John McAuliffe Ford, Inc.

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John McAuliffe Ford, Inc. and Ernest Felice John McAuliffe Ford, Inc. and Phillip Felice. Cases Nos. 7-CA- 2958(1) and 7-CA-2958(2). November 16, 1961 DECISION AND ORDER On April 11, 1961, Trial Examiner John H. Dorsey issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at, the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and finds merit in General Counsel's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only insofar as they are consistent with the following. The Respondent purchased Cy Owens, Inc., a Ford automobile deal- ership, in September 1960, and received employment applications from about 68 of the former employees of Owens, Inc. On September 19, it employed all but six of the applicants. Two of the rejected six were Ernest Felice and his son, Phillip. Both were new car salesmen. The complaint alleges that the refusal to employ the Felices violated Sec- tion 8 (a) (3) and (1) of the Act. The Trial Examiner found, how- ever, that Respondent's refusal to employ the Felices was not influ- enced by any "antiunion proclivities" and, thus, was not unlawful. During the summer of 1960 while employed by Owens, Inc., Ernest Felice actively solicited union membership on behalf of the Salesmen's Guild of America among the salesmen of approximately a hundred automobile dealers, including those of Owens, Inc. Cecil Owens, president of Owens, Inc., was aware of Ernest's union activities and told McAuliffe, Respondent's president, of such activities prior to the time Respondent took over operation of the dealership. However, Respondent contends, and the Trial Examiner so found, that Ernest's union activities played no part in the refusal to hire him. It Was Respondent's position, in substance, that the refusal was based on Ernest's (1) reputation as a salesman interested only in a "fast" 134 NLRB No. 29. JOHN McAULIFFE FORD, INC. 341 dollar and not in his customers, (2) failure to spend sufficient time at his dealer's place of business, (3) criminal background, and (4) earning record. We cannot agree with the Trial Examiner that these asserted reasons were the real reasons for the failure to hire Ernest Felice. In the first place, the basis of the criticism of Ernest appears to be rather tenuous. Thus, Ernest's "fast" dollar reputation was concededly based on what McAuliffe had "picked up," and the conclusion that Ernest did not spend enough time on the job was McAuliffe's asumption from the fact that Ernest was engaged in union activities.' As for the criminal rec- ord, the evidence does show that Ernest was accused of being involved in several serious crimes, but there is no evidence of any conviction. Moreover, the most recent charge against him appears to have been made in 1945, or some 15 years before the events involved in this pro- ceeding. With respect to the earnings, the record shows Ernest led all of Owens, Inc.'s approximately 10 new car salesmen in 1959 and was at the time of his release in 1960 ahead of all but 2 of the salesmen. To be sure, during July, August, and September, 1960, Ernest had no earnings. However, at least two other Owen's salesmen having no earnings for those months were hired by McAuliffe. Rather do we find that the Felices were treated by Respondent in a disparate manner from that of the other employees. Thus, the Re- spondent did, in fact, hire salesmen with earning records no better, if not worse, than that of Ernest. Further, unlike the situation with respect to any other applicant for employment, McAuliffe selected Ernest for investigation by his attorneys. Similarly, the Felices' situation was unique in that of the six applicants not hired by McAu- liffe they were the only ones whose release was not recommended by their immediate supervisor. Significant in explaining this disparate treatment is, we find, the evidence that William Grant, the sales man- ager of a prospective employer of Phillip Felice, telephoned Respond- ent's sales manager, Paulson, and asked why Phillip was not employed by Respondent. According to Grant, Paulson replied in substance that Phillip was a good man and that he had been let go because the Company felt that his father was for the Union and. that Phillip shared his father's views.2 1 Ernest Felice testified that he told the union representative he would help with organizing activities on his time off, switching floor time with other salesmen, if neces- sary. There is no evidence that he did, in fact, engage in union activities at other times or that Owens, Inc, objected to his switching floor time. 2 Although Paulson admitted he had talked to Grant, he stated he had "no recollec- tion . . whatsoever" that Ernest Felice's union activity was mentioned The Trial Examiner credited Paulson, but without giving specific reasons therefor Grant was, however, a disinterested witness. Furthermore, Phillip Felice testified that Grant told him about the conversation immediately after the telephone call and his testimony, which was not discredited or objected to, corroborates Grant's version of the conversation. Under these circumstances, we cannot adopt the Trial Examiner's credibility findings with respect to the telephone conversation. Rather, we credit Grant and his version. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, as it appears that the reasons for refusing to hire Ernest Felice are lacking in merit and as we find that the motivation for the refusal to hire Ernest Felice was, as revealed by Paulson in his conversation with Grant, the union activities of Ernest Felice, we conclude,' contrary to the Trial Examiner, that his discharge was violative of the Act. It is undisputed, and the Trial Examiner found, Phillip Felice was refused employment by the Respondent because the Respondent was of the opinion that it would create a personnel problem if the Re- spondent employed him and refused to employ his father, Ernest Felice. As we have found that Respondent's failure to offer employ- ment to Ernest Felice on September 19, 1960, constituted a violation of Section 8(a) (3) and (1) of the Act, we further find that its failure to offer employment on that date to Phillip Felice also constituted a violation of said section.3 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices; we shall order it to cease and desist, therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of our finding herein that Respondent unlawfully discrimi- nated against Ernest Felice and Phillip Felice by its failure to offer them employment, we shall order the Respondent to offer to employ each of them. We shall further order the Respondent to make whole the discriminatees by payment to each of them of a sum of money equal to that which each would normally have earned as commissions or otherwise from September 19, 1960, the date of Respondent's dis- crimination against them, to the date or dates on which it offers to employ them, less the net earnings of each during such period, said backpay to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. However, in accordance with our customary practice,4 we exclude from the computation of backpay due to the discriminatees the period between the date of the issuance of the Intermediate Report and the date of our Decision and Order as the Trial Examiner had recom- mended the dismissal of the complaint. Because we believe that the Respondent's conduct in the commis- sion of the unfair labor practices found herein goes to the very heart of the Act, and also because we believe that it may be anticipated from the Respondent's past conduct that the Respondent may commit other violations of the Act in the future, we shall issue a broad cease- s Bakersfield Foods Co., Inc., 123 NLRB 1130, 1142. Further, the credited testimony of Grant, referred to above, suggests that Phillip was discharged in part, not only be- cause of his father's union activities but also because of Respondent's suspicion that he, too, favored the Union A Puerto Rico Drydock & Marine Terminals, Inc., 123 NLRB 1298, 1303, 1304. JOHN McAULIFFE FORD, INC. 343 and-desist order forbidding the Respondent from infringing in any other manner upon the rights of its employees as guaranteed by the Act, in addition to those rights found to have been violated herein .5 ORDER Upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, John McAuliffe Ford, Inc., Pontiac, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activity on behalf of, Sales- men's Guild of America, or any other labor organization of its em- ployees, by refusing to hire applicants for employment, or by discriminating in any other manner in regard to hire, tenure, or any other term or condition of employment, except to the extent permitted under Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting ancf Disclosure Act of 1959. (b) In any other manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of the right to self-organization , to form labor organizations, to join or assist Salesmen 's Guild of America, or any other labor organization, 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 , as guaranteed in Section 7 of the Act, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. Take the following affirmative action which the Board finds will effectuate the policies of the Act : , (a) Offer to employ Ernest Felice and Phillip Felice in positions the same or substantially equivalent to those at which they would have been employed had they not been discriminated against, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay or other income suffered in the manner set forth in the section of the decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying , all payroll records, social se- curity payment records, timecards , personnel records land reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. e See Caroline M Layton White, d/b/a Layton Oil Company, 128 NLRB 252, 261. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its establishment in Pontiac, Michigan, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith. 0In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX 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, or activity on behalf of, Salesmen's Guild of America, or any other labor organization of our employees, by refusing to hire applicants for employment, or by discriminating in any other manner in regard to hire, tenure, or any other term or condition of-employment, except to the extent permitted under Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer immediately to employ Ernest Felice and Phillip Felice in positions the same as or substantially equivalent to those at which they would have been employed, absent the discrimina- tion against them, without prejudice to their seniority and other rights and privileges. WE WILL make Ernest Felice and Phillip Felice whole for any loss of pay or other income suffered as a result of the discrimina- tion against them. WE WILL NOT in any other manner interfere with, restrain, or coerce applicants for employment or employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Salesmen's Guild of America, or any other labor organi- zation, 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 protec- tion, as guaranteed in Section 7 of the Act, or to refrain from any JOHN McAULIFFE FORD, INC. 345 and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this 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, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. JOHN MCAULIFFE FORD, 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 STATEMENT OF THE CASE Upon charges filed on October 31, 1960,1 by Ernest Felice and Phillip Felice against John McAuliffe Ford, Inc., herein called Respondent, the General Counsel for the National Labor Relations Board, herein called General Counsel, consolidated the cases for hearing and, on January 3, 1961, issued a complaint alleging that Re- spondent had engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer in which it admitted certain jurisdictional facts. It denied violating the Act as alleged in the complaint. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Detroit, Michigan, on February 6 and 7, 1961. General Counsel, Respondent, and the Charging Parties were each represented by counsel. The parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The parties waived oral argument. General Counsel and Respondent filed briefs. Upon consideration of the entire record and the briefs submitted, and upon observation of the witnesses, I make the following: FINDINGS of FACT 1. THE BUSINESS OF RESPONDENT On September 9, Respondent was incorporated as a Michigan profit corporation with no principal office or place of business established as of that date. On Septem- ber 22 it purchased from Cy Owens, Inc., herein referred to as Owens, Inc., a Ford automobile dealership located in Pontiac, Michigan.2 The res of the sale was physical assets. It did not include goodwill or other trade assets. As part of the transaction Owens, Inc., leased to Respondent the premises in which Owens, Inc., had operated the dealership. Owens, Inc., ceased to operate the dealership at the close of business September 20. Since- September 21, Respondent has operated the dealership and has been and i All dates herein are in the year 1960 unless otherwise shown. Because of financial difficulties, Owens, Inc, was forced to sell its dealership to a purchaser acceptable to Ford Motor Company. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is engaged in the sale at retail of new and used motor vehicles, parts , accessories, and service. In the period from September 21 through December 31, Respondent 's gross sales exceeded $800,000. In the same period Respondent purchased from a point outside the State of Michigan and caused to be transported into Michigan , Falcon auto- mobiles having a value in excess of $150,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated that Salesmen's Guild of America, herein called the Union, is a labor 'organization within the meaning of Section 2(5) of the Act. III. THE ISSUE Whether Respondent discharged or refused to hire Ernest Felice in violation of Section 8(a) (3) and' (1) of the Act? The complaint does not allege any independent Section 8(a) (1) violations. It is undisputed that Phillip Felice was discharged or refused employment by Respondent because Respondent was of the opinion that it would create a personnel problem if it employed him and refused to employ his father, Ernest Felice. There- fore the case of Phillip Felice has merit only if it is found that his father was discriminated against in violation of Section 8(a)(3) of the Act.3 IV. THE UNFAIR LABOR PRACTICES A. During the Owens, Inc., ownership The Union started to organize the Owens, Inc., salesmen in July 19'60. At the request of the Union's president, Ernest Felice became very active in the Union's organizational efforts. When not working at the salesroom he spent a considerable amount of his time in organizing. It was estimated that he had solicited the salesmen of approximately a hundred automobile dealerships in the area. His activities in this regard were known to Cecil A. Owens (herein called Owens), president, and William M. Paulson, new-car sales manager, of Owens, Inc 4 Owens testified that he first heard about the Union's efforts to organize his em- ployees about 4 months before the sale to Respondent; and he began the sale negotiations with Respondent approximately 30 days before the sale was consum- mated on September 22.5 About a week before the sale there appeared a news article in a trade journal. It noted that the Union had petitioned the Board for certification as collective- bargaining agent for the new and used car salesmen employed by Owens, Inc. The petition had been filed on August 25 (Case No. 7-RC-4595, not published in NLRB volumes). Referring to the article, John A. McAuliffe (herein called McAuliffe), president of Respondent, asked Owens about the matter and who was 'active in the Union. Owens named Ernest Felice among others. Owens testified that he had no concern about the petition since, at that time, the sale of the dealership was imminent. He further testified as to subsequent conversations with McAuliffe concerning the Union in general and Ernest Felice in particular. His testimony as to those conversations was uncertain, often contradictory, and expressions of his opinions.6 I do not credit it. McAuliffe admitted talking to Owens about the Union and having a number of conversations with him about the individual employees. This I find to be prudent inquiries by a prospective purchaser of the dealership and not evidence of anti- union animus. Under date of September 16, Owens, Inc., mailed a letter to its employees ter- minating their employment by that corporation at the close of business Septem- ber 17, because "we are going out of business." Further, the letter stated that the purchaser of the business, Respondent, was "currently accepting employment appli- 8 See Birdsboro Steel Foundry & Machine Company, 54 NLRB 1274 ; and Bakersfield Foods Co Inc , 123 NLRB 1130, 1142. ' 'The salesmen for Owens , Inc, were paid on a commission basis 'John A. McAuliffe , president of Respondent , testified that the negotiations began in July e Owens testified that , at the time of the conversations , he was considerably disturbed because of the forced sale and the negotiations attendant thereto JOHN MCAULIFFE FORD, INC. 347 cations." 7 Owens distributed the applications to its employees a few days before the sale. B. Respondent's screening of prospective employees During the negotiations for the sale McAuliffe was given access to the personnel records of the employees of Owens, Inc.; also, the earnings records of the salesmen. In addition McAuliffe discussed the personnel with Owens and his department heads and other persons engaged in the sale of automobiles in the area. On September 17 or 18, McAuliffe decided whom among the employees of Owens, Inc., he would offer employment. He caused a list of these to be posted on various locations on the premises on September 19. Out of 68 of the former employees of Owens who had made application, he offered employment to all but 6. Ernest Felice and his son, Phillip Felice, Charging Parties herein, were among the six. C. The alleged violations of Section 8(a)(3) of the Act Ernest Felice worked for Owens, Inc., from 1954 to 1957, and from February 26, 1959, until Owens, Inc., went out of business Owens considered him one of his top salesmen although his earnings record in 1960 was considerably below that of 1959. McAuliffe wanted high caliber men on his sales staff and in other positions dealing directly with the public. He enlisted the counsel of one Max W. Curtis, who had long experience and many contacts in automobile dealerships, to investigate and help him select his personnel. Curtis advised McAuliffe not to hire Ernest Felice because he was a "fast salesman" and in the opinion of Curtis, McAuliffe would have "to keep constant supervision of him." McAuliffe also had his attorneys con- duct an investigation of Ernest Felice. Having before him the information supplied by these and other sources, McAuliffe exercised his judgment and determined not to hire Ernest Felice "because I did not like his reputation. ... I did not like the time he was spending at the dealership. I did not like, in particular, the criminal background that went back through the years." McAuliffe testified that he did- not hire Phillip Felice "because his name was Felice. . . . I knew I would have to make a change with his father, and I felt it would lust promote a hardship or difficulty with Phil Felice if I hired him after not hiring his father." The decision not to hire the Felices was made by McAuliffe during the week prior to September 19. On -September 19 a meeting of the sales force was called by Respondent which was presided over by Max W. Curtis representing McAuliffe. The purpose of this meeting was to advise the salesmen of the status of the sale negotiations. Ernest Felice testified that during the course of the meeting Curtis said that all salesmen would be hired by McAuliffe for a 90-day probationary period. Curtis denies mak- ing such a statement. In view of the fact that the uncontradicted evidence is that it had been decided, in the preceding week, not to offer employment to certain em- ployees of Owens, Inc., I credit the testimony of Curtis. A few hours after this meeting Sales Manager Paulson told Ernest Felice, "I have to let you and your son go. . I can't give a reason." Felice asked for an audience with McAuliffe which, after some delays, took place about a week later. Ernest Felice asked why he had been discharged. McAuliffe replied that he had not been discharged; but that McAuliffe "had not chosen to hire him . . . he was not the kind of man I wanted in my organization, and that had been my judgment, and that was all I could practically say about it." Phillip Felice was also told by McAuliffe that he "had not chosen to hire him." 8 The General Counsel argues that because McAuliffe, when interviewed by an agent of the Board, did not give all the reasons for Ernest Felice's discharge that he spelled out on the witness stand; and because Ernest Felice was singled out for investigation, this is evidence that the reasons for the failure to hire advanced at the hearing were no more than afterthoughts. I attach no probative value to the ar- gument. I find that McAuliffe was a credible witness. I find that McAuliffe had reason to investigate Ernest Felice; and that the investigation was not motivated in 4 Ernest Felice testified that he did not receive a copy of the letter. It is inconceivable that he did not know about it He did file an application for employment with Respondent. 8 A prospective employer of Phillip Felice testified that he telephoned Respondent's sales manager, Paulson, and asked why Phillip Felice was not employed by Respondent, and Paulson said "his father was union-or the company felt." Paulson admitted that he had received the telephone call but denied that the Union was mentioned I credit the testimony of Paulson. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any respect by antiunion animus. I am further persuaded by the fact that McAuliffe did not hire six former employees of Owens, Inc. Further, I find that the Felices' employment by Owens, Inc., was terminated on September 17; and that Respondent's failure to employ the Felices was not in viola- tion of Section 8(a)(3) and (1) of the Act. Also, that the refusal to employ was an exercise of judgment which was not influenced by any antiunion proclivities on the part of Respondent. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent's failure to hire the Felices was not a violation of Section 8(a) (3) and (1) of the Act as alleged in the complaint. [Recommendations omitted from publication.] Huber, Hunt & Nichols, Inc. and Thomas McAboy, Jr., Charg- ing. Party and International Hod Carriers, Building & Com- mon Laborers Union of America, AFL-CIO, Local No. 70, Party to the Agreement International Hod Carriers, Building & Common Laborers Union of America, AFL-CIO, Local No. 70; Wilmer Kimble, President; Harold Lang, Secretary-Treasurer; Lemard Griffin, Recording Secretary-Steward and Thomas McAboy, Jr., Charg- ing Party and Huber, Hunt & Nichols, Inc., Party to the Agreement. Cases Nos. 15-CA-1795 and 15-C73-487. November 76, 1961 DECISION AND ORDER On March 10, 1961, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaints and recommending that the complaints be dismissed in their entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. 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 McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaints.] 134 NLRB No. 33.