Story Oldsmobile, Inc.

STORY OLDSMOBILE, INC . 1049 required to reestablish its operation as it existed prior to February 19, 1962, if necessary discontinuing the use of trucks since put into use, dismissing employees hired to replace the five employees herein, and terminating the services of independent contractors, if any, used to perform the services performed by these five or any of them. Nothing herein shall be construed, however, as enjoining or prohibiting the Company, after reestablishment of its operation and reinstatement of the dis- criminatees, from thereafter modifying or terminating its operation for any lawfully motivated reason; and nothing herein shall be deemed to require the Company to resume or reinstate its operation beyond the extent necessary to accommodate the reinstatement of the aforementioned employees who accept the Company's offer of reinstatement .6 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. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., Local 247, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire, tenure, and conditions of employment of its employees, thereby discouraging membership in a labor organization, the Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By such discrimination, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 4. 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.] 6 Kelly h Picerne, Inc., 137 NLRB 594. Story Oldsmobile, Inc. and Robert E. Ball. Case No. 7-CA-3729. February 5, 1963 DECISION AND ORDER On November 9, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. 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 Leedom, Fanning, 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. 140 NLRB No. 95. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board hereby adopts as its Order the Recommended Order of the Trial Examiner.' I For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co, 138 NLRB 716, Member Leedom would not award Interest on backpay in this case. The Appendix attached to the Intermediate Report Is hereby modified by adding the following Immediately below the signature line at the bottom of the notice: NOTE-We will notify Robert E. Ball if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application In accordance with the Selective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et Iseq., herein called the Act. On May 18, 1962, a charge in this proceeding was filed by Robert E. Ball, an individual, against Story Oldsmobile, Inc., the Respondent herein. Thereafter, on June 28, 1962, the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Seventh Region, issued a com- plaint and notice of hearing setting forth certain alleged violations of the Act by the Respondent, in that on or about February 5, 1962, and continuing to the date of the issuance of the complaint, the Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act; first, by its agent, Robert Loe, threatening its employees with discharge or other reprisals because they engaged in union activity; and second, by terminating the employment of Robert E. Ball on or about February 5, 1962, and at all times thereafter failing to reinstate him because of his membership in, sympathy for, and activities on behalf of the Union. The Respondent filed an answer to the complaint, denying that it has engaged in or is engaging in unfair labor practices, as alleged, denying that Loe threatened the employees as alleged, and asserting that Ball was laid off for lack of work on February 8, 1962, was still on the seniority list until March 16, 1962, when he was terminated "for acts detrimental to the employer and/or his product." Pursuant to notice this case came on to be heard before Trial Examiner Arthur E. Reyman at Lansing, Michigan, on September 12, 1962. The hearing was recessed on that day until September 26, 1962, on which day the hearing was resumed and closed. At the hearing, all parties were represented by counsel and each was afforded opportunity to call, examine and cross-examine witnesses, and to participate fully, to argue orally upon the record, and to submit proposed findings or conclusions, or both. Upon the entire record in the case, and from my observation of the witnesses, T make the following: FINDINGS OF FACT I. THE BUSINESS OF STORY OLDSMOBILE, INC. The Respondent at all times material herein has maintained an office and place of business at 3165 East Michigan Avenue, in the city of Lansing, State of Michigan, herein called the Lansing place of business, where it has been at all such times engaged in the retail sale, distribution, and service of automobiles and related products. During the year ending December 31, 1961, which period is representative of its operation during the times material herein, the Respondent, in the course and conduct of its business operations, sold, distributed, and serviced at its Lansing place of business, automobiles valued in excess of $1 million, of which automobiles valued in excess of $25,000 were shipped from said place of business directly to points located outside of the State of Michigan. During said representative period ending December 31, 1961, the Respondent in the course and conduct of its business, pur- chased and caused to be transported and delivered at its Lansing place of business, parts, accessories, and other goods and materials valued in excess of $50 000, of which goods and materials valued in excess of $50.000 were transported and delivered to its place of business in Lansing, Michigan, directly from points located outside the State of Michigan. STORY OLDSMOBII,E, INC. 1051 The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 580, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Willard Hodge, a representative of Local 580 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. (hereinafter sometimes called the Union or Local 580) on February 7, 1962,1 directed a letter to the Respondent claiming to represent the majority of the employees at Story Oldsmobile, at its Lansing place of business, in the shop, basing its claim on the number of authorization cards signed by employees of the Respondent authorizing Local 580 to represent them in negotiating with their employer. Thereafter, the Union by Hodge and Karl Story, Respondent's president, having agreed upon an appropriate unit, a consent election was conducted by the Regional Director for the Seventh Region on March 23. At the election the right of Ball to vote was challenged by the employer on the ground that he had been discharged prior to the eligibility date for qualified employees and the date of the election. The chal- lenge was upheld.2 The letter sent by Hodge to the Company was mailed on February 7, and it is conceded that the letter was received by the Respondent on February 8. The Employment, Union Activities, and Termination of the Employment of Ball Robert E. Ball was employed as a service salesman for the Respondent during the last week of November 1961. Ball had worked for the Company previously for about a year as a used-car salesman. Subsequently, when elsewhere employed, he spoke several times to Stanford Shaffer, service manager, about returning to work for the Company. After that, he received a telephone call from Shaffer, met him that afternoon, and it was agreed that Ball, after giving notice to his then employer, would start to work as a service salesman for Story Oldsmobile. Ball testified that at the time he was employed, Shaffer described the job to him and, knowing that Ball had worked as a used-car salesman and also as a mechanic, had decided that the combination of the two would be good for and help Ball in his position as service salesman. Ball was paid on a commission basis, i.e., 7 percent of the dollar volume of orders taken by him for services and repairs. His duties essentially were not complicated. At the Respondent's place of business there are a number of lanes where customers drive their cars in and where they are taken care of by service salesmen. The serv- ice salesman listens to the customer's description of work to be done, makes sug- gestions, and occasionally suggests additional service or repair. The service salesman writes up the order, and the job is then turned over to the proper mechanic or other serviceman for the work to be done. The lanes within the area where customers drive their cars in for service are separated from the other departments in the service parts of the employer's business, as well as from the salesrooms. After about 6 weeks of employment, Ball took the place of the man who ordi- narily opened the shop at 7 o'clock in the morning, which meant that he opened the shop and kept it open until 8 o'clock by himself, when other employees came to 'Unless otherwise specifically stated , the dates hereinafter mentioned are for the year 1962. 2 At the hearing counsel for the General Counsel made the following comment: In regard to Robert Ball I think the Trial Examiner can probably take official notice of the fact that in an "R" Case proceeding it is not the policy of the Board to resolve an unfair labor practice, and they inquire no further than whether the particular person has any expectancy of recall in the mind of the Company Counsel for the Respondent read from the formal determination In Case No 7-RC-5206 as follows: Since Ball had no reasonable expectancy of recall In the foreseeable future on the date of the election, it Is the conclusion of the undersigned [the Regional Director] Ball is not eligible to vote pursuant to the Consent Election Agreement, and, accord- ingly, sustain the challenge of his ballot. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. Ball testified that he was complimented several times by Shaffer and by Robert E. Loe , the shop foreman, concerning the satisfactory way he was perform- ing his duties, and that at one time Shaffer made a statement in the presence of a group of men to the effect "You give Ball six months and he will be the best service salesman we ever had " There is testimony to the effect that Ball's earnings were high at all times . He testified that no complaint had been made to him concerning his work except for breaking a no-smoking rule and for being away from his station. Sometime during the first part of January 1962, as a result of a conversation with a number of fellow employees in a local tavern located near the Company 's premises in Lansing, Ball became active in an effort to organize the shop employees into Local 580. Ball related that the employees in the group were discussing various grievances they had relating to their employment ; that he told them that if they did not like the conditions they were talking about , sitting around complaining about it was doing no good; that subsequently , the discussion turned to the Union and the employees "told me if I knew someone at the Union and if this could answer the problem would I call them, and I said that if the fellows would stick with me on it, that I would, but I wasn't going to get involved in something if I didn't have any support." Sometime later, in about the first week in January, Ball got in touch with Willard Hodge, an officer of Local 580 , and arranged to meet him at lunch; he and two other employees did meet with Hodge and discussed the possibility of obtaining the kind of support from the men in the shop they would want if an attempt were made to organize the shop, and related matters . Ball said that he and his two fellow em- ployees "went back and we talked around and we felt we did have support we needed and we call him [Hodge] and told him and we met him again ." Another luncheon meeting with Hodge was arranged , when Ball was provided with blank authorization cards. The cards so furnished each read: AUTHORIZATION FOR REPRESENTATION I, the undersigned , employed by------------------------ believing that (Name of firm) the working conditions of all employees may best be improved through or- ganization, hereby authorize Local Union No. 580 to represent me and, in my behalf, to hold elections , negotiate all agreements as to hours of labor, wages and other employment conditions. It being further understood , that my name on this Authorization Card shall, at all times be held strictly confidential. Department -------------------- Date---------------- Signature-------------------------- ----------------- Address------------------------ Phone-------------- Ball thereafter, during working hours, solicited signatures on the authorization cards and obtained some 36 or 38 signed cards, he said, out of 55 or 60 employees, all employed in the service department units. He obtained these signatures on February 5 and 6 and handed them over to Hodge on the morning of February 7. Hodge immediately prepared and sent the letter of February 7, referred to above, to the Company. Early during the forenoon of February 8, Ball was in the back part of the shop (referred to as unit repair ) talking to Gene Ice, in charge of that unit , concerning a carburetor sold by Ball to a customer when Karl Story , president of the Re- spondent, asked Ball what he was doing back there , told him that he had no busi- ness back there, that his job was up in the front, and told Ball to get back where he belonged and , said Ball, "he cussed me out all the way up through there and there were other fellows in the shop that I am sure heard that." Ball said that Story told him that "I had caused enough damn grief around there already ." Ball returned to the service writer's desk , his station, and while there writing a report order Shaffer called and asked Ball to come into his office . This was about 11 o'clock in the morning. Referring to the conversation with Shaffer in the latter 's office at this time, Ball testified: I went into his office, and as I went in he started telling me what a good job I had been doing, and that he liked me very well, and that this was not through his decision. And, if I remember correctly , the way he put it, he said, "I just got a call from the Great White Castle" he said, "and you've got to go," and I said, "are you firing me, Stan?" and he said, "Like I said, you have got to go." He said, "I don't want to fire you." He said, "I will lay you off, and you can at least draw your unemployment," and I said, "What are you laying me off for?", and then he started telling me how work had slowed down , and I told STORY OLDSMOBILE, I NC. 1053 him that I hadn't noticed any dropoff in the work, but I was laid off for lack of work. He filled out the layoff slip, and I asked him if I would be recalled, and he told me-I don't remember his exact words but something about "After things get straightened out around here I will try to get you back." The reason given in the layoff slip for the termination of Ball was "Lack of work." By the term Great White Castle, Shaffer meant Mr. Story's office On a day when Ball was obtaining signatures to authorization cards he said his foreman, Loe, told him that he had heard what was going on "and if [ was caught doing this I would be fired." Loe testified, "I told him if I ever caught him he would be subject to dismissal." Asked what he meant by being caught, Loe said that he meant any annoying or stirring up of the workers. Loe testified that he found Ball's work satisfactory. Loe also said that after Ball was laid off, Shaffer told him that Ball should not have been laid off, "It was the wrong time." Shortly after February 8, the Company employed two service salesmen. It was stipulated between counsel at the hearing, on the basis of company records, that Earl Schmidt was employed on February 23, 1962, as a service salesman trainee and that Lawrence G. Horton was employed as a service salesman on March 21, and that both of these men were hired and did work at their respective jobs after the dates mentioned. During the time of the layoff or discharge of Ball, Shaffer and Loe took care of the work formerly performed by Ball. On cross-examination, Ball freely admitted that: He knew at the time he was circulating throughout the service and repair parts of the shop that management would not look with favor upon his going around talking to other people as long as it did not have anything to do with his work; he knew that he was taking his own time as service salesman and the time of other employees of Story in connection with his and their union interests and activities; and on January 5 and 6 the time spent in obtaining signatures to cards was perhaps 2 hours each day. He denied that any employee objected to his talking to them while they were at work, denied that at any time before, on, or after March 16 (the day the Company contends he was finally terminated) was he ever requested to leave the property; that during these times he never persisted in talking with anybody and, for example, recalled that one Charles Williams, an employee, told him he was not interested in the Union.3 On two occasions after his February 8 layoff, Ball testified that he came back at least twice during working hours and talked to employees; that these two occasions were when men came to him while he was there-he did not go to the employees. On the other three or four times when he talked to the employees later in the evening, he said he "did not go to them and talk to them, though, because I did not feel I was welcome in the shop at that time; they came to me." Dale Cramner was transferred from University Oldsmobile to the place of business of the Respondent, Story Oldsmobile, Inc., in the first part of December 1961, where he worked first on quick service and then on the hydromatic rack, his work consisting of the overhauling of automatic transmissions. He testified that he signed an authorization card at the request of Ball while at work on February 8, and that he saw Ball giving cards to other employees, substantiating Ball's testimony that Ball made no effort to conceal his efforts to obtain signatures to authorization cards on those 2 days. Cramner testified to a conversation he had with Loe, shop foreman: S Regarding any conversation between Ball and Williams, it must have been after Feb- ruary 8, on the testimony of Williams himself, and not on January 5 or 6 Sometime after February 8, however, according to Williams, Ball approached him, talked to him about union activities, and Williams said he told him he was busy and did not want to talk to him, and that Ball almost immediately walked away Williams testified: Q What did he do, Mr. Williams, that prompted you to call Mr. [Vice President) Hallier and tell him that he was interfering with your work 9 A. Well, Mr. Ball approached me at that particular time in the afternoon and I had a couple or three cars if I'm not mistaken I was working on a car , anyway-and he approached me and asked something about concerning this union conversation going on, and I told him I was busy, and he walked-and then about 5 or 6 minutes, I imagine, he walked away. And then I went back to work. Williams recalled that this incident occurred during the week of the election. He said Ball had not asked him to sign a union card. 4 The Company disputed that Loe was a supervisor within the meaning of the Act dur- ing the times material herein Testimony clearly shows, including the testimony of Loe himself, that he was a supervisor. He was in complete charge as shop foreman of the 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We were out road testing and Bud asked me what I thought of this union and I told him there was a lot of fellows dissatisfied there, and that's why a lot of them inquired about getting a labor union in there, and Mr. Loe says, "Well, you know if you have anything to do with that, that you can lose your job over it," and I told him that I realized that fact. Cramner testified to overhearing a part of the conversation when President Story found Ball in unit repair on February 8: The only part of the conversation I heard was when Mr. Story said, you have caused me enough damned grief and get your back on the floor. That's what I heard him say and that's about all of the conversation I did hear him say. Cramner was an observer for the election held on March 23. He related that Shaffer had asked him how the count came out and "I told him how the count came out and he said, `Well, if the Union goes through, there will be a lot of changes around here,' and that's all he said." Cramner testified that he took a 2-week vaca- tion in March, and that when he came back at the end of March his employment was terminated. The Company's service director, Mr. Spangler, instructed Shaffer and Loe to spend considerably more time on the floor than they had before the layoff of Ball. Before then, Shaffer did very little service salesman work but afterward devoted about 80 percent of his time to that work. As for himself, Loe said he spent most of his time doing service salesman work unless, as he put it, "one of the mechanics would have a problem or I would be called off." Loe said that not more than 2 or 3 days after the election, Spangler asked Loe if he knew who had voted for the Union, that at the time Spangler had a list of the names of all the mechanics with checkmarks on it indicating who of the men had or had not voted for the Union; that be told Spangler he did not know how the men had voted; that while he was there Shaffer came in and was asked the same question "And Stan disagreed with some of the checkmarks." 5 It was during the course of this conversation, Loe said, that Spangler remarked that they "should have let Dale Cramner go instead." The testimony of Charles Hallier, vice president of Story Oldsmobile, Inc., and administrative assistant to the president, Karl Story, is summarized, as follows: Mr. Hallier has been employed by the Respondent for some 7 years and has known Ball since the time of his previous employment beginning in 1960 as a used-car salesman, and terminating after about a year. Approximately 3 weeks prior to the reemployment of Ball on about November 25, 1961, he was approached by Shaffer, who suggested the hiring of Ball. At the time, there had been discussion as to whether another service salesman should be hired Hallier opposed the hiring of Ball on the basis of his previous knowledge and opinion of Ball's character, he said, and further he felt that Shaffer was interviewing Ball for a job which required more technical knowledge and skill than, in his opinion, Ball could exercise properly. He said, in part: Before Mr. Ball was hired Mr. Shaffer came to me on three occasions and asked to reconsider my consenting to the rehiring of Mr. Ball, and on all three occasions I did not give my consent to him being hired. At the time he was hired and Mr. Shaffer advised me that he was our employee, I asked him if he carefully went over the probation period with Mr. Ball outlining to him in detail what was expected of him, and what was our policy toward a probation department under his supervision with Shaffer as his immediate superior He said that he fired at least one man on his own responsibility and generally supervised the quality and quantity and the type of work done by the men under his direct supervision and issued instructions to them, requiring discretion, as to the manner in which work was to be done Loe, in April, at his request became a transmission mechanic on a commission basis of earnings, asking for the change from shop foreman because he felt he could make more money as a mechanic He testified that he makes more money in his present capacity and spends many less hours at work 6 Ball had voted separately on a challenged ballot : Cramner had acted as observer for the Union at the election. The General Counsel stated that he offered the testimony of Loe regarding this conversation in Spangler's office as showing a continuing animosity toward those employees who favored the Union. STORY OLDSMOBILE, INC. 1055 employee, or a new employee, and he advised me that that had been gone over very carefully with him, and very thoroughly explained to him.6 Without identification, or without naming names, Hallier testified that some 8 to 10 employees had been terminated during the year 1962 because they were found not to be satisfactory during the probationary period. He said that when Ball first re- ported for work he wished him well and told him that he hoped everything would work out for him and he would last through the probationary period; and that Ball thanked him and told him that he would try to become the best employee the Com- pany ever had. Hallier also testified that certain complaints regarding customer relations came to his attention; that such complaints were made against Ball of more frequency if not gravity than customary among those received regarding the service salesmen; that he had cautioned Ball about these complaints several times, and advised him concerning how customers should be treated and handled, the way they should be talked to and the necessity for giving correct estimates of the amount of repairs. He said he directed Shaffer to take up the question of Ball's reported deficiencies. He said that Ball constantly violated the no-smoking rule on the service line and had a habit of smoking cigars which left an offensive odor within customers' automobiles after Ball had been inside the car.7 He said that he had had several complaints about the way in which Ball greeted customers, several complaints about his not stepping up and taking care of a customer when the latter drove into the area being serviced, several complaints relative to the estimated cost of repairs, and complaints on the job not being completed as they were supposed to have been. No specific customer was named by Hallier; he said, "I can name some but I won't." He said they had complaints from mechanics that Ball did not write up the repair orders as specifically as he should have, that: We do not have the time nor did he have the time nor was he permitted to have the time to tear down an engine and find out if the motor was missing because of a piston being broken or something wrong with a valve, but if a customer came in and said they had a rattle in the car he should determine where the rattle is and what is causing the rattle, to the best of his knowledge. He could cite no specific times or instances of these complaints brought to him about Ball or discussing them with the latter. He said that Ball frequently just wandered off his jobsite or perhaps he was absent in connection with the performance of his duty. In connection with the times he said he discussed the absence of Ball from his station with Ball, he said that sometimes Ball would say he was taking a break and other times he would say he was following up on a car in another area which he had every right to do. His attention having been drawn to the layoff slip handed to Ball by Shaffer on February 8, and his attention drawn to the notation "lack of work" as the reason for the layoff, Hallier said that it was company policy to mark "lack of work" in 0 During the course of his testimony, Vice President Hallier identified a document which expressed company policy, which, he said , had been in effect during the 7 years he had been employed by the Company; and had been discussed with each new employee at the time that person was employed. The document reads as follows: COMPANY POLICY 1 Employees will be considered as probationary employees for the first 90 days of their employment (this means 90 days' work). 2. Employees may be started at 10 cents per hour less than the rate of the job. If the employee progresses, he will be increased 5 cents after 30 days and 5 cents after 60 days. 3. Employees may be recalled , if layoff occurs, during the probationary period and the total time worked credited toward their 90 days probationary period 4 Extension of the 90 days may be extended, if requested by the supervisor and the employee will be notified. ----------------------------------------- (KARL STORY, President) Ball, as well as Cramner, testified that they had never heard of a 90-day probationary period and did not know of any published rules or regulations or instructions issued or in effect. 7 Apparently there was a no-smoking rule, although the testimony reflects the fact that it was frequently breached , not only by Ball, but by others. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case of layoffs, so an employee would be enabled to participate in unemployment compensation benefits. At the hearing, Hallier testified that the time Ball was handed his layoff slip the Company had no plan for his reemployment and that there was no intention of having him back.8 Halher testified, too, that late in February or in March other employees called him on the telephone and told him that Ball was bothering them or interfering with them; that at this time he did not know that Ball was soliciting authorization cards. He left hanging in air the implied question as to what Ball was saying to the employees when he was bothering them. He denied knowing that Ball was engaged in any union activity; did not know on March 16 that Ball had been active in the Union. I cannot reconcile these various statements and come up witha finding that Hallier did not during early March or on February 8 know that Ball was active and working actively on behalf of the Union. I am further constrained to doubt Hallier's com- plete frankness or credibility by the following testimony appearing in the record, given by him on cross-examination: Q. (By Mr. BIXLER) You testified that you did not object to Mr. Ball receiv- ing unemployment compensation. As a matter of fact, the Company did object to Mr Ball receiving unemployment compensation, didn't they? A. Not as far as I know. Q. You never wrote any letter to the compensation commission? A. I did on March 16, 1962. Q. And what did that letter state? A That Mr. Ball was no longer in a layoff position with Story Oldsmobile, and he had been discharged. Q. And discharged for cause? A. The exact contents I can't recall. The language of the letter. Q. And the reason you wrote this? A. So they would have a file on former employees of ours. Q. You are aware of the law that if a man is discharged for cause he does not receive unemployment compensation as a matter of automatic course? A. I am aware of the fact that regardless of what you put on paper as to the reason for a man being discharged, it does not necessarily constitute whether they are entitled to benefits. Vice President Hallier also testified that President Story had decided because of a slowdown in business in January there had to be layoffs and that three persons other than Ball were laid off at the time he was. This is in support of an allegation in paragraph 10 of the answer, filed by Hallier, that "other employees laid off at the same time as Robert E. Ball were given the same right to vote at the election." 9 Cliff Walker and Donald Bough were the employees referred to; that Walker was 8In the answer to the complaint herein signed by Vice President Hallier, he stated (paragraph 9 of the answer): Robert E Ball was laid o)# for lack of work on February 8, 1962 He was still on the seniority list until March 16, 1962 The unemployment records will show that to be a fact. Robert E. Ball was terminated on March 16, 1962, for acts detri- mental to the Employer and/or his product The Company and Local 580, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America agreed to a consent election in the early part of March 1962. The Union at no time charged the Employer with acts contrary to the Act Nor was Robert E. Ball, during the period of date of agreement on a consent election and March 18, guilty of interfering with, coercing employees while in the performance of their duties. Robert E. Ball was asked to leave employees alone, told he had no business on the premises and was further told that further interfering with other employees during working hours, on the Company's premises would result in his discharge. He did not heed the warning and did engage in these acts, resulting in his discharge on March 18. The election was held on March 23, 1962, and Robert E Ball did vote and his vote was challenged because in the opinion of the Company he was not en- titled to vote, he was not an employee on March 23, 1962, and as his discharge was for goad and legitimate reasons, serious enough for discharge. The election in a tie made It necessary for the Board to Investigate and upon completion of the investigation, the Company was notified that Robert E. Ball's vote would not be counted. [Emphasis supplied] e The Respondent seems to take the position herein that because Ball's ballot was challenged in the election, and further because the Regional Director determined the challenge to be valid, ergo, Ball's discharge had been proven justified. This defense is specious. It is too plain for anything but statement that a representation case determina- STORY OLDSMOBILE, INC. 1057 fired is not contradicted by Hallier, who said that he did not "personally know if Walker was laid off or discharged." The answer says, relating to Ball, in paragraph 10, "that he [Ball] was given fair warning, but continued such action, resulting in the police being called, prior to the discharge." I find trouble in attaching any significance to this episode as a defense to the allegations of the complaint. The testimony is that an employee telephoned Hallier, while Hallier was off the premises, and said that Ball was talking to the men in the service area of the Respondent's place of business. Hallier said he called the police and reported the fact and asked the police to find out whether or not there was any disturbance. Ball himself apparently did not know that the police had been called to check on him as to whether he was inciting any unrest or causing a disturbance and certainly no disturbance did occur. Richard Hodges, sales manager, testified that at a time after Ball was laid off on February 8 (between March 1 and 10), he observed Ball talking to a number of men, employees in the new-car get-ready department; that he, Hodges, instructed him to leave these men alone and asked him to leave the premises. He said that he had no knowledge at that time of what Ball was talking about to the employees. However, he said that about 2 days later, Charles Williams told him what Ball had been talking about-"in favor of the Union." Hodges then brought this matter to the attention of Hallier. He testified that he had heard rumors of union activity, principally through one Carl Klein, who quit, and at the time was asked by Hodges his reason; Klein replied that he would not work in a shop where there was a union. This conversation was reported to Story by Hodges. Stanford Shaffer, service superintendent, supervised some 50 men in all of the departments in the service part of Respondent's business at this shop. He said that he had full and complete authority delegated to him to hire and fire or make layoffs of employees, according to his best judgment; that at times he might confer with either Vice President Hallier or President Story, but ordinarily they did not recommend to or advise him in connection with the employment of personnel in the service departments. He said that generally speaking Loe, the shop foreman, had authority to discipline and reprimand, and in the absence of Shaffer was in complete charge of the departments in the place of Shaffer, with the same right to hire and fire as Shaffer himself had. He recalled that at one time Loe fired a man during a time when Shaffer was on vacation. Shaffer said that before Ball was hired, they had talked two or three times and Ball had requested to be hired to fill a job vacancy then open for a service salesman; that he did hire Ball on or about November 21, 1961, and at the time of hiring he said he did point out to Ball, as was his invariable practice, that he was being hired subject to a 90-day probationary period; and that during this period if Ball decided to leave, there would be no hard feelings and, similarly, if Shaffer decided to dispense with the use of Ball's services during or at the end of the 90-day probationary period, Ball would leave without hard feelings. Shaffer said further that before finally hiring Ball, he had talked to Hallier about the advisability of putting Ball on the job, and Hallier questioned whether Ball would "make a man." This witness testified to several reprimands given by him to Ball principally for violation of the no-smoking rule, for reports of discourtesies to customers, and for taking too much time away from his station. To the question as to whether or not he had ever complimented Ball on the work he was doing, or had made any statements in regard to Ball's work to other employees, he said that he might from time to time when he was asked about Ball principally by other service salesmen, have told them that Ball would make a good man if he was given sufficient time on the job. He emphasized that it was his own decision to lay Ball off although he had, before the actual notice of layoff, dis- cussed the matter with Hallier. As to the actual layoff itself, he said that he had told Ball that he did not think he was doing the job, that he would give him a layoff slip so he could draw unemployment compensation until he was able to find another job, and that Ball thanked him for giving him a layoff slip instead of a discharge-for- cause slip. Regarding knowledge of union organizing efforts conducted in the shop, prin- cipally by Ball, Shaffer denied having any direct knowledge, except for the Klein incident, of any active solicitation for membership in the Union or for sig,19tures to authorization cards, while he was in the shop He said that he was told by an employee in the quick service department on or around February 8 that the Company would receive a letter from the Union. He related that Story had asked him how he tion is not dispositive in an unfair labor practice proceeding under Section 10(b) of the Act. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would feel about having a union in the shop, that he had replied that it would make no difference to him, and that Story had indicated that if the Union did come in he would have no objection to dealing with it as the representative of the employees. To me it seems incomprehensible that top management did not, at all times after the receipt of the letter from the Union on February 8, have full knowledge that Ball had engaged in and had been partially successful in organizing or at least in effecting a concerted activity among the employees in regard to union affiliation and represen- tation of them by the Union. On the facts, it is plainly apparent that the discharge of Ball was contrived to get rid of him because of his union activity. Plainly, company management was aware that he solicited signatures of employees when he had them sign authorization cards on February 5 and 6. Loe saw Ball with a bundle of cards, as he phrased it, when Ball was soliciting signatures; Shaffer knew about it, having been informed by Loe and, presumably, having ordinary powers of observation and being present and on duty, so far as the record shows, at the times when Ball was soliciting signatures from the other employees in the service and repair departments. To say that Ball was fired because of a slowdown in business, as reported by Hallier, obviously would be untrue, since Shaffer, the shop superintendent, and Loe, the shop foreman, spent the greater part of their time after the discharge of Ball doing the work previously done by him, until one and then another service salesman was hired. President Story did not testify at the hearing. It was shown through the testimony principally of Cramner, that his appearance on the morning of February 8 in the repair shop, when he so bruskly ordered Ball back to his station in the service depart- ment, was unusual in two respects-first he very seldom went back in that department, and second, he very seldom spoke with a force and vehemence and a loudness with which he addressed Ball on that occasion. Certainly, no time was lost in getting rid of Ball on February 8, for so-called lack of work. On February 5 and 6 Ball had obtained the necessary majority as shown by authorization cards of employees in the claim unit; on February 7 the Union in writing requested an election ; and on the morning of February 8 Ball was fired. Reasons given as to his unsatisfactory previous service are completely rebutted. His earnings, his quite apparent ability to handle the job, and lack of any prior real complaint against his work, show clearly that he was not fired for the reasons given by Hallier-that is, smoking on the job, discourteous treatment of customers, and the other things mentioned by Hallier. Testimony of complimentary remarks made to Ball by Shaffer and the lack of any real evidence of complaints by Shaffer, Loe, or Hallier against him indicate clearly to me that he was discharged, not for lack of work, not for invasion of company rights, or for anything other than his interest in and his activities on behalf of the Union and his furthering of concerted activity on the part of other employees toward attaining recognition of the Union as their bargaining representative. The most serious charge asserted against Ball in con- nection with his employment is smoking on the job, and it readily was conceded that other employees smoked and that the rule was observed more in the breach than in the observance thereof. Therefore I find that by the layoff (which was an actual discharge) of Ball on February 8, and the failure to reinstate him to his position since that time the Re- spondent has engaged in and is engaging in a violation of Section 8(a)(3) and (1) of the Act; and that by the interrogation of Cramner by Loe, as described above, the employer has interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through their representative of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, in violation of Section 7 of the Act. In the absence of any claim or showing of a valid no-solicitation rule, Ball's activities were protected activities W T. Grant Company, 136 NLRB 152; Revere Camera Co. V. N L.R B., 304 F. 2d 162, 165 (C.A. 7). As to whether Shaffer did or did not advise Ball when the latter was hired of the 90-day probationary period, the fact remained that the printed statement of policy apparently was kept in a desk drawer, and not posted, although, as stated by Hallier, it was "available to employees " Although Shaffer says he very carefully advised Ball that he was being taken on as a probationary employee, I am not convinced that much emphasis was placed on the statement, if made, or that Ball was shown a copy of the written statement. Nor do I think that a violation of Section 8(a)(3) STORY OLDSMOBILE, INC. 1059 such as I find occurred in connection with Ball, is subordinate to an implied right of the employer to invoke a company rule to cloak such a violation with immunity. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent offer employee Robert E. Ball immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for ,any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of offer of reinstatement, and in a manner consistent with Board policies set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, according to Isis Plumbing & Heating Co., 138 NLRB 716. It further will be recommended that the Respondent be ordered to cease and desist from discouraging membership of its employees in Local 580, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, or in any manner interfere with, restrain, or coerce its employees in the exercise of their rights to self-organization, to form, join, or assist said labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or 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 guaranteed in Section 7 thereof. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent, Story Oldsmobile, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 580, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind., is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Robert E. Ball, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By engaging in the conduct set forth under section III, above, Respondent inter- fered with, restrained, and coerced its employees and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the whole record herein, it is recommended that the Board, in order to effectuate the purposes of the Act, enter an order against the Respondent, Story Oldsmobile, Inc , its officers, agents, successors, and assigns, to: 1. Cease and desist from discouraging membership of its employees in Local 580, International Brotherhood of Teamsters, Chauffeurs, Warehousemen- and Helpers 681-402-63-vol. 140-68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of America, Ind., or any other labor organization, or in any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist said labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all 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, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Robert E. Ball immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due and the right of employment under the terms of this Intermediate Report. (c) Post at its place of business in Lansing, Michigan, copies of the attached notice marked "Appendix." 10 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 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for the Seventh Region, in writing, within 10 days from the date of this Intermediate Report, what steps the Respondent has taken to comply herewith.ii 10 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." n In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we notify our employees that: WE WILL NOT discourage membership of our employees in Local 580, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, or in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- ,organization, to form, join, or assist said labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right might be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as guaranteed in Section 7 thereof. WE WILL offer Robert E. Ball immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other SINGER SEWING MACHINE COMPANY 1061 rights and privileges previously enjoyed , and further, will make whole Robert E. Ball for any loss of pay he may have suffered by reason of the discrimination against him. STORY OLDSMOBILE, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not .be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 501 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. Wood- ward 3-9330, if they have any question concerning this notice or compliance with its provisions. Singer Sewing Machine Company and Retail, Wholesale and Department Store Union, Local 101, AFL-CIO. Case No. 6-CA-2569. February 5, 1963 DECISION AND ORDER On October 26, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 attached Intermediate Report. Thereafter, the Respondent 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 [Members Leedom, Fanning, 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 Inter- mediate Report and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER Upon a charge filed August 3, 1962,1 a complaint issued August 17, and an answer filed August 23, this case (which involves Respondent's attack upon a certification as allegedly controlled by "extent of organization ") was heard by Trial Examiner Frederick U. Reel at Pittsburgh, Pennsylvania, on October 4. At the conclusion 1 All dates herein refer to 1962 unless otherwise specified. 140 NLRB No. 97.