheard the telephone con- versation of January 22, the Respondent knew that Thompson had signed a union card. The failure to act against Thompson is not explained by General Counsel 's argument, however ingenious, that after the union meeting of January 25 prompt action was taken against all who were apparently involved, with a confusion of names and substitution of Carlson for Thomp- 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metzelfeld told him that the Respondent would close down if the Union got in, and added that a man who had tried to organize a year before had been blacklisted . Metzelfeld denied having any such conversation. We have no issue of independent interference by threat. On the ques- tion of knowledge of union activities , Rademacher 's recitals suggest no more than a rudi- mentary suspicion without knowledge of the identify of the chief actor. Raymond Hanrahan , who identified himself as an automobile dealer, and who, it was stipu- lated after he left the stand, is sergeant-at-arms of the Union , testified that at a chance meeting with Soerens and Metzelfeld early in February 1952, but after the filing of the origi- nal charge herein, he pressed the former about union activities, "trying to sound (him) out," and elicited the reply, "I understand we discharged the secretary and treasurer of the Union and we did our share." Both Soerens and Metzelfeld testified that Hanrahan was a stranger to them and that when he asked about trouble with the Union , Soerens told him that he was misinformed ; and that no reference was made to discharged employees . Whatever the al- leged statement might suggest , whether prior knowledge or motive , I reject Hanrahan's testimony as unworthy of credence. I find that his story is a fabrication. (I assume that General Counsel, sponsoring him as a dealer, was unaware of his position in the Union.) When the hearing was reopened, one Hale, employed elsewhere as parts manager, and not a member of the Union, testified that he had bought a new car from the Respondent in January 1950, the sale being made by Rademacher and Metzelfeld, who had been strangers to him before that date; that he thereafter and during the next year and a half (up to approximately September 1951) saw Rademacher some 10 times , and Metzelfeld also, when he had his car greased, oiled, or otherwise worked on (there is no explanation of Hale's failure to inquire about Rademacher between approximately September 1951, when he had last seen him, and January 28 , 1952, or thereafter prior to September 26, 1952); that on or about September 26. 1952, he saw Metzelfeld about buying a new car and asked him where Rademacher was, to which Metzelfeld replied that the Respondent had to let Rademacher go since he had been a troublemaker and, when asked by Hale to explain, that Rademacher had tried to form a union; that in the latter part of February 1953, Hale's wife, who had herself seen Rademacher 7 or 8 times on these matters relating to their automobile , pointed him out as they drove by another dealer's, and that they returned and stopped to talk with him, Hale asking where he had been since his discharge by the Respondent; and that Rademacher told him of a pending case involving union activities, Hale disclosed what Metzelfeld had allegedly told him about Rademacher on September 26, and the latter declared that he could have used Hale's testi- mony. Metzelfeld testified that on September 26. Hale called him about a new car and , after he had come in, asked where Rademacher was; Metzelfeld denied that he said anything about union activities or more than that Rademacher was no longer employed by the Respondent. Resolution of this conflict need not be based entirely on my observation of the witnesses' demeanor. Although sufficiently interested in Rademacher to stop to see him in February 1953, when no special motive existed (I note that Mrs. Hale referred to him as "Paul Rade- macher" when she pointed him out to her husband). Hale had not asked for him as a salesman when he telephoned on September 26. According to Metzelfeld, Hale inquired concerning Rademacher during the noon hour discussion ; according to Hale, the inquiry was not made during the morning telephone conversation or the discussion at noon , but when and not until Hale returned that evening. (Whether or not, if true, the inquiry allegedly made "as a matter of conversation" is of a piece with Frakes' and Hanrahan's provocative questions need not be determined.) Further, were there no other aid in determining this question, it would appear to be most unlikely that, with this proceeding pending and after the complaint and notice of hearing had been issued, Metzelfeld declared that Rademacher had been discharged for union activity. Finally, it may be noted (although this point is not relied on) that Hale's testimony even if credited does not necessarily point to the Respondent's knowledge of union activities when it discharged Rademacher; there is possible consonance with the idea that after the discharge the Respondent, or Metzelfeld, evaluated Rademacher's attitude in this manner. (As much may be said of Browne's proposed testimony as described by General Counsel.) son. (See infra, in connection with Carlson's discharge.) It is true that a finding of dis- crimination does not depend on discharge of all union members. But General Counsel's argument is that all who were thought by the Respondent to be such (assuming knowledge of the meeting of January 25) were discharged. SOERENS MOTOR COMPANY 657 The Respondent argues that in any event the union activity here referred to occurred after the decision had been made on December 14 to discharge Rademacher . To this the answer is that. If credited and showing knowledge of union activities on or before January 28, such testimony would go to the question of credibility and whether the decision described was actually made on December 14. While there is no such reflection on Hale's testimony as there is on Hanrahan 's, I do not credit it and am not persuaded that the Respondent on January 28 had knowledge of Rade- macher 's union activities . Certainly this testimony does not overcome the net weight of all of the other testimony on this issue. To summarize , I am impressed with the admitted efforts to keep from the Respondent all knowledge of union activities , and I find that such efforts were successful . I do not credit tie testimony which would show knowledge on the basis of specific conversations with the Re- spondent 's representatives. Because reviewing authority may want to go beyond these findings concerning the Re- spondent 's knowledge of union activities , I shall analyze the testimony regarding the alleged discharges on the assumption that such knowledge existed. B. William A. Frakes Frakes was employed as a new-car salesman from August 9, 1951, until January 17, 1952. Rademacher , he testified , gave him a card in the showroom , and he joined the Union early in January, thereafter himself engaging in organizing activities among the Respondent 's sales- men and at other dealers. Approximately a week before the end of his employment (Frakes insisted that the incidents described did not occur on January 17), at about or shortly after noon . Soerens asked where he had been that morning. Although he testified that he had in fact been soliciting for the Union, Frakes replied to Soerens that he had been placing cards on windshields , an activity required of all salesmen as a means of recruiting prospects . When Soerens asked where Frakes had been so engaged , the latter named a private parking lot . Soerens declared that he did not believe him, and sent Metzelfeld to the lot with Frakes to see whether the cards had actually been distributed. No cards were found on or near the cars , and, still according to Frakes, Metzelfeld made no comment. Frakes testified further that he, said that the cards must have blown away ; he did not then or ever admit to the Respondent that he had not placed them. Metzelfeld testified that Frakes suggested the possibility that the owners of the auto- mobiles had removed the cards, an unlikely possibility with no cards lying in the lot. Maintaining that this occurred approximately a week before he was discharged, Frakes testified that nothing was said to him concerning the incident when he returned to the office or thereafter during his employ with the Respondent. The same day he allegedly visited a customer whom Soerens said he had tried to call 8 or 9 times . Questioned about the visit, Frakes mentioned an address at which no house was located and which was not in fact the customer's address. Frakes testified further that on the morning of January 17 he had again been organizing salesmen elsewhere ; when he returned to the office, Soerens charged him with not selling enough cars , to which he replied that his sales had been good the month before and that it takes time to build up prospects; Buran then spoke with Soerens and, without offering any reason , told Frakes he'd have to let him go, to which Frakes offered no protest. Frakes had never before been asked where he had been. He testified also that it was un- usual to be questioned concerning the side of the street where a customer lived. Soerens and Metzelfeld explained that the former questioned Frakes concerning his lack of success with such cards , and Soerens asked Metzelfeld to check and see whether Frakes was fixing the "right prices" on cars . Even if this explanation were not accepted (it appears that such checks had previously been made), there would be at worst 12 an unlawful motivation for the check made.19 But the result of the check stands and is itself sufficient reason for the dis- charge: there is no evidence that a salesman would not be discharged under such circum- stances, but that his conduct would be condoned except for the element of union activity. 12 As noted infra, before union activities were begun, Soerens had with reason suspected Rademacher of falsifying in connection with postal cards. 1sIf such check could be held to be discrimination with respect to working conditions, it is not alleged as an unfair labor practice 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether deviation from instructions was allowable or in fact allowed to enable Frakes to go to the doctor or dentist, or to shop, the frequency of allowable deviations was not shown. It appears , however, that Frakes deviated from instructions throughout that morning to or- ganize salesmen of other dealers when he should have been soliciting prospective customers or performing other tasks to obtain prospects ; and that he denied such deviation when ques- tioned by Soerens . Such tasks were clearly within the scope of his duties , as he recognized when he admitted that, although he never refused, he failed to follow instructions, and in spite of his claim that he was not on the Respondent 's time when he solicited salesmen at other dealers since he worked on straight commission . (He was under the Respondent's direction when he instructed new salesmen , attended sales meetings , and solicited prospects.) He testified that the workday started at 8 (or 8:30) a. m. and continued until 9 p. m., and it is clear that the Respondent 's hours were from 8:30 a. m. to 9 p. in., Monday through Friday, and from 8:30 a. m. to 5 p. m. on Saturday. The Respondent does not appear to have discrim- inated in expecting full performance , nor to have been unreasonable in view of its training program; nor would it have been unreasonable in discharging Frakes for neglecting his duties to the extent indicated . But he was not discharged for such general neglect, and we need not decide whether a salesman, employed "full time" on commission, may utilize any time during the so-called working day, and if so how much, for union activities. Both Soerens and Metzelfeld placed the card incident on January 17. Metzelfeld reported that no cards had been found and Soerens, becoming "suspicious," asked Frakes what else he had done that morning. Thereupon came the reference to the visit which Frakes had not made. Buran denied that he had discharged Frakes; he testified that Soerens told him of the termi- nation. I credit the testimony of Soerens, Metzelfeld, and Buran. About January 11, Frakes had had a meeting with a prospective employer. He told other salesmen that he was looking for a job or had an offer; he did not say that he had a job, but rather that he would be happy to take one if he got it. He denied that on January 17 he told Soerens that he had been interviewed by another company and was going to quit anyway. According to Soerens, when he pressed Frakes about the cards and the visit on January 17, the latter mentioned another job and then, remarking that he thought it better to tell the Respondent about it, he left. Soerens testified without contradiction that he refused to give Frakes a letter of recommendation , telling him that there was no reason for it at the time since he had another job. It is unnecessary to make another credibility finding against Frakes: if he did not quit, the Respondent was justified in discharging him on January 17. According to Soerens, it was "mutually agreed " that Frakes ' employment be terminated. Soerens testified that an advertisement for salesmen was placed in the local Sunday news- paper on December 16 and 23 , and later added January 6, and that there was no such adver- tisement at the time of Frakes ' discharge. Although he declared that it did not appear after the latter date, it was in fact repeated on January 13. Despite this error, Soerens impressed me on the whole as a reliable witness. The advertisement was placed the first three times to obtain replacements for Frakes and Rademacher . General Counsel has not argued any conclusion to be drawn from its reappear- ance on January 13. Whether or not it reflected the Respondent 's dissatisfaction or uncer- tainty concerning its salesmen , we need not speculate. There was no repetition after January 18, when word was received concerning the reduced allocation of automobiles, infra. In any event, the advertisement does not, by indicating an intent to replace Frakes, prove that he was discharged or unlawfully so; the intention to replace him and Rademacher is admitted (infra), but for the reasons stated. If it be urged that the appearance of the advertisement indicates, not any intention to replace Frakes and Rademacher , but a desire to augment the staff, there is no evidence of such desire or basis of proof thereof beyond the advertisement itself. Although the point was raised , we need not concern ourselves over the question of the legality of the distribution of the cards mentioned. While under the Wisconsin law it is a mis- demeanor to place cards generally as herein discussed , it appears that express permission had been granted for such activity on the private parking lot named by Frakes. Further, the question of legality or permission was not involved when Frakes said that he had placed the cards and was questioned about them . Insistence by the Respondent on such activity, even if illegal, was not discriminatory . Nor am I inclined to modify my credibility findings, General Counsel's urging to the contrary notwithstanding , because the Respondent engaged in the forbidden general practice , which it has since discontinued although other dealers persist. The Respondent 's alleged decision on December 14 to replace Frakes and Rademacher is considered in connection with the latter 's discharge, infra. Its justification and right to dis- SOERENS MOTOR COMPANY 659 charge Frakes , found herein, remain regardless of the finding to be made concerning the earlier decision and steps taken thereunder. C. Clarence Carlson Carlson was employed as a used-car salesman from November 9, 1951, until his discharge on January 28. He did not engage in union activities beyond joining the Union on January 9. It is not claimed that the Respondent took action against union members generally, and the fact that Carlson was a member, as distinguished from union activities, does not appear to have been known to the Respondent. He testified that Soerens'4 told him at the time of discharge that he was not sufficiently ag- gressive. (Rossow, he noted, had spoken to him about this in December.) His diffidence as I observed it was in marked contrast to the manner of the other witnesses. Whether such a manner militates against success in the automobile business, the Respondent could lawfully take action against Carlson therefor. The additional reason given him, that the Respondent had decided to cut down on the number of its salesmen, is considered, infra, in the next sub- section. (He had less seniority Is than any other used-car salesman, and unlike the others had not purchased used cars.) I credit Soerens' denial of Carlson's testimony that the former refused to tell him why he was being fired and referred to the attraction which Communism holds for those who do not earn enough. Carlson's testimony in this connection is of a pattern with Hanrahan's and various statements by Rademacher, infra?' Judging from the manner and demeanor of the witnesses, I conclude that Soerens did not utter suchunnecessary and self-incriminating remarks. It appears that Rademacher, Headson, and Thompson were the only employees of the Re- spondent who attended a union meeting on January 25. General Counsel connects such attend- ance with the discharges herein, claiming that because Thompson and Carlson "have similar names, ... the conclusion is inescapable that Carlson was discharged ... in the mistaken belief" that he had attended the meeting. I can escape such a conclusion.17 The implication being that the employees had been successful in keeping knowledge of prior meetings from the Respondent, there is no indication of the manner in which the information was now transmitted. Post hoc, propter hoc! Nor is further "explanation" called for by the fact that Buran, the new-car manager, dis- charged Carlson, who was a used -car salesman. (General Counsel has not suggested dis- crimination on account of this circumstance.) In the process of being hired. Carlson spoke with the used-car manager, the new-car manager "perhaps the longest," and the assistant new- and used-car manager. D. Franklin A. Headson Headson entered the Respondent's employ as a new-car salesman on January 3. He testified that he signed a union card at Rademacher's request during the first week of January and of his employment, 18 and that he attended 3 union meetings within the first 3 weeks. It is to be noted that Headson was not discharged immediately after the telephone call of January 22, described supra, and his absence the following day despite the claim 19 that the Respondent knew that he had recruited Thompson into the Union. 'Ibis latter act, of which the Respondent had no knowledge, as has been found supra, is the only instance cited of Headson's union ac- tivity beyond the fact of mere membership. 14Soerens testified that he was "present in the very last part of (Carlson's) discharge," but that Buran actually effected the termination. The latter testified that, when he discharged Carlson, he told him that he is not suited for the business. is Reflecting on his reliability, Carlson on direct examination compared his length of serv- ice with Headson's and Thompson's, both new-car salesmen Later he declared that he "imagined" that the latter was transferred to used cars; Soerens testified that such transfer occurred after Carlson was discharged. 16See also footnote 7. 17 See also footnote 11. 18 Cf. footnote 8. 19 This matter is further analyzed in connection with the question of Rademacher's credi- bility, infra. 322615 0 - 54 - 43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Headson testified that on January 28, Soerens told him he would have to let him go since he did not expect 1952 production of automobiles tobe as large as 1951's. In addition, he testified first that Soerensaddedthathewasgomgto hire more experienced men, and later that Soerens said that he had to reduce the sales force. According to Soerens, he told Headson that he was sorry to have to let him go so soon after he had been hired; but he had not known that his allotment would be so drastically cut, and the older men in the organization could do the job. Soerens testified that at a meeting, first for dealers and then for dealers and salesmen, on January 18, he was advised that considerably fewer new cars would be available that year. Because of National Production Authority and Controlled Materials Plan restrictions, it was estimated that not more than two-thirds of 1951's allotment would be received by the regional sales district in 1952.20 With this in mind, and after inspecting the new model, which he testified was the only completely new model in the industry for that year, Soerens decided that his sales force could be materially reduced without affecting sales. He testified further that he hired no salesmen until October or November 1952 although one other man left in February. On January 28, for the first time at the end of a month in several years, the Re- spondent had no new cars on hand and only one new truck. (Under the circumstances and assuming that the discharges were otherwise lawful, no suspicion attaches to the fact that action was taken on that day rather than at the end of the month.) Headson further testified that he pointed out, when Soerens told him that his sales were not as high as they might be, that his sales during January, which constituted the entire period of his employment by the Respondent, exceeded those of Graber, who had been with the Re- spondent for several years. The records show that Headson, Graber, and Frakes were closely bunched and considerably below the other salesmen for that month. 2iBut it is quite reasonable to discharge a new employee with a poor sales record while retaining an older if generally satisfactory one with an equally poor record for the recent period. As subsidiary reasons, Soerens testified to Headson's absence several times without notice, his undependability on floor schedules, and his lack of aggressiveness in securing prospects. E. Paul Rademacher Rademacher was employed by the Respondent as a new-car salesman from January 23, 1950, until his discharge on January 28, 1952. His early organizational activities have been described, supra. He testified that he signed a union card early in January in the Union's office, and was elected secretary of the group on January 21. According to the Respondent, it had been decided about December 14 to replace both Frakes and Rademacher, but actual termination was postponed until some time after the yearend holidays. 22 In the meantime, the Respondent attempted to obtain replacements for them: an advertisement was placed in the local Sunday newspaper from December 16 through January 13, and Headson and Thompson were hired on January 3 and 8 respectively. (As noted, su r, in connection with Headson's discharge, neither Frakes nor Rademacher was in fact replaced except for a brief period by Thompson.) Rademacher testified that on January 28, Soerens called him into his office, and remarking that Rademacher was "a lot more intelligent than (the Respondent) ever anticipated," told him that there was no more need for him. He testified further that after considerable prodding by Rademacher for reasons, Soerens stated that his recent deals had not been good, and, with 20 The actual reduction in the Respondent's allotment for 1952 was greater its potential allotment for 1951 had been 1,000 cars; 650 were actually received A couple of days after the January 18 meeting, the Respondent was given a potential allotment of 893. The anticipation of a one-third reduction, which cannot be regarded as unreasonable in the light of the Re- spondent's experience, would have lowered the latter figure to 595. The actual total for 1952 was expected, at the time of the hearing, to be not more than 452. This is cited, not as proof of the anticipation, but to indicate that, if harbored, it was apparently not unreasonable. 21 Thompson, who missed the first week in January, had an equally poor record. As noted, supra he signed a union card He was not discharged. 22 The consideration which this delay purportedly represented (despite the reason given, it may also have been due to the desire to obtain and train replacements) was denied to another employee, whose discharge is not in issue: he was discharged on Christmas Day, having been employed the previous Saturday. The Respondent has never given salesmen notice of dis- charge. It believes that the nature of their activity does not permit notice to be given SOERENS MOTOR COMPANY 661 further discussion pro and con concerning Rademacher 's sales record, that Soerens then de- clared, "You can't attempt to come in herewith an organization and try to take over my place of business and tell me how to run it." After Rademacher taunted Soerens with having gotten the business "on a silver dish," the latter , evidently annoyed, called him a "filthy Com- munist, a Red," and a "breeder of Socialism." At this point Rademacher allegedly switched the conversation , remarking that the men wanted only decent hours , wages , and fair repre- sentation ; in this manner he tied the matter up with concerted activities although at another point in the conversation Soerens indicated knowledge that something was brewing and his intent to wipe it out. The record provides several opportunities to evaluate Rademacher 's reliability as a wit- ness. By introduction of a letter from the district sales manager declaring his qualification for membership in the Ford "500 Club, " and a card which referred to his "outstanding sales ability, " and by cross -examination of Soerens in this connection , Rademacher would have given the impression that his record was outstanding . He surely knew that, as was later stipu- lated, every salesman who had been in the Respondent's employ for a year had received similar recognition. Rademacher 's testimony concerning a conversation with Buran with reference to Headson's telephone call of January 22 is self-defeating. Rademacher allegedly not only knew, from his detailed experience with such a telephone system, that someone had listened in, but Buran told him that he knew that Headson had called and that he was aware of what was going on. Yet with the motive as charged , the knowledge as testified to by Rademacher , and the clear opportunity presented by Headson 's absence on the following day, the Respondent took no action although it is charged with discriminatorily discharging Headson and others within a week, the only intervening fact being another union meeting. This situation has been referred to, supra and disposed of in connection with the issues of the Respondent's knowledge and the discharge of Headson. But it is also important on the issue of Rademacher 's credibility since there are so many other conflicting statements on which depend a determination concerning Rademacher 's discharge. I have referred , supra, to several instances of self-serving statements testified to by Rademacher which were quite unnecessary and almost irrelevant to their context and which impressed me as unlikely in view of the apparent character of those to whom they were charged as I observed them. Rademacher further testified , and Soerens denied, that the latter at the time of discharge not only referred to Rademacher 's intelligence but remarked, "We never realized we had a man of your capabilities ." This in contrast with Rademacher 's claimed need to "prod" Soerens to talk. During the same conversation , Soerens allegedly referred to Rademacher 's going around to other dealers and giving the Respondent "a bad name." Later Rademacher offered a wholly irrelevant explanation that another salesman quit 2 years before because he received "a bad deal." I recognize the remark as an attempt to provide background consistent with Rademacher 's ideas of an effective presentation. This comment applies also to his volunteered statement that the penalty for lateness was writing cards in quantity. However important to those affected , such details of working conditions were immaterial to the issues in the case, which were clear to Rademacher. Finally in this connection , Rademacher claimed that he warned Soerens that he was making a mistake and advised him to consult his attorneys ; to which the reply was that the Respondent had so checked : "This is well planned out ahead of time, we dealers in Milwaukee know what we're doing , something is going on and we intend to wipe it out." In support of one of the grounds assigned for Rademacher 's discharge , Soerens and Buran testified that in September or October 1951 (when there was no question of union activities), the latter, suspecting that Rademacher was using the same batch of postal cards for daily mailing to obtain prospects , checked the cards and verified his suspicions . Buran had there- upon fired Rademacher but after several hours' discussion gave him "one more chance." Rademacher , uncertainly at first but then definitely , denied that such an incident occurred. Elsewhere Rademacher testified that he did not know that the Respondent expected prompt attendance at morning sales meetings . Yet, as noted, he pointed out that he and others were penalized for being late! It is quite unnecessary to determine the extent to which Rademacher authored a handbill 22 received in evidence or the weight to be given to it on the question whether he is given to reck- 22Whether it was "indefensible" (Jefferson Standard Broadcasting Company , 94 NLRB 1507) or, in the language of the court, "unlawful, " does not here concern us since it was issued after, and was not cited as justification for Rademacher's discharge. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less statements. We therefore need not decide whether statements which "do not go beyond the bounds of legitimate union campaigning"u may nevertheless reflect on a witness' veracity. The handbill aside, I was not favorably impressed with Rademacher's manner, demeanor, or credibility. Whether in connection with the postal card incident the year before, the alleged discussion with various supervisors concerning unions, or his claimed distinction in obtaining the "500 Club" award, Rademacher's manner was one of brazen assurance in defiance even of the facts where they were indicated as contrary. His manner, in fact, would tend to per- suade of "the truth of what he denies." 25 As for the Respondent's decision of December 14, Soerens testified that he discussed the matter with Buran, Rossow,andMetzelfeld,anddecided L6todischarge Frakes and Rademacher because of their sales record and general attitude. The analysis made of sales records indi- cates that, of the four new-car salesmen employed by the Respondent throughout 1951, Kircher had earned $7,538 in 1951, Rademacher $5,528, Miller $4,534, and Graber $4,047. But for the second half of the year the respective figures were $ 3,493, $1,853, $1,839, and $ 2,002. Rademacher stood second on the year, but in a virtual tie for the last place on the last 6 months. 27 The Respondent pointed to the latter circumstance and the fact that his sales during the second half as compared with the first half of the year represented a reduction of 49.5 percent, considerably greater than the reduction of any of the others. 28The Respondent also stressed the washout 29 records as indicating that Rademacher's was lower 90 than that of any other new-car salesman.25 Whether the drop in Rademacher's sales did actually persuade the Respondent in the face of earlier record might be questioned. Light may be found (the question of knowledge of union activities aside) in the absence of proven bias and in the other reasons cited for the discharge. Describing Rademacher's general attitude, Soerens mentioned without contradiction Rade- macher's complaints that sales contests were improperly run and that he was placed on weak teams, the postal card incident, his failure to attend meetings on time, and his unreliability with respect to floor schedules. If the Respondent found Rademacher's attitude, as described, unsatisfactory, it could lawfully discharge him; the validity of his complaints is not in issue. Soerens testified, in the main without contradiction by Rademacher, that at the time of the discharge he cited the various reasons to Rademacher. A delay in discharge, after decision therefor has allegedly been made, calls for explanation. The explanation, a desire to wait until after the holidays, is simple and acceptable, especially when combined with an attempt to replace. The burden is General Counsel's to prove unlawful motivation in the face of the Respondent's evidence as to the date and reason for the decision to discharge Rademacher (and Frakes). That burden has not been sustained. %Blue Banner Laundry and Cleaners, 100 NLRB 2. 25 Dyer v. MacDougall, 201 F. 2d 265 (C. A. 2), December 31, 1952. 26 This decision appears to have been substantiated by the advertisement for salesmen which appeared on December 16. 2lRademacher's excuse, of which he was positive, that cars were scarce during the latter part, is thin. 28 The Respondent apparently did not thereafter consider Rademacher's sales record for the month of January 1952, which again was second among the four salesmen. 29 Washout may be defined briefly as net or ultimate profit after deduction of commissions and repairs to trade-ins, and allowing for sums received on sale of trade-ins until a given transaction is entirely reduced to cash by sale of the last car in the series of exchanges originating from the new-car deal. There is an average of 2 1/2 to 3 trades for every new car sold. No point was raised or objection at any time made to the reference to washouts in connection with sales records. 25 Rademacher suggested that washout records depend on appraisals and values placed on trade-ins, and that the Respondent to that extent controlled his washouts. Such appraisals, however, are maxima allowed to permit closing of a deal. The salesman is not required to allow the maximum; the Respondent would be expected to welcome lower allowances, and there is no evidence that it cut its financial nose to spite Rademacher's washout records. 61 Other details concerning sales, such as references to contests and special deals, do not shed much light on the questions to be here determined I note also that there appeared to be discrepancies in the Respondent's records. But to the extent that they were pointed out, they were explained or apparently satisfied General Counsel, who raised no further issue in that connection. SOERENS MOTOR COMPANY 663 F. The withdrawal of benefits on April 21 Pursuant to a stipulation for consent election , the Board conducted an election among the Respondent's employees between 9:30 and 10 a.m . on April 21, 1952. The vote as tallied was 5 for the Union, 4 against, and 1 vote challenged , the latter being Rademacher's and the ground for the challenge being that he had acted as observer for the Union. Prior to the election, the Respondent's salesmen , when purchasing used cars, themselves signed and paid with checks on a so -called special account which did not in fact exist. When such checks reached the Respondent's bank, the latter would notify the Respondent, which would then issue its check to cover the special account check. This system was discontinued shortly after lunch on the day of the election. Soerens testified that he had for some time discussed with the bank discontinuance of this procedure ; it had been initiated when the Respondent's staff was smaller, and he now wanted to guard against issuance of unwarranted checks; also, the bank did not favor the arrange- ment. After the Union made its claim of majority representation in February, the election was arranged , and the Respondent decided to postpone discontinuance of the special account system until after the election. The charge covering this situation was received by the Respondent about May 1, and to "relieve " itself of such a charge, the Respondent immediately restituted the special account procedure. It appears that during the interim it was necessary for salesmen to check with the Respondent before purchasing used cars and paying for them. But Soerens testified without contradiction 32 that this change did not make it more difficult for the salesmen to make pur- chases; he had explained to them the reason for the change and had in fact for some time urged them to get a regular company check when purchasing cars near the Respondent's premises . Nor does the record of the number of used cars purchased each month disclose a falling off during the period when the special account was not used. The Respondent had the right to modify conditions of operation of its business with proper regard to its employees' right to engage in organizational activities . Consideration of the extent to which the new system avoided or limited disadvantages of the old which the Re- spondent at that time allegedly recognized goes to the question of the Respondent's intent in effecting the change. Soerens ' testimony in this connection has not been refuted. In the light of his explanation , the change appears to have been a reasonable one. That the Respondent postponed it pending the election is as consistent with a desire to avoid any change during that period as with admission that the change constituted loss to the em- ployees; surely it would have been well advised to postpone a benefit. P Further, if the action taken were as clearly a loss to employees as a wage cut postponed until after an election, the reason and intent behind it would need to be considered. As noted, unlawful intent has not been shown , nor for that matter does it appear that the Respondent regarded the change as disadvantageous to the employees . Finally, although the complaint alleges that the employees lost "economic benefits ," Xsuch loss has not been shown. Were we to assume that loss oc- curred because of the necessity to obtain a check from the Respondent for each purchase, this would certainly be, on the record before j is, a case of de minimis. I find that the Respondent has not discriminatorily discharged or failed to employ Frakes, Carlson, Headson, or Rademacher, or discriminatorily withdrawn economic benefits from its employees. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. United Automobile Salesmens ' Local 174, Amalgamated Clothing Workers of America. CIO, and United Automobile Salesmens ' Local 174, United Optical and Instrument Workers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 32Rademacher , with the Respondent for 2 years, testified that he was to call before he issued a special account check, and that he never in fact used the checkbook which was given him. He had purchased cars with another salesman, who was more experienced and who did not have to call the Respondent for approval. a+ Standard Coil Products Company, Inc., 99 NLRB 899. 34 The charge alleged a reduction of earnings by at least 30 percent. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act. [Recommendations omitted from publication.] FLORENCE STOVE COMPANY andLOCAL UNION NO. 86, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, P e t i t i o n e r and LOCAL 2893, UNITED STEEL- WORKERS OF AMERICA, CIO. Case No . 1-RC-3254. August 7, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold M. Kowal, 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-member panel [Members Houston, Styles, and Peterson]. 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 certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to sever a unit of powerhouse employees from an existing production and maintenance unit at the Employer's Gardner, Massachusetts, plant. The Inter- venor and Employer contend that the unit sought is inappro- priate because of a substantial plantwide bargaining history and the integrated character of plant operations. The Employer is engaged in the manufacture of electric stove ranges, electric heaters, and minor aircraft parts at its Gardner plant. Since 1944 the powerhouse employees have been represented by the Intervenor, along with other production and maintenance employees. The Employer employs about 450 em- ployees in its operations. Of these, 5 employees, consisting of 1 licensed engineer and 4 licensed firemen, are assigned to the powerplant. The work of the powerhouse employees is confined exclusively to the powerplant, a two-story building, consisting of a boiler- room and an engine room, which is attached to the main plant. The powerhouse employees perform the usual duties of their classification in connection with the operation of the high- 106 NLRB No. 107.