Graham Ford, Inc.

GRAHAM FORD, INC. Graham Ford, Inc. and Capital District Automobile Salesmen's Association. Case 3-CA-3296 June 26, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 16, 1968, Trial Examiner James V. Constantine issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices in violation of the National Labor Rela- tions Act, as amended, and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommenda- tions3 of the Trial Examiner with the modifications noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as herein modified, and hereby orders that Respondent, Graham Ford, Inc., Schenectady, New York, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. ' Respondent takes exception to the exclusion by the Trial Examiner of testimony of certain conversations between Board Chairman Graham and President Helfrich in which they expressed dissatisfaction because the sales force as a whole was not performing as expected by management and offi- cials of the Ford Motor Company . We have considered the Respondent's offer of proof and find that even if admitted into evidence and credited, the 313 result reached, on the record as whole, would not be altered . Although per- haps the better practice would have been to admit the excluded testimony, we find Respondent was not prejudiced by the Trial Examiner 's rejection of the proffered testimony. i Absent exceptions thereto, we adopt pro forma the Trial Examiner's findings of no violations regarding the picture-taking incident and Hel- frich's April 1967 statement to Doin that other employees who sought to form an association or union had "gotten their butts burned pretty badly 11 In his remedy, the Trial Examiner recommended that the employees found to have been unlawfully discharged be made whole from the date of discharge until the date of reinstatement In accord with usual practice, we hereby amend the remedy to require that the dischargees be made whole from the date of discharge until the date of unconditional offer of reinstate- ment The record indicates that nine of the employees have received such unconditional offers 4 We agree with the Trial Examiner 's finding that Respondent 's refusal to bargain with the Union violated Section 8(a)(5) and (1) of the Act An order directing the Respondent to bargain with the Union, upon request, is necessary to remedy the effects of its other unfair labor practices The record clearly shows that the Union represented a majority of the em- ployees in the appropriate unit when the Respondent initiated its course of unfair labor practices aimed at destroying this support Therefore, we shall order the Respondent to bargain , upon request , with the Union both to remedy its violation of Section 8(a)(5) and its violations of Section 8(a)(1) of the Act See Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd. 389 F 2d 565 (C.A 2); Fabricators, Incorporated, 168 NLRB 140, 141 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case instituted against the above-named Respondent, Graham Ford, Inc., pur- suant to Section 10(b) of the National Labor Rela- tions Act, 29 U.S.C. 160(b). It was generated on August 28, 1967, by a charge filed by Capital Dis- trict Automobile Salesmen's Association, the Charging Party. A complaint based on the above-mentioned charge was issued on October 3, 1967, by the General Counsel of the National Labor Relations Board (herein called the Board), through the Re- gional Director for Region 3 (Buffalo, New York). That complaint, as amended at the hearing, in sub- stance alleges that Respondent has violated Section 8(a)(1), (3), and (5), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried, before me at Albany, New York, on January 17 and 18, 1968. All parties were represented at and participated in the hearing, and had full opportunity to adduce evidence, examine and cross-examine witnesses , submit briefs, and offer oral argument. Briefs have been received from Respondent and General Counsel. I hereby correct the transcript at page 52, line 13, by substituting the word "precluding" for the word "permitting." Upon the entire record in this case , including the stipulations of the parties, and from my observation of the witnesses, I make the following: 172 NLRB No. 50 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. AS TO JURISDICTION Respondent, a New York corporation, is engaged at Schenectady, New York, in selling and distribut- ing automobiles "and related products." During the year preceding the issuance of the complaint, it sold and distributed products valued in excess of $500,000 and received goods valued in excess of $50,000 directly from points located outside the State of New York. I find that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Capital District Automobile Salesmen's Associa- tion, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves the following issues: (1) Whether Respondent coercively interrogated employees concerning their union membership, ac- tivities, and desires. (2) Whether Respondent coercively took pic- tures of employees while they were engaged in picketing Respondent. (3) Whether Respondent discharged the follow- ing 10 employees because they joined or assisted the Union or engaged in union and other concerted activities: Ronald Bottieri Joseph Hamilton Leo Chalachanis Milton Hewett John Delaney Richard Nolan Ernest Doin Amedeo Piccolo Thomas Guy David Robideau (4) Whether Respondent lawfully refused to recognize and bargain with the Union. (5) Whether the strike of Respondent's em- ployees begun on August 26, 1967, is an unfair labor practice strike. However, I do not pass on this issue as all striking employees had returned to work by the time the hearing was conducted by me. A. The Discharge of Ernest Doin The automobile agency operated by Respondent was formerly owned and operated by Webster Mo- tors Sales. About October 7, 1966, Webster sold the business to Respondent, which has owned and operated it since that date. That business is designated as the agency or dealership herein. Doin, the Union's president, was hired by Webster Motors on October 17, 1966, as a new- and used-car salesman. He had been a member of the Union since April 1965. About June 1967,1 the Union began to organize the employees of the agency. During this campaign Doin signed a union authorization card. See General Counsel's Exhibit 2(a). He also distributed about five cards to fellow employees in June and July. About August 23 Doin attended a preview show- ing of new Ford cars at the Concord Hotel at Mon- ticello, New York, in the Catskills. Upon arriving there at 3 p.m., he checked into a room at the hotel. About 7 p.m., Respondent's chairman of the board, Eugene D. Graham, spoke to Doin in the hotel's dining room. After mentioning that he heard rumors that a union was being formed at Graham Ford, Graham asked Doin whether this was true. Doin gave a noncommittal answer. Then Graham said that if a union was started at Graham Ford he, Graham, would pull out of Schenectady. Graham's contrary testimony is not credited. On the next day, August 24, Doin attended a meeting conducted by the Ford Motor Company at which it introduced its new 1968 Ford models. Fol- lowing this, about 3 p.m. Doin left the hotel and returned to the agency in Schenectady, arriving there in the late afternoon, but could not com- mence work as the agency was closed. This was unusual, as the agency did not normally close unitl 9 P.M. Upon arriving for work the following day, August 25, Doin was told by General Sales Manager James Neely to proceed to the office of Harold Helfrich, Respondent's president. When Doin went to Hel- frich's office the latter handed Doin a letter (G.C. Exh. 3) dated August 24 and reading, in material part, as follows: Ernest Doin I hereby accept your resignation from Gene Graham Ford , Inc., as per conversation with Mr. Harold Helfrich, President of Gene Graham Ford, Inc., as you stated at 11:30 p.m. the 23rd day of August at the Concord Hotel, N.Y. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT However, Doin had not resigned; so he refused to accept the letter. Thereupon Helfrich said that Doin was fired anyway. At this point Doin left the premises and went to his attorney's office. ' All dates mentioned hereafter refer to 1967 except where otherwise ex- pressly noted GRAHAM FORD, INC. 315 After talking to his attorney, Doin on the same day, August 25, returned to the agency with authorization cards signed by 10 of Respondent's salesmen. It is undisputed that an appropriate unit, agreed upon by the parties at the hearing , is com- posed of 14 salesmen . Handing these 10 cards to President Helfrich , Doin gave Helfrich 24 hours to bargain with the Union over wages, hours, "and so forth." Placing the cards in an envelope , Helfrich replied that he would turn them over to his attor- ney. Thereupon , Doin left. However, at no time since has anyone on behalf of Respondent commu- nicated with Doin concerning the request for recog- nition. "Direct evidence of a purpose to violate the statute is rarely obtainable" in connection with an employee's discharge. Hartsell Mills v. N.L.R.B., 111 F.2d 291 , 293 (C.A. 4). It is therefore necessa- ry to scan the record to ascertain the true reason behind an employee's release from employment. Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 50. It is my opinion, and I find, that Doin did not resign. This is because I credit his testimony that he did not resign. Further, I find that he was discharged, and that he was dismissed for being a member and officer of the Union and for activity on behalf of the Union . This ultimate finding is based on the entire record and the following which I find as facts: 1. Doin openly espoused the Union, actively sol- icited members on its behalf, and served as its pre- sident. "Obviously the discharge of a leading union advocate is a most effective method of undermining a union." N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5). 2. Respondent was actually aware of Doin's union activity. I do not credit Respondent 's contra- ry evidence. In any event I infer knowledge of such activity from the fact, which I find, that Respon- dent's agency is a small plant . Angwell Curtain Co., Inc. v. N.L.R.B., 192 F.2d 899 , 903 (C.A. 7); New French Benzol Cleaners and Laundry, Inc., 139 NLRB 1176, 1179, fn. 10; N.L.R.B. v . Joseph An- tell, Inc., 358 F.2d 880, 883 (C.A. 1). But see Dubin-Haskell Lining Corp. v. N.L.R.B., 375 F.2d 568, 574, where the Court of Appeals for the Fourth Circuit casts serious doubt on the validity of the Board's small plant rule. 3. Doin was abruptly discharged without prior warning or notice. "The abruptness of a discharge and its timing are persuasive evidence as to motiva- tion." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U. S. 829; N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205, 208 (C.A. 2). Doin was discharged shortly after Respondent learned of his union activity. 4. The manner of discharge is significant. Thus, I find that Doin had not only not been reprimanded or warned for any alleged poor sales performance, but he was sent to a brief training course at the Concord Hotel. E. Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); El Paso Manor, Inc., 164 NLRB 597, 598. No reason is as- signed in the record why Doin should be directed to attend a training course on August 23 and 24 only to be discharged on August 25. N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205 (C.A. 2); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (C.A. 8). 5. Respondent entertained antiunion hostility. Its contrary evidence is not credited. This in itself is not an unfair labor practice. N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4); N.L.R.B. v. Audio In- dustries, 313 F.2d 858 (C.A. 7). But it is an ele- ment which may be appraised in evaluating the reason why an employee was terminated. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). Ma- phis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4). 6. Only union adherents were discharged, while the four salesmen who did not sign union authoriza- tion cards were retained. Nachman Corporation, 144 NLRB 473. Respondent contends that it laid off all the poor and lackadaisical performers, 10 in number, and retained the 4 good performers. But no evidence was adduced to show the sales records of these employees. Hence, I find that this defense has not been established. Sterling Aluminum Co. v. N.L.R.B., 391 F.2d 713, 723 (C.A. 8). This does not mean that because this defense has failed that I have shifted the burden of proof from the General Counsel to the Respondent. To reject a defense will not constitute affirmative evidence to sustain the General Counsel's onus of establishing an unlawful discharge. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1); Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.); N.L.R.B. v. D'Armigene, Inc., 353 F.2d 406, 411 (C.A. 2). The ultimate finding that Doin was dis- criminatorily discharged has emerged from my find- ing that the General Counsel has sustained his bur- den of proof by a fair preponderance of the evidence. Cf. N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A. 2), for a valuable analysis upon the function of a fact finder in connection with this burden. B. The Discharge of Joseph Hamilton Hamilton was hired as a salesman by Respondent about March 1967. In early August 1967 he signed a union authorization card. See General Counsel's Exhibit 2(b). On August 23 Hamilton went to the Concord Hotel in the Catskills to attend a preview of Ford 1968 cars. He left the Concord about 2 or 3 p.m. on August 24 and proceeded directly to the agency in Schenectady, arriving there about 7 p.m. But he found the place closed, although this was earlier than the normal closing hour. The following day, August 25, Hamilton reported for work about 8:15 a.m . Upon arriving he was told management was holding a meeting upstairs. So he 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD waited in the showroom . Soon General Sales Manager James Neely invited Hamilton to go up- stairs to Helfrich 's office . He did so. In the room with Hamilton were Neely, President Helfrich, and Used-Car Manager Don Maynard . As soon as Hamilton entered the room , Helfrich handed him a letter (G.C. Exh. 5), in relevant part reciting: August 24, 1967 Joseph Hamilton The Company went to great expense to have you attend a mandatory meeting for the show- ing of the 1968 Fords at the Concord Hotel. Due to this failure to comply with company rules and regulations and your failure to attend this meeting, you are hereby discharged. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Helfrich 's only comment as he served Hamilton with the letter was, "I'm sorry I have to do this." Sometime in early September, while Hamilton and Neely were at the bar in Verudo 's Restaurant and Bar, Neely asked Hamilton how the latter could be so stupid as to sign a union card consider- ing the amount of money Hamilton was making. I find this is not an unfair labor practice. As to Hamilton, I find that he was discharged for being a member of the Union, and that the reasons mentioned in the letter discharging him are a pre- text. This ultimate finding is based on the entire record and the following subsidiary findings: 1. Respondent was cognizant of Hamilton's union membership. Its contrary evidence is not credited. In any event, the Board's small plant rule is operative , so that knowledge of such membership may be imputed to Respondent. 2. Respondent was opposed to unions . While this alone falls short of establishing a discriminatory motive, it is a factor which may be considered in determining the true reason underlying the discharge of Hamilton . Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298 , 304 (C.A. 4). 3. Only members of the Union , 10 in all, were discharged on August 24, whereas all nonunion em- ployees, 4 altogether, were retained. While not con- clusive, this fact also sheds light upon the issue of the real reason prompting the termination of Hamilton. This is particularly relevant when no specific evidence was presented-other than a general conclusion that those not discharged were better salesmen-indicating in what respects all the union men without exception were inferior and the nonunion men uniformly were so superior that they were retained. Sterling Aluminum Co. v. N.L.R.B., 391 F.2d 713, 723 (C.A. 8). In my opinion, Star Paper Tube, Inc., 135 NLRB 344, upon which Respondent relies, supports the foregoing result, because specific evidence was adduced in the Star Tube case, and it was not decided on general con- clusions as in the instant case. 4. The record is devoid of evidence that Hamil- ton did not attend the meeting for the showing of the 1968 Fords. In addition, I credit Hamilton that he attended. Further, the discharge letter (G.C. Exh. 5 ) accuses Hamilton of "failure to comply with company rules and regulations ," but the record is barren of evidence identifying those rules and regulations and the manner in which Hamilton breached them . I find that these accusations are false, and that falsity of accusation is relevant in ascertaining the true motive behind a discharge. "Affirmative proof, however, that the reason given was false warrants the inference that some other reason was concealed." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C .A. 1). Accord: Sterling Aluminum Co. v. N.L.R.B., 391 F.2d 713, 723 (C.A. 8). I draw the inference that another reason, that is, Hamilton's union membership , was being concealed. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). 5. As in the case of Doin , the timing and manner of discharge are significant . Thus, Hamilton was abruptly discharged, without prior warning, during the workweek and shortly after he signed a union authorization card. 6. Of course an employer may lawfully terminate an employee for cause (N.L.R.B. v. Covington Mo- tor, 344 F.2d 136 , 138 (C.A. 4), Klate Holt Co., 161 NLRB 1606, 1611-12 ), and the Board may not pass upon or review in this proceeding the harsh- ness or severity of discipline when cause exists for a discharge. N.L.R.B. v. United Parcel Service, 317 F.2d 912 , 914 (C.A . 1); N.L.R.B. v. Ace Comb Co., 342 F.2d 841 , 847 (C .A. 8); Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9); In- terboro Contractors, Inc., 157 NLRB 1295, 1301. But "the fact that a lawful cause for discharge is available is no defense where the employee is ac- tually discharged because of his union activities." N.L.R.B. v. Ace Comb Co., supra at 847; N.L.R.B. v. Symons Mfg., Co., 328 F.2d 835 , 837 (C.A. 7). Therefore it is sufficient to find that a discharge was prompted discriminatorily and that a substan- tial or motivating reason behind the discharge was the employee's union activity , despite the fact that other reasons may exist. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883 , 885 (C.A. 1). I find that the substantial and motivating reason leading to Hamilton 's discharge is his union membership. Cf. N.L.R.B. v. D'Armigene, Inc., 353 F.2d 406, 409 (C.A. 2). GRAHAM FORD , INC. 317 C. The Discharge of Amedeo Piccolo Another of Respondent 's salesmen is Amedeo2 Piccolo, who started working as such in October 1966. In early August 1967 , he signed a union authorization card . See General Counsel's Exhibit 2(c). Piccolo is also vice president of the Union. Late in the afternoon of August 23 Piccolo ar- rived at the Concord Hotel to attend a showing of new Fords. On August 24 General Sales Manager James Neely spoke to Piccolo in the lobby of the Concord Hotel. During this conversation Piccolo asked Neely what the matter was with Respondent's management. Neely responded that "management knows that there has been a move to organize," and asked Piccolo if Piccolo knew "who was starting it." Piccolo gave an evasive answer , and told Neely "not to make anyone a patsy or myself and avoid adverse publicity on this issue ." Neely then said he did not think the union organizing would get anywhere. Later that day, August 24, Piccolo attended the new-car showing . When it closed in the afternoon Piccolo checked out from the hotel and left for Schenectady . At 8:30 the next morning , August 25, he reported for work . As soon as he arrived General Sales Manager James Neely instructed him to go upstairs to President Helfrich 's office. When Piccolo reached the office Neely handed Piccolo a letter which Helfrich had just given to Neely. Hel- frich remarked that he was sorry he "had to do it" and added that he wanted to talk to Piccolo later. No such talk occurred. In pertinent part this letter reads as follows: August 24, 1967 Amendeo Piccolo Due to a misunderstanding of company rules, regulations, and policies, your services at Gene Graham Ford, Inc., are no longer required. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT In its essential features Piccolo's discharge matches that of Hamilton , and I so find. It is not necessary to repeat here the manner in which the two cases corres,ond . Additional findings, not made in Hamilton s case, are pertinent in connec- tion with Piccolo's release . They are: 1. Piccolo is vice president of the Union. I recog- nize that union office neither confers immunity from discipline by the employer (Metals Engineer- ing Co., 148 NLRB 88, 90), nor insulates an em- ployee from discharge for legitimate, nondis- criminatory _ reasons. N.L.R.B. v. Park Edge Sheridan eats, Inc., 341 F.2d 725 (C.A. 2); Wellington Mill v. N.L.R.B., 330 F.2d 579, 586-587 (C.A. 4); Mitchell Transport, Inc., 152 NLRB 122, 123, set aside sub nom. Charles L. Hawkins v. N.L.R.B., 358 F.2d 281 (C.A. 7); N.L.R.B. v. Ten- nessee Packers, Inc., 390 F.2d 782, 786-787 (C.A. 6). However, I find that the predominant reason be- hind Piccolo's dismissal is his union office, mem- bership, and activity. N.L.R.B. v. Tennessee Packers, Inc., supra at 784. "Obviously the discharge of a leading union advocate is a most ef- fective method of undermining a union." N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5). 2. The document apprising Hamilton of his discharge merely informs him that he misun- derstood "company rules, regulations, and poli- cies." Admittedly, no explanation of the precise of- fenses with which he was charged was then or at any other time asserted by Respondent to Piccolo. The failure to give any explanation to an employee when he is terminated warrants the inference-and I draw it-"that the layoff was discriminatory." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5); N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511 (C.A. 5). 3. It has been held that the "failure to give any explanation" to an employee when he is terminated justified an inference that the employer had knowledge of the employee's union activities. American Grinding & Machine Co., 150 NLRB 1357, 1358; Virginia Metalcrafters, Inc., 158 NLRB 958, 962. For this additional reason I find that Respondent had knowledge of Piccolo's union ac- tivity. On the basis of the entire record, the findings made in connection with the discharge of Hamilton, and the additional three findings outlined in this subsection, I find that Piccolo was discharged for holding union office and for union membership and activity, and that the ground alleged in his dismissal notice is a pretext to disguise the true reason. N.L.R.B. v. Borden Co., 392 F.2d 412, 415 (C.A. 5), is distinguishable in my opinion. D. The Discharge of Leo Chalanchanis Chalachanis was hired as a salesman by Respon- dent in November 1966. About August 20 or 21 he signed a union authorization card. See General Counsel's Exhibit 2(d). About August 23 Chalachanis attended the preview of new Fords at the Concord Hotel. While ' This is the spelling of the signature on Piccolo's union authorization card. In the complaint and the transcript Piccolo's first name is spelled Amedio. 318 DECISIONS OF NATIONAL at the hotel coffeeshop, General Sales Manager James Neely spoke to him on August 24. In this conversation Neely asked Chalachanis if the latter had signed a union card . Chalachanis replied that he had. About 8:30 a.m. on August 25 Chalachanis re- ported to work at the agency . Roughly an hour later he was called to President Helfrich's office up- stairs. Helfrich, Neely, Sales Manager Don Maynard, and Miss Mary Quinlin were present when Chalachanis entered the room . As soon as he came in Chalachanis was handed a letter (G.C. Exh. 7) by Neely, but not a word was uttered by Neely as he did so. This letter, in relevant part, reads as follows: Leo Chalachanis: August 24, 1967 Due to your failure to comply with manage- ment's direction and your failure to improve your performance , your services here at Gene Graham Ford, Inc. are no longer required. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Following this discharge the Union picketed Graham Ford. Chalachanis participated therein. The discharge of Chalachanis in my opinion was substantially motivated by reason of his being a union member , and I so find. Further, I find that the reason assigned in the dismissal notice of Au- gust 24 is a pretext to conceal the true reason. These two ultimate findings are based on the entire record and the following subsidiary findings: 1. Chalachanis signed a union authorization card, and Respondent had knowledge thereof. 2. No prior warning had been given to Chalachanis that his performance was unsatisfacto- ry. In fact, it is difficult to comprehend why he was sent to a short training course at the Concord Hotel on August 23 and 24 only to be discharged on Au- gust 25. 3. He was discharged abruptly during the work- week. 4. No evidence was given to show just how his performance was lagging, i.e., his sales for com- parable periods were not described or even out- lined at the hearing. 5. Timing is important. He was discharged not long after he signed a union authorization card. 6. No explanation of the nature of his "failure to improve ... performance" was given to him. This failure to describe the nature of the dereliction LABOR RELATIONS BOARD leading to his dismissal warrants the inference-and I draw it-that the layoff was discriminatory. 7. Finally, only union men were laid off-in fact, the entire union membership at Respondent's agen- cy was discharged. This too, while not conclusive, sheds light in ascertaining the real reason for the discharge. E. The Discharge of Tom Guy Tom Guy signed a union authorization card. See General Counsel's Exhibit 2(e). He was later discharged by a letter (G.C. Exh. 8) dated August 24, 1967. Insofar as material it recites: August 24, 1967 Tom Guy Due to a misunderstanding of company rules, regulations and policies, your services here at Gene Graham Ford, Inc. are no longer required. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Guy did not testify. If Guy's discharge is taken out of context, it would seem that a prima facie case has not been established that he was discriminatori- ly discharged . But his case must be assessed in the light of the whole record. So considered, I find that "In all material respects, the discharge of [Guy] did not differ from those of other employees found to be discriminatees." American Grinding & Machine Co., 150 NLRB 1357, 1358. Thus Guy was abruptly discharged during the week by a letter merely ac- cusing him of "misunderstanding of company rules, regulations, and policies"; he signed a union card not long before he was discharged; all the union members among Respondent's salesmen were discharged on the same day; and all the nonunion salesmen continued to hold their positions. Accordingly, on the basis of the whole record, I conclude and find that, in addition to the other nine employees herein found to have been illegally discharged, Guy was dismissed for his union activi- ty, and that the ground for discharging him alleged in the letter of August 24 to him is a pretext. F. The Discharge of David Robideau In March 1967 , Respondent hired Robideau as a salesman. He signed a union authorization card about 2 weeks before August 1967. See General Counsel's Exhibit 2(f). GRAHAM FORD, INC. 319 About 3 or 4 p.m. on August 23 Robideau ar- rived at the Concord Hotel in the Catskills to at- tend a showing of 1968 Ford models. Later that date, while Robideau was conversing with General Sales Manager James Neely, the latter mentioned to Robideau "as rumor has it a union is being formed ... it will never work ... because the men will never stick together ." While I find this shows knowledge of union activity and displays union animus, f find it is not coercive and, therefore, does not violate Section 8(a)(1) of the Act. Robideau reported for work at 8:30 a.m. on Au- gust 25. About 8:45 a.m., he observed employee Ernest Doin proceeding downstairs . At the same time General Sales Manager Neely beckoned Robideau to come upstairs . So Robideau ascended to President Helfrich's office where he found Hel- frich, Mary Quinlin, and Sales Manager Don Maynard awaiting him. Soon Neely entered the room . Then Helfrich gave Neely a letter and he in turn handed it to Robideau. That letter (G.C. Exh. 9), dated August 24 , 1967, is addressed to David Robideau and notifies him that Due to your sales performance and the inabili- ty to improve your sales as required of a good salesman at Gene Graham Ford, Inc. your ser- vices here are no longer required. warned or criticized that his sales record was un- satisfactory. Failure to warn has probative value. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 887 (C.A. 1); N.L.R.B. v. Radcliffe, et al. d/b/a Homedale Tractor & Equipment Co., 211 F.2d 309, 314 (C.A. 9); Virginia Metalcrafters, Inc., 158 NLRB 958, 962. 4. No satisfactory explanation is given why Robideau should be sent to the Concord Hotel on August 23 and 24 for a short training course only to be discharged on August 25. Nothing in the record justifies a conclusion that Robideau did anything on August 23 and 24 leading to his dismissal on Au- gust 25. 5. Timing and manner of discharge are impor- tant. Robideau was discharged precipitously, during the week, a few days after signing a union card. In addition, only union men were discharged while nonunion men were retained. 6. When Robideau protested his discharge as un- fair, Respondent said nothing in reply. Failure to give an explanation under the circumstances is some indicia "that the layoff was discriminatory." N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5). Cf. N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511, 515 (C.A. 5); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8). G. The Discharge of John J. Delaney GENE GRAHAM FORD, INC. In October 1966, Respondent hired John j. Delaney as a salesman . On August 21, 1967, he /s/ Harold Helfrich signed a union authorization card . See General HAROLD HELFRICH, PRESIDENT Upon reading the letter Robideau protested, "I don't think this is fair." But Neely merely shrugged his shoulders, saying nothing in reply other than to inquire if Robideau had a ride. At no time prior to his discharge had Respondent expressed concern about, or even mentioned, Robideau 's sales per- formance . In fact Robideau spoke to Helfrich and Neely on the night of August 24 at the agency, which he found closed , but neither one at that time indicated to Robideau that Robideau would be discharged the next day. Circumstances touching upon Robideau 's dismis- sal point to the conclusion , and I find , that he was removed from his employment because of his union membership , and that the reasons mentioned in the letter discharging him is a cloak to disguise the true reason . These ultimate findings are based on the whole record and the following subsidiary facts, which I also find: 1. Robideau signed a union authorization card and Respondent was cognizant of this. 2. Respondent displayed antiunion hostility. 3. Although the dismissal letter refers to "the in- ability to improve your sales ," Robideau was never Counsel's Exhibit 2(g). About 4 or 5 p.m. on Au- gust 23 Delaney arrived at the Concord Hotel to be present at the unveiling of the 1968 Ford models scheduled for the next day. And he did attend the new-car showing on August 24. About 10:30 a.m. on August 25 Delaney re- ported for work on the afternoon shift. As Delaney approached the agency, employee Robideau waved him away and told him not to go in. When Delaney asked why, Robideau replied that Delaney was going to be fired because "we are all being fired. We who have evidently signed union cards." Thereupon Delaney left and arranged for transpor- tation home as he lived about 20 miles away and would lose his company car when discharged. Then he returned to the agency at approximately 1 p.m., the starting time of the afternoon shift. When he entered the premises of the agency at 1 p.m. on August 25 Delaney went directly to General Sales Manager Neely's office, where he found Neely and Sales Manager Maynard. When Delaney said to Neely, "I guess you've got something for me," the latter replied, "Yes." At the same time Neely handed Delaney a letter (G.C. Exh. 10), dated August 24, 1967, and addressed to John J. Delaney, reciting that: The Company went to great expense to have you attend a mandatory meeting for the show- 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of the 1968 Ford at the Concord Hotel. Due to this failure to comply with company rules and regulations and your failure to attend this meeting, you are hereby discharged. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT After reading the letter Delaney told Neel, "you know I attended. Does it make a difference? ' Neely answered, "No." To prove that he attended Delaney produced a card admitting him to the Ford preview. Although this card bore the name of a salesman from Akron, Ohio, Neely refused to let Delaney explain how or why it was used by Delaney to attend the meeting. Then Delaney remarked that "it stinks," declined an offer of a ride from Neely, and left. At no time did Neely mention that Delaney was absent from the Ford showing or that Neely doubted that Delaney attended it. Like the six other salesmen heretofore found to be discriminatorily discharged , I find that Delaney was terminated for signing a union card; and I further find that the grounds mentioned in the letter dismissing him are a pretext to mask the true reason for his layoff. These ultimate findings flow from, and are based on, the whole record and the ensuing subsidiary facts, which I find: 1. Delaney signed a union card and Respondent had knowledge thereof. 2. Respondent entertained antiunion hostility. 3. I credit Delaney that he attended the preview of Fords on August 23 and 24, especially since it would have been a simple matter to contradict him by the records of Concord Hotel if Delaney had not been there. Yet no such evidence was introduced by Respondent . Hence, I find as false the statement in Delaney's dismissal notice that he did not attend "this mandatory meeting ... for the showing of the 1968 Fords at the Concord Hotel." The fact, which I find, that Delaney's admission card to this "man- datory meeting" carried another person's name tend to confirm, rather than disprove, that Delaney attended that meeting. Since a reason assigned for his discharge is false, this warrants the inference , which I draw, that a dis- criminatory purpose underlay Delaney 's discharge. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1). Cf. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). 4. The dismissal notice also charges Delaney with "this failure to comply with company rules and regulations." But Respondent at no time explained which infraction of the rules and regulations had caused Delaney 's downfall. This failure to explain under the circumstances supports the inference, which I draw, that a discriminatory motive prompted Delaney 's discharge. American Grinding & Machine Co., 150 NLRB 1357, 1358; Virginia Metalcrafters, Inc., 158 NLRB 958, 962. Cf. Sterling Aluminum Co . v. N.L.R.B., 391 F.2d 713, 723 (C.A. 8). 5. Only union men were discharged on August 25, and all the nonunion men were retained . In fact all the union salesmen, 10 in all, were discharged on that date . This is a factor tending to show, but not compelling the conclusion , that Delaney was discharged for his union membership. 6. Timing and manner of discharge are signifi- cant. Thus, I find that Delaney was abruptly discharged a few days after he signed a union card and during the workweek. H. The Discharge of Milton E. Hewett Hewett has been a salesman for Respondent since February 1967. About August 20 he signed a union authorization card. See General Counsel's Exhibit 2 (h). On August 23 he checked in at the Concord Hotel, and the next day attended the new Ford car showing at the hotel. About 10 a.m. on August 25 Hewett reported for work at the agency and called on General Sales Manager Neely. Very soon thereafter Neely brought Hewett to President Helfrich 's office where Neely handed Hewett an envelope. When Hewett asked "Is that all?" Neely replied by asking Hewett for the keys and registration to the company car which Hewett operated. Although Neely also of- fered Hewett a ride home , Hewett refused it. Within the envelope was a letter (G.C. Exh. 11) dated August 24, 1967, addressed to "Milton Hewitt [sic]" and providing that: The Company went to great expense to have you attend a mandatory meeting for the show- ing of the 1968 Ford at the Concord Hotel. Due to this failure to comply with company rules and regulations and your failure to attend this meeting, you are hereby discharged. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Although Hewett did not read it until he was "back .. on the street," he knew what the envelope con- tained at the moment it was presented to him. On the evidence unfolded in Hewett's case, I am persuaded , and find, that Hewett was discharged for signing a union authorization card, and that the reasons advanced in the dismissal letter are a pre- text to conceal the true reason . These ultimate GRAHAM FORD, INC. findings emerge from , and are based on, the follow- ing subsidiary facts, which I also find: 1. Respondent displayed antiunion hostility. N.L.R.B. v. Flomatic Corp., 347 F.2d 74, 78 (C.A. 2), is distinguishable. 2. Hewett signed a union card and Respondent was aware of this. 3. Timing cannot be ignored . Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-86. Hewett was discharged a few days after he signed an authorization card for the Union during the peak of a union campaign . See Texas Industries, 156 NLRB 423, 425. 4. The circumstances of Hewett 's discharge are significant . Not only was he abruptly discharged, but Hewett was expelled from work during the week . In addition, nine other union salesmen were discharged contemporaneously with Hewett, so that (a) the entire union membership on the sales force was discharged , while the entire nonunion sales force of four salesmen was retained, and (b) the Union's majority was thereby destroyed and entire- ly eliminated . Thus, Respondent placed itself in a position to claim that the Union lacked a majority before a demand for recognition could be presented to it . It is significant that Hewett's discharge coincided with a successful organiza- tional campaign . Texas Industries, Inc., 156 NLRB 423, 425; N.L.R.B. v. Mira-Pak, Inc., 354 F.2d 525, 527 (C.A. 5). 5. Although Hewett is charged with "failure to comply with company rules and regulations," at no time was he informed as to which ones he violated. Such an indefinite accusation and failure to articu- late reasons warrants the inference , which I draw, that a discriminatory motive prompted his discharge. N.L.R.B. v. Radcliffe, et al. d/b/a Homedale Tractor & Equipment Co., 211 F.2d 309, 314 (C.A. 9); Virginia Metalcrafters, Inc., 158 NLRB 958, 962. 6. Hewett's testimony discloses that he checked in at the Concord Hotel on August 23 and attended the Ford car showing there on August 24. I credit this evidence, especially since it has not been rebutted either by the hotel records or by other (whether oral or documentary) evidence. Yet one ground relied on for Hewett's dismissal in the letter terminating him is "failure to attend this [ 1968 Ford car] meeting." Patently this ground is false since I have found that Hewett did attend that meeting. Falsely to accuse under these circum- stances warrants the inference that Respondent was concealing some other reason . N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1). I am con- vinced, and find, that Respondent did conceal another reason when Hewett was handed the dismissal letter, and that such reason is union ac- tivity. Cf. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). 321 1. The Discharge of Richard J. Nolan Nolan was hired as a salesman in February 1967 by Graham Ford, the Respondent. On August 21 he signed a union authorization card. See General Counsel's Exhibit 2(i). In August, Nolan went to the Concord Hotel to attend the showing of 1968 Fords. He left about 2:30 p.m. on August 24. On August 25, about 8:30 a.m., Nolan started working at the agency. At approximately 8:50 a.m., General Sales Manager James Neely called Nolan to President Helfrich's office. Notwithstanding that Nolan told Neely that he, Nolan, was busy with a customer, Neely told him to "forget the customer and come right down to the office." Nolan obeyed this command. Upon arriving at the office, Nolan observed Hel- frich handing Neely a letter. See General Counsel's Exhibit 12. Neely in turn gave this letter to Nolan. Dated August 24, 1967, and directed to Richard Nolan, it reads as follows: The Company went to great expense to have you attend a mandatory meeting for the show- ing of the 1968 Ford at the Concord Hotel. Due to this failure to comply with company rules and regulations and your failure to attend this meeting , you are hereby discharged. GENE GRAHAM FORD, INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Besides Helfrich and Neely, Miss Quinlin and Sales Manager Don Maynard were present in the office at the time. Although Nolan asked Helfrich why he was firing Nolan, Helfrich merely replied that he was sorry he had to do it, and that he did not want to lose a good man like Nolan. When Nolan explained that he could not attend the preview of the Ford cars because he was sick in his hotel room, Helfrich replied that it made no difference because he was discharging his entire sales force. Further, Helfrich asked Nolan to see him the following Monday (Au- gust 28) to discuss Nonlan's dismissal . Helfrich also promised to discuss rehiring Nolan on Monday, Au- gust 28, if Nolan still wanted to work for Graham Ford, but Nolan did not show up on that date. Nolan participated in the picketing of Respon- dent following the August 25 discharges. Nolan's discharge in my opinion resulted from his signing a union card. I so find. Further, I find that the reasons assigned for his dismissal are a pretext to conceal the true reason. These findings are based on the entire record and the following subsidiary facts, which I also find: 354-126 O-LT - 73 - pt. 1 - 22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Respondent entertained union animus and was aware that Nolan was a union adherent. In ad- dition I find that Nolan signed a union authoriza- tion card about August 21. 2. Nolan checked in at the Concord Hotel on August 23 but did not attend the showing of 1968 Fords on August 24 because he was sick . His failure to attend constitutes cause for discharge , since he did not ask to be excused or sought to explain his absence when he resumed work on August 25. It is of no consequence that discharging Nolan for not appearing at the Ford showing on August 24 may be thought to be unduly harsh and that an arbitra- tor may well have imposed a lesser penalty . For the Board is not an arbitrator and may not substitute its judgment for that of an employer as to the ap- propriateness or reasonableness of the discipline in- volved once it has been determined that an em- ployee has engaged in conduct not protected by the Act. N.L.R.B. v . Ogle Protection Service, 375 F.2d 497, 505 (C.A. 6), cert. denied 389 U. S. 843; Thurston Motor Lines , Inc., 149 NLRB 1368, 1369. If in fact Nolan was terminated for not attending the August 24 meeting , the discharge must be upheld. N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8); Interboro Contractors, Inc., 157 NLRB 1295, 1301; N.L.R.B. v. Ogle Protection Ser- vice, supra. Nevertheless, merely because lawful cause exists will not justify a discharge if the motivating or dominant reason behind the dismissal is a dis- criminatory one. N.L.R.B. v . D'Armigene, 353 F.2d 406, 409 (C.A. 2); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). In this connec- tion I have not disregarded the maxim that merely because employer action coincides with a union drive does not establish a discriminatory purpose in such action . Star-Brite Industries, Inc., 127 NLRB 1008, 1011; N.L.R.B. Covington Motor, 344 F.2d 136, 138 (C.A. 4). Bu I find that a substantial or motivating reason for Nolan 's discharge is his unionism although cause existed for his discharge in that he failed to att nd the new-car showing. N.L.R.B. v. Tennessee Packers, Inc., 390 F.2d 782 (C.A. 6). 3. Timing and manner of discharge are also sig- nificant. These factors have been detailed above in connection with other discharges and need not be repeated here. In addition Nolan was given no op- portunity to defend himself for being absent. Talon, Inc., 170 NLRB 355, fn. 1. 4. Only union adherents were discharged on Au- gust 25, while all (four in number) nonunion men were retained. 5. No explanation was given to Nolan as to how he failed to comply with company rules and regula- tions, or which ones he broke, despite the fact that one of the two charges pressed against him in the letter of August 24 indicts him with "failure to comply with company rules and regulations." This assumes added significance because President Hel- frich failed to render an acceptable answer to Nolan 's question as to why Nolan was being fired. Virginia Metalcrafters , Inc., 158 NLRB 958, 962; N.L.R.B. v. Radcliffe, et al. d/b/a Homedale Tractors & Equipment Co., 211 F. 2d 309 , 314 (C.A. 9). J. The Discharge of Ronald G. Bottieri Bottieri was hired as a salesman by Respondent on October 17, 1966 . He signed a union authoriza- tion card in May 1967. See General Counsel's Ex- hibit 2(j). Unlike the other salesmen , Bottieri did not attend the preview of new Fords at the Concord Hotel. Rather, he remained at the agency's showroom and worked there on August 23 and 24. On August 25 he reported for work at 8:30 a.m., his usual starting time . A half hour later General Sales Manager James Neely directed Bottieri to fol- low him upstairs to President Helfrich's office. When the two arrived there , Helfrich handed a paper to Neely, who then gave it to Bottieri. It turned out to be a letter (G.C. Exh . 13) dated Au- gust 24, 1967, addressed to Ronald Bottieri, and in- forming him that: Due to your poor sales performance and lackadaisical attitude, and also, not being able to do your best as required of a good salesman your services here at Gene Graham Ford, Inc. are no longer required. GENE GRAHAM FORD INC. /s/ Harold Helfrich HAROLD HELFRICH, PRESIDENT Neither Helfrich nor Neely said anything to Bottieri on this occasion . After reading the letter Bottieri left. Prior to receiving the letter Bottieri had not been informed, notified, or warned by any supervisor or official of Respondent that his sales performance was poor or that his attitude was lackadisical; nor had he been reprimanded or disciplined therefor. While Bottieri did not attend the preview of Ford cars on August 23 and 24, his situation in many respects is comparable to that of the union salesmen who did attend such preview . And I addi- tionally find that Bottieri signed a union authoriza- tion card, that Respondent had knowledge thereof, and that Respondent harbored union animus. On these facts, the subsidiary findings (which I find as facts ) enumerated immediately below, and the en- tire record in this case, I conclude and find that Bottieri was discharged for signing a union authorization card , and that the reasons given in the letter discharging him are a pretext. 1. All the union salesmen (nine besides Bottieri) were discharged on the same day, while the nonu- nion salesmen (four in number) continued to work. GRAHAM FORD, INC. It is my opinion, and I find, that it is more than coincidental that all the union men were terminated on the same day while all the nonunion men were retained. 2. Timing cannot be disregarded. Bottieri was discharged not long after he signed the union card and at the peak of a successful drive whereby the Union obtained a majority. 3. Manner of discharge is significant. Thus, Bot- tieri was summarily discharged during the work- week. Further, the word "lackadaisical" is meaningless absent language describing with some clarity how Bottieri's conduct was embraced by that word. Yet no such language was used. Thus, I find that, in this respect, no understandable reason was given for the discharge. This tends to show a discriminatory motive. 4. Although the dismissal notice asserts that Bot- tieri was discharged "due to your poor sales per- formance" as one reason, no evidence was offered as to Bottieri 's sales record in the past or in the year 1967. Further, Bottieri was never at any time put on notice that his sales were below par or that he risked losing his job by "poor sales per- formance." Failure to warn, under the circum- stances, is significant. Talon, Inc., 170 NLRB No. 42, fn. 1. K. Interference, Restraint, and Coercion In April 1967, Respondent's president, Helfrich, spoke to employee Ernest Doin in Helfrich's office. In this conversation Helfrich mentioned that em- ployees were then trying to organize another Graham Ford agency in Akron, Ohio, but the effort proved fruitless and the men "got their butts burned pretty badly." Helfrich added that he "hated to see it happen to" Doin. At this time Doin was president of the Union. While I find that Hel- frich's statement displayed union animus, neverthe- less, I find that it contains no coercion or threat of reprisal and, therefore, does not run afoul of Sec- tion 8(a)(1) of the Act. As found above, the Union picketed Graham Ford after the above discharges occurred. While such picketing was being conducted, on or about September 8 and 9, President Helfrich took a pic- ture of the picket signs. Helfrich testified, and I credit him, that he did so to obtain the exact text of the legend on the picket banners. But I find nothing coercive in this conduct, as I find it is proper to preserve the wording of picket signs in case the precise language used became relevant or material at some future time. In addition, I find that no threats or actual reprisals accompanied or were coupled with the picture taking. Accordingly, I shall recommend that this branch of the complaint be dismissed. Hilton Mobile Homes, 155 NLRB 873, 874, supports this conclusion. As found above, General Sales Manager James Neely told employee Piccolo that management was 323 aware of the move to organize Respondent's salesmen and asked Piccolo who started it. I find this is coercive interrogation , as no legitimate pur- pose has been shown for such inquiry . Johnnie's Poultry Co., 146 NLRB 770, 774-775, enforcement denied 344 F. 2d 617 (C.A. 8). In my opinion Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2), does not dictate a contrary result . Although I have credited Piccolo on this aspect of the case, I have not overlooked Piccolo's prior inconsistent state- ment when interviewed by an agent of the Board. This is because I am persuaded , on the basis of Pic- colo's demeanor on the witness stand , that he was testifying truthfully as a witness. As narrated above, I have found that General Sales Manager Neely asked employee Chalachanis whether Chalachanis had signed a union card. I find this is coercive, as no lawful cause has been shown for such a question . While I have credited Chalachanis, I have not disregarded his contrary testimony on cross-examination that he told a Board agent that the Union was not discussed on this occasion . Apart from the fact that I credit Chalachanis on the basis of my observation of his demeanor on the stand, I find that Chalachanis freely admitted on cross-examination that in some respects his affidavit given to the Board agent con- tained statements not consonant with his testimony on the stand. It is significant that Chalachanis was not evasive when confronted on cross-examination with these statements culled from his affidavit given before he testified. L. The Refusal To Recognize and Bargain With the Union When Respondent acquired the agency on Oc- tober 17, 1966, from Webster Motors Sales, Respondent was aware that the salesmen were try- ing to organize. In fact an election had been held prior to October 17, 1966, but as of that date the question of representation had not been resolved because the challenges to some votes had not yet been decided. However, Respondent had no knowledge after October 17, 1966, according to Eugene Graham, its chairman of the board, of "any activity whereby cards [were] being signed or new men joining the Union ...." As found above, Ernest Doin, president of the Union, on August 25 demanded recognition of the Union of Respondent's president, Harold Helfrich. At that time Doin handed 10 cards to Helfrich, these having been signed by salesmen Doin, Hamil- ton, Piccolo, Chalachanis, Guy, Robideau, Delaney, Hewett, Nolan, and Bottieri. I find these cards are valid. Since the parties have agreed that an ap- propriate unit consisted of 14 salesmen, it is obvi- ous-and I find-that the Union enjoyed a majority at the time of said demand and at all material times since then. And I further find, pursuant to the stipu- lation of the parties, that an appropriate unit under 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9(b) of the Act for the purposes of collec- tive bargaining is All new and used car and truck salesmen em- ployed at the Respondent 's Schenectady, New York, location, excluding all other employees, office clerical employees, mechanics, bodymen, parts department employees, profes- sional employees, guards, and supervisors as defined in the Act. Although Doin did not mention or describe the unit for which he demanded recognition, I find that President Helfrich reasonably understood that only salesmen were involved. Cf. N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 181 (C.A. 2). This is because (a) Graham knew Doin was president of the Union, ( b) the Union had asked for an elec- tion in that unit shortly before Respondent acquired the agency , and Respondent was aware of that, and (c ) all the cards presented to Helfrich not only were signed by salesmen but also designated the Union , a salesmen 's labor organization , as their bargaining agent. N.L.R.B. v. Albouguerque Phoenix Express, 368 F.2d 451, 453 (C.A. 10); Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.). Cf. Phelps-Dodge Copper Products Corp., 152 NLRB 1188 , 1192, reversed 354 F.2d 591 (C.A. 7); Johnnie's Poultry Co., 146 NLRB 770, 772, fn. 5. Accordingly, I find that a valid and proper demand was made upon Respondent to recognize the Union as the collective-bargaining representative of a majority of the employees in an appropriate unit; i.e., a unit composed only of the salesmen . N.L.R.B. v. Jackson Press, Inc., 201 F.2d 541, 544-545 (C.A. 7), does not compel a different conclusion. Respondent contends that the Union lacked a majority on August 25, when it presented its de- mand for recognition , as it had lost its majority on August 24 when all 10 salesmen who signed authorization cards were lawfully discharged. But as I have found that such 10 discharges were unlaw- ful, I further find that the Union 's majority was not dissipated by the illegal discharges . Washington Alu- minum Company, Inc., 126 NLRB 1410, 1411. And I find that the 10 cards are valid, as they were not obtained by wrongful or unlawful means. See N.L.R.B. v. Gotham Shoe Mfg. Co., 359 F.2d 684 (C.A. 2). Cf. N.L.R.B. v. S. E. Nichols Company, 380 F.2d 438 (C.A. 2). Then, again, Respondent questions the Union's majority because the cards are undated . However, one card, that of Richard J . Nolan, in evidence as General Counsel 's Exhibit 2(i), is dated "8-21-67," and I find that it was signed on that date . Further, I find that eight of the remaining nine cards were signed shortly before August 25, as I credit the signers thereof as to the date when each subscribed his card . And I find that Bottieri's card is valid although signed in May 1967. Accordingly, I find that this argument is not well taken as I find that none of the cards is stale . Nor is it fatal that the cards were presented within 1 year after a valid election. This is because Section 9 (c)(3) of the Act prohibits only the holding of more than one elec- tion in a unit in a year and does not affect the right to demand recognition based on cards during that same year following an election . Rocky Mountain Phosphates, Inc., 138 NLRB 292, 295; Conren, Inc. d/b/a Great Scot Super Market, 156 NLRB 592, 599, 368 F.2d 173 (C.A. 7); General Tire Co., 170 NLRB No. 78. Of course , even if a union represents a majority by reason of signed cards in its possession, an em- ployer may in good faith question that majority; and, if he so questions it, he cannot be held to have refused to recognize or bargain contrary to the provisions of Section 8(a)(5) of the Act. Aaron Brothers Company of California, 158 NLRB 1077, 1079. And the burden of proof is on the General Counsel to establish affirmatively the existence of bad faith. John P. Serpa, Inc., 155 NLRB 99, 100. The question then is whether the General Counsel has sustained this burden . In this connection I find that Respondent has not responded to the Union's demand of August 25 for recognition and that this constitutes a refusal to bargain collectively with the Union. It is my opinion , and I find, that the General Counsel has established by a fair preponderance of the evidence that Respondent did not in good faith question the Union's majority and that, therefore, Respondent's refusal to recognize and bargain with the Union transgresses Section 8 (a)(5) of the Act. This is based upon the entire record and the follow- ing, which I find as facts: 1. Respondent at no time informed the Union that Respondent questioned the Union's majority. In fact Respondent at no time since August 25 has communicated with the Union. It is reasonable to expect that Respondent would have announced its doubt of majority at least prior to the expiration of a reasonable time . Cf. N.L.R.B. v. Philamon Laboratories, 298 F.2d 176 (C.A. 2), cert. denied 370 U.S. 919. Further, Respondent chose to do nothing about the cards . "Where, as here, the Union had proof of its majority status readily available and [Respondent ] chose not to learn the facts, it took the chance of what they might be." James H. Mathews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8). See Irving Air Chute Company, Inc. v. N.L.R.B., 350 F.2d 176, 182 (C.A. 2). In fact good faith is not established by merely asserting it. John- nie's Poultry Co., 146 NLRB 770, 773 2. Respondent engaged in contemporaneous un- fair labor practices not consonant with good faith; i.e., it discriminatorily discharged the 10 salesmen belonging to the Union. Drug King, Inc., 157 NLRB 343, 344. This "evinces a rejection of the principle of collective bargaining " (American Cable Systems, Inc., 161 NLRB 332) and discloses "a desire [by Respondent] to gain time and to take action to dis- sipate the Union's majority." Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.). Cases like N.L.R.B. v. Logan Packing Co., 386 F.2d 562 GRAHAM FORD, INC. 325 (C.A. 4), do not compel a different result. Cf. N.L.R.B. v. Sehon Stevenson & Co., 386 F.2d 551 (C.A. 4). However, I do not regard Respondent's interrogation as of sufficient gravity to show bad faith and do not rely on it in finding a lack of good faith in questioning the Union 's majority . Hercules Packing Corporation, 163 NLRB 264, affd . sub nom. Textile Workers Union of America , AFL-CIO v. N.L.R.B., 386 F.2d 790 (C.A. 2). But see United Steel Workers of America , AFL-CIO ( Wagner Indus- trial Products Co., Inc.) v. N.L.R.B., 386 F.2d 981 (C.A.D.C.). Upon this issue I find that Respondent was cogni- zant of the Union's organizing efforts prior to the demand for recognition made by the Union. Respondent's evidence inconsistent with this find- ing is not credited . In any event I find such knowledge , contrary to Respondent's very able ar- gument, on the ground, that, as Respondent operated a small plant, the Board 's small plant rule attributes such knowledge to Respondent. New French Benzol Cleaners and Laundry , Inc., 139 NLRB 1176, 1179; Allied Distributing Corporation, 130 NLRB 1348, 1350 . In the latter case the Board inferred knowledge of union activity by reason of the smallness of the employer 's plant. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices prohibited by Section 8(a)(1), (3), and (5) of the Act, it will be recom- mended that it cease and desist therefrom and that it take specific affirmative action , described below, designed to effectuate the policies of the Act. Since all salesmen who were discharged have been rehired, no provision regarding their reinstatement is necessary . But I shall recommend that each of these salesmen be made whole for any loss of earnings suffered by reason of the discrimination against him. In making such salesmen whole Respondent shall pay to each a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of reinstatement, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner prescribed by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and, upon reasonable request, make available to the Board or its agents all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Since the discrimination involved in the discharges of the salesmen goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), I shall recommend that the Order issued safeguard employees against in- fringement in any manner of the rights vouchsafed to them by Section 7 of the Act. R & R Screen En- graving, Inc., 151 NLRB 1579, 1587. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Capital District Automobile Salesmen's As- sociation is a labor organization within the meaning of Section 2(5) of the Act. 2. Graham Ford, Inc., the Respondent, is an em- ployer as defined in Section 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By coercively interrogating employees as to their union membership, activities, and desires, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the tenure of employment of the 10 employees enumerated in this paragraph, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in unfair labor practices as defined in Sec- tion 8(a)(3) and (1) of the Act. Said 10 employees are Ernest Doin, Joseph Hamilton, Amedeo Pic- colo, Leo Chalachanis, Tom Guy, David Robideau, John J. Delaney, Milton E. Hewett, Richard J. Nolan, and Ronald G. Bottieri. 5. All new- and used-car and truck salesmen em- ployed at Respondent's Schenectady, New York, agency, excluding all other employees, office cleri- cal employees, mechanics, bodymen, parts depart- ment employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. On or about August 25, 1967, and at all material times thereafter, the Union has represented a majority, and has been the exclusive bargaining representative, of all the employees in the aforesaid appropriate unit for purposes of col- lective bargaining within the meaning of Section 9(b) of the Act, and Respondent was on that date, and has been since, legally obligated to recognize and bargain with the Union as such. 7. By refusing to recognize or bargain with the union for the employees in said appropriate unit on 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and since August 25, 1967, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Respondent has not committed any other un- fair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the Respondent, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Capital District Automobile Salesmen's Association, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or con- dition of employment. (b) Coercively interrogating its employees as to their union membership, activities, or desires. (c) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of rights safeguarded to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole the following employees for any loss of pay each may have suffered by reason of the discrimination against him, with interest thereon at the rate of 6 percent: Ernest Doin, Joseph Hamil- ton, Amedeo Piccolo, Leo Chalachanis, Tom Guy, David Robideau, John J. Delaney, Milton E. Hewett, Richard J. Nolan, and Ronald G. Bottieri. (b) Preserve and, upon reasonable request, make available to the Board or its agents , for ex- amination and copying, all payroll records and re- ports and all other records necessary to ascertain the amounts of backpay due under the terms of this Recommended Order. (c) Upon request, bargain collectively with the Union as the exclusive representative of all the em- ployees in the aforesaid appropriate unit and, if an understanding is reached, embody such understand- ing in a written , signed agreement. (d) Post at its Schenectady, New York, dealer- ship copies of the attached notice marked "Appen- dix."3 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order" ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Capital District Automobile Salesmen's As- sociation, or any other labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate our em- ployees as to their union membership, activi- ties, or desires. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the Act, except to the extent that such rights may be affected by a union shop agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL pay to the following employees any loss of pay incurred by them as a result of our discharging them, with interest thereon at 6 percent: Ernest Doin David Robideau Joseph Hamilton John J. Delaney Amedeo Piccolo Milton E. Hewett Leo Chalachanis Richard J. Nolan Tom Guy Ronald G. Bottieri WE WILL, upon request, bargain collectively with Capital District Automobile Salesmen's Association as the exclusive bargaining representative of all employees in the bargain- ing unit described below with respect to rates of pay, wages, hours of employment, and other GRAHAM conditions of employment, and, if an un- derstanding is reached, embody such un- derstanding in a written , signed agreement. The bargaining unit is: All new- and used-car and truck salesmen employed at our Schenectady, New York, agency, excluding all other employees, of- fice clerical employees, mechanics, bodymen, parts department employees, professional employees, guards, and super- visors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named Union, or any other labor or- ganization. FORD , INC. 327 GRAHAM FORD, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.002