G. K. Chevrolet, Inc.

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. K. Chevrolet, Inc. and American Federation of Professional Salesmen . Case 13-CA-8332 June 5, 1969 DECISION AND ORDER BY CHAIRMAN MC CULI.OCH AND MEMBERS JENKINS AND ZAGORIA On January 13, 1969, Trial Examiner Arthur M. Goldberg issued his Decision 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 Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. We agree with the Trial Examiner that the Respondent on March 15, 1968, discharged Theodore Cobean as a reprisal for testifying adversely to the Respondent's position in Case 13-RC-11391, and that such conduct on the part of the Respondent violated Section 8(a)(l) of the Act because it clearly indicated to employees, generally, that they also would be subject to reprisals for similarly testifying under the Act.' However, we do not agree with the Trial Examiner that Cobean was a managerial employee' and the Respondent did not violate Section 8(a)(4) of the Act by discharging him. The record shows, as the Trial Examiner found, that Cobean, as "truck 'These findings and conclusions were based , in part, upon credibility determinations of the Trial Examiner, to which the Respondent has excepted . Having carefully reviewed the record , we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly, we find no basis for disturbing those findings. Standard Dry Wall Products. Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 2). 'The Respondent's motion, filed May 14, 1969, for leave to cite Corriveau & Routhkr Cement Block. Inc. v. N.L.R B.. 410 F.2d 347 (C.A. 1), as additional authority in support of its exceptions and brief is granted in the absence of opposition . Contrary to the Respondent, however, we find the Corriveau case inapposite. 176 NLRB No. 53 manager," receives a salary of $25 a week more than other salesmen, and prepares and submits bids to governmental agencies, and orders trucks and truck equipment. However, the record also establishes that these duties account for only 20 percent of his time and approximately 10 percent of his income. Moreover, the record reveals that truck orders are of two kinds, (1) those to fill special customer orders, and (2) stock replacements. The number of trucks ordered for stock replacement is determined largely by regular seasonal variation, normal factory delivery waiting time, and sales quotas set at monthly meetings attended by company executives as well as other managers. Bids prepared by Cobean are determined in substantial part by reduced wholesale costs allowed by Chevrolet Motor Company, and must be signed by the Respondent's president. In these circumstances, we find that in ordering trucks and submitting bids, Cobean exercises some judgment, but within established limits. It does not appear that Cobean plays any part in the formulation or determination of the Respondent's policy or that his decision-making involves more than routine matters. We therefore find, contrary to the Trial Examiner, that Cobean is a rank-and-file and not a managerial employee.' As Cobean is a rank-and-file employee, we find that the Respondent, engaging in the foregoing conduct in violation of Section 8(a)(1), also violated Section 8(a)(4)1 of the Act. Moreover, we believe it essential , in order to protect the integrity of Board processes, that such specific finding be made, as the Respondent's conduct constitutes a flagrant interference not only with employees' rights but also with the orderly processes under this Act.6 CONCLUSION OF LAW We hereby adopt the Trial Examiner's Conclusions of Law except for substituting the following as paragraph 4, and renumbering the subsequent paragraphs accordingly. 4. By discharging Theodore Cobean on March 15, 1968, the Respondent violated Section 8(a)(4) and (1) of the Act. 'The Trial Examiner found that Cobean was not a supervisor as defined in the Act. As the record indicates that his exercise of supervisory authority, if any, is sporadic, we agree with this finding. 'Pacific Far East Line, Inc., 174 NLRB No. 172; Eastern Camera and Photo Corp., 140 NLRB 569, 571 . See also Weaver Beatty Motor Co, 112 NLRB 60. 'As we found Cobean to be a rank -and-file employee, we do not reach the issue or pass upon the applicability of the Act to managerial employees. Iowa Industrial Hydraulics. Inc., 169 NLRB No. 27. Although the General Counsel alleged a violation of Sec. 8(a)(3) of the Act, the Trial Examiner did not find such violation. As the General Counsel did not except thereto, we find it unnecessary to decide whether such conduct was also violative of Sec. 8(aX3). 'Belser Aviation Corporation . 135 NLRB 399, 404-405 Accord, NL.R.B v. Marine & Shipbuilding Workers , 391 U.S 418. G. K. CHEVROLET, INC. 417 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, G. K. Chevrolet, Inc., Downers Grove, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. Delete paragraph I(b) and substitute the following to the Trial Examiner's Recommended Order: (b) Discharging or otherwise discriminating against any employee because he has given testimony in a National Labor Relations Board proceeding. 2. Delete the second indented paragraph of the Appendix and add the following: WE WILL NOT discharge or otherwise discriminate against any employee because he has given testimony in a National Labor Relations Board proceeding. new and used automobiles, trucks, and related products. During the calendar year 1967 G. K. sold and distributed automobiles, trucks, and related products valued in excess of $500,000 of which products valued in excess of $100,000 were shipped directly to G. K.'s Downer Grove, Illinois, place of business directly from points outside the State of Illinois. The complaint alleged, the answer admitted, and I find that Respondent is 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 and meets the Board's standards for the assertion of its jurisdiction. If. THE LABOR ORGANIZATION INVOLVED The complaint alleged and Respondent denied that the American Federation of Professional Salesmen is a labor organization within the meaning of the Act. In support of its challenge to the status of the Charging Party the Respondent sought to introduce into evidence sections of the transcript in a prior Board proceeding, "Z" Frank, Inc., 172 NLRB No. 254.' In that case the Board had before it the question of the Charging Party's status as a labor organization within the meaning of the Act and held therein that American Federation of Professional Salesmen is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG Trial Examiner: Upon a charge filed on March 18, 1968, by the American Federation of Professional Salesmen (herein called the Union), the complaint herein issued on June 4, 1968. The complaint alleged that G. K. Chevrolet, Inc. (herein called G. K. or the Respondent), had violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act), by threat of reprisal if the employees selected the Union to represent them and by restriction of the employees' right to discuss the Union on the Respondent's premises. The Respondent was alleged to have violated Section 8(a)(3) and (4) of the Act by discharging Theodore Cobean because Cobean had engaged in union activity and had given testimony under the Act. In its answer Respondent admitted the discharge of Cobean but denied that he was an employee within the meaning of the Act. In all other aspects the answer denied the material allegations of the complaint. All parties participated in the hearing in Chicago, Illinois, on July 22, 1968, and were afforded full opportunity to be heard, to introduce evidence, to examine witnesses, and to present oral argument. Oral argument was waived and briefs were filed by General Counsel and the Respondent. Based upon the entire record in the case, my reading of the briefs, and from my observation of the witnesses and their demeanor I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT G. K. Chevrolet, Inc., is and has been at all times material herein a Delaware corporation with its principal office and place of business in Downers Grove, Illinois, where it is engaged in the retail sale and distribution of A. Background The Union commenced its organizational campaign among G. K.'s selling employees sometime in October 1967. On a Friday, the day that authorization cards were first made available for employees' signatures, Theodore Cobean was in the office of Respondent's president, Harry Belovsky. Present also were Mrs. Belovsky, G. K.'s general sales manager, Boucher, and Mrs. Cobean. Belovsky testified that this was a social get-together in his office after the showroom had been closed for the evening. Cobean announced that the Union was coming in the following Monday morning to sign Respondent's salesmen. Cobean testified that following his announcement Mr. and Mrs. Belovsky stated that the Union was no good, that it was not worth joining, and the men should not do so. He testified further that the Belovskys said the Union was a bunch of crooks. Belovsky testified that this session in his office took place about the end of November but claimed that he had first learned of the union movement from a letter he had received from an employer association of which he was a member. However, in his testimony Belovsky did not deny the antiunion statements attributed to him and Mrs. Belovsky by Cobean. B. Interference, Coercion, and Restraint 1. Boucher's threat As a regular practice sales meetings attended by Respondent's sales personnel were held once or twice a week. Theodore Grant, a former G. K. salesman, testified that about 2 weeks after he was first hired by the Respondent in November 1967 he attended a sales That case was docketed prior to issuance of the Board 's decision therein as Case 13-CA-8119. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting held in General Sales Manager Boucher's office. Present were almost all of G. K.'s salesmen. Grant testified without contradiction that at this meeting Boucher told the salesmen that he knew of the union movement, that it had been tried before and had failed, and that the men would be better off if they did not sign for or join the Union. Grant testified that Boucher concluded his remarks by saying, "As far as he was personally concerned, he wouldn't stick his neck out at that time." Respondent failed to controvert Grant's testimony. Moreover, Grant impressed me during his appearance on the stand as a credible witness and I find that Boucher made the statements attributed to him by Grant. I find that Boucher's concluding remark "could readily be understood . that the employees stood to suffer . . . reprisal if the Union were successful." Tilton Tanning Corp., 164 NLRB No. 155. Thus, Boucher's statement tended to coerce the employees in the exercise of their Section 7 rights and constituted a violation of Section 8(a)(1) of the Act. Pruden Products Company, 170 NLRB No. 32. 2. Limitation on union talk About the first week in January 1968, General Sales Manager Boucher held a meeting of the salesmen. Theodore Grant testified that this meeting was held on the day that he had been called to come back to work at G. K. Boucher arranged for Grant to be picked up and brought to Respondent's premises so that he could attend this meeting. All of Respondent's salesmen were present as well as Boucher and Sales Manager Kraus. Grant testified without contradiction that Boucher did most of the talking at this meeting and after announcing certain new policies relating to customer relations Boucher turned to the subject of the Union. It was Grant's testimony that Boucher said that G. K. was not a union hall, that there were to be no union meetings held at G. K., and that Boucher didn't want the word union mentioned on the floor. Belovsky testified that there had been considerable discussion of the Union among the salesmen and managers out on the sales floor and in the "little" enclosed offices which were assigned to the men. Accordingly Belovsky instructed Boucher to tell the employees "to tend to their business and don 't congregate on the floor and hold these little meetings during working hours." Belovsky further testified that such a rule had never been issued before as there had been no prior problem of this nature. Cobean testified that Boucher had instructed the salesmen not to discuss the Union on the floor. In a statement given to an agent of the Board during the administrative investigation of the case, Cobean had stated that "Boucher told the salesmen not to discuss the Union on the showroom floor and not to let it bother our work." The complaint alleged that the Respondent through Boucher had "instructed its employees to refrain from discussing the Union in the plant." Based upon Cobean's testimony that Boucher's limitation on union discussion related to the sales floor , his statement to the Board agent that the limitation of union discussion was limited to the showroom floor and had been coupled with the injunction that it not bother the salesmen's work, and Grant's testimony that Boucher had stated he did not wish the word "union" mentioned on the floor, I shall recommend dismissal of this allegation of the complaint as I find there was sufficient clarity in Boucher's instructions so that the salesmen could understand that the interdiction of the union discussion was limited to the time they were on the selling floor and was not a general prohibition against such discussion anyplace in G.K.'s premises. There does not here exist an ambiguity in the rule announced by Boucher which could lead to a reasonable interpretation that the salesmen were forbidden to discuss the Union on Respondent's premises. Cf. Fashion Fair, Inc., 163 NLRB No. 22. C. The Discharge of Theodore Cobean 1. The facts of the discharge a. The events of March 14 and. 15, 1968 On March 14 and 15, 1968, a hearing was held on the Union's petition for a representation election to be conducted among the Respondent's selling employees. On March 14, Belovsky, G. K.'s president, testified at length concerning Cobean's alleged status as a supervisor and managerial employee. In his testimony Belovsky emphasized all of Cobean's activities which would remove him from the status of an employee under the Act. At the conclusion of Belovsky's testimony Merlin Griffith, who was appearing on behalf of the Union at the hearing, indicated that he might wish to recall Belvosky after checking out certain information which was at variance with Belovsky's testimony. Sometime during the evening of March 14, while at work at the G. K. showroom, Cobean received a subpena to testify on behalf of the Union on March 15. Cobean showed the subpena to General Sales Manager Boucher and Sales Manager Kraus. When Mr. and Mrs. Belovsky returned to the automobile agency at closing time Cobean overheard Mrs. Belovsky say "that somebody had been stabbed in the back," whereupon Mr. Belovsky advised her to be quiet and said something to the effect that given enough rope "they'd hang themselves." Belovsky claimed that he did not disapprove of Cobean testifying but acknowledged that he had told an employee that he could not understand how a person could testify against him and come back to work. The following day, Friday, March 15, Cobean testified concerning his duties as a G. K. employee. As testified herein by Belovsky, Cobean contended that he was not a manager and controverted certain of the testimony which Belovsky had given the day previous. At the conclusion of Cobean's testimony Belovsky resumed the witness stand and modified certain of the testimony he had theretofore given concerning Cobean's activities as a G. K. employee and the sources of Cobean's income from sales for the Respondent. After testifying Cobean returned directly to the automobile showroom where that evening he was called to Belovsky's office where in the presence of Respondent's president, Kraus, and Boucher, Cobean was informed that his services were no longer required. In response to Cobean's request for an explanation Belovsky explained that Cobean had threatened to kill one of Respondent's employees. Cobean's request for a confrontation with the allegedly threatened employee was refused by Belovsky. Prior to the discharge interview Cobean had heard no word concerning his alleged threatening of another employee. G. K. CHEVROLET, INC. 419 b. Respondent 's reasons for Cobean's discharge Respondent contends that in a discussion at a neighborhood bar on Tuesday, March 12, Cobean, who had been drinking all day, threatened the life of fellow employee Leslie Williams, G. K.'s leasing manager. Williams testified that on the night in question he left work about 9:30 p.m. and in the company of another salesman had gone to Reni's Tavern. When they entered Cobean and a friend were already in the bar and Cobean was quite intoxicated. Williams testified that when Cobean started talking about the Union he said, "Mr. Cobean, I don't care to talk about the Union. I have told you this time and time again . I don't want to discuss it." Thereupon, Williams stated, Cobean became very abusive and Williams in anger said things he should not have said. Sometime in this discussion Cobean allegedly said that he would have the Union take care of Williams. At some point the bartender asked both Williams and Cobean to stop their argument and refused to serve any further drinks to Cobean who left the Tavern. The bartender told Williams that this was not the first time Cobean had been refused drinks at Reni's. Williams stated that he was upset by the incident and after having "another drink or two" left, went to Belovsky's home to whom he reported the incident, and then went home and to bed. As a corroborating witness Respondent called Michael J. Griffin, an automobile salesman employed by another sales agency. Griffin testified that he and a coworker were at Reni's Tavern in March and that three or four men sitting at the bar were engaged in an argument during which they discussed managerial status and their relative sales ability. Griffin stated that the conversation at the bar turned during the course of this discussion to the subject of the Union. One of the participants sought to draw Griffin into the argument but he said that he was a men's clothing salesman and knew nothing about the subject they were discussing . Griffin recalled one of the participants saying he could outsell the other and that the other man had better join the Union "and if he doesn't join the Union, he's going to find himself in a box." Griffin testified that the argument grew hotter and hotter and that finally the bartender refused to serve one of the participants who left and was shortly thereafter followed out by the other. When asked to identify Cobean and Williams, Griffin was not sure where he had seen either of them before and indeed was not sure that he had ever seen Williams before the hearing herein. Finally, Griffin testified "I can't swear or say it was them two men that was arguing that night." Cobean admitted a conversation with Williams at Reni's on the evening of March 12. Cobean testified that he was not working that day and had been drinking since noon. During the conversation, Cobean recalled that Williams stated that the Union was lousy, crooked, and that he wouldn't join. Cobean answered that it was for Williams to decide whether he wanted to join the Union "but if he didn't, without the union , we'd be dead." Following this conversation on Tuesday, March 12, Cobean heard nothing further about the incident until his discharge on Friday, March 15. Belovsky testified that Williams came to his home on March 12 in an upset condition and, in reply to Belovsky's inquiry as to what was wrong, Williams stated that Cobean had threatened his life if he didn't join the Union and that Cobean would get the Union to take care of him. Belovsky testified that he could tell that Williams had been drinking but "not to the extent that he didn't talk intelligently." Belovsky testified that on March 13, the day after Williams came to his home, he called his then attorney and told him of the incident. When the attorney and Belovsky met at the hearing on the representation petition on March 14, the attorney told Belovsky to obtain a written sworn statement and that this could be used to discharge Cobean. After Belovsky left the hearing on Thursday, March 14, he obtained a notarized statement from Williams. Sales Manager Kraus was the notary employed. In another point in his testimony Belovsky stated that he had obtained the statement from Williams on Wednesday, March 13. The notarization of Williams' statement bears the date "3-14-68." It was Belovsky's testimony that although he had decided to discharge Cobean he realized he needed legal advice and the discharge action took place only after his then attorney advised that Williams' statement was strong. 2. Cobean's status as employee Cobean was first employed by G. K. in 1961 about 1 year after the Respondent first went into business. In 1966 Cobean commenced the period of employment with Respondent which ended with his discharge on March 15, 1968. At that time Cobean returned to Respondent's employ as an automobile salesman at the invitation of G. K.'s then general manager. About September 1966 Cobean was made "truck manager" at a weekly salary of $75 plus commissions which was $25 per week more than automobile salesmen were paid. Respondent's president, Belovsky, testified that G. K. does not have "that big of a truck business" and had sold more trucks in times passed. In February 1968 Cobean attempted to give up the title of truck manager and the attendent duties. According to Cobean, he told Sales Manager Kraus that he felt he could make more money if he spent all of his time on the selling floor. Belovsky testified that Cobean's reason for relinquishing the truck manager position was based upon his appointment as a union steward which Cobean felt precluded his continuing as truck manager.' The same day that Cobean attempted to resign his position as truck manager, Belovsky called him to the president's office and told Cobean that he could continue as truck manager or leave G. K.'s employ. Cobean remained as truck manager. Respondent has a number of employees who carry the title of "manager." They are: general sales manager, sales manager, office manager, finance and insurance manager, truck manager, lease manager, parts manager, service manager, and body shop manager. In addition to the foregoing, Belovsky testified that at the time of the events herein there were seven salesmen including the lease manager but excluding the truck manager.' Though carrying the title of truck manager Cobean took his regular turn with the other salesmen on the The facts as to Cobean's duties and status while in Respondent's employ are based upon the testimony of Cobean and Belovsky. Where there is no conflict between the two, I have relied upon a synthesis of their testimony. However, where they are in conflict, I credit Cobean. Belovsky was an unconvincing witness who repeatedly made conflicting statements. Cobean impressed me as being more straightforward. 'Belovsky also testified that there were seven salesmen without the lease manager. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showroom sales floor waiting on retail customers. Belovsky testified that about 80 percent of Cobean's time was spent in waiting on retail trade .4 Cobean received the same commission on retail sales of automobiles as did the other salesmen. It was Cobean's testimony that 90 percent of his income from G. K. in 1967 was realized from the retail sales of automobiles. Cobean did not receive a commission on trucks sold by other salesmen nor did he receive a percentage of profits realized by the truck department . The used-car manager received a commission on the net profits of the used-car department.' Cobean testified that he did not receive a Christmas bonus in 1967 but was told by the body shop foreman that the latter had been paid such a bonus. Belovsky testified that Cobean accounted for about 50 percent of Respondent 's truck sales. Other salesmen could and did sell trucks and when doing so were not required to receive Cobean's approval to complete the sale nor was Cobean's approval necessary before salesmen quoted a price on a truck . If, however, a salesman did not know how to price a particular truck he could ask Cobean for help. Belovsky explained that truck selling is different from selling automobiles as every truck, other than "the average little pickup truck ," is built and suited to the customer's needs. Thus on fleet sales or buses which are custom built to the buyer's specifications the seller must know how to price the items requested and how to ascertain the availability of the optional equipment desired. Cobean testified that if requested to do so by other salesmen he would explain to them the availability and pricing of optional equipment . Such assistance to other salesmen did not include determining trade-in value which responsibility was handled either by General Sales Manager Boucher or Sales Manager Kraus. None of the salesmen reported to Cobean nor did he train other salesmen in the technique of truck selling.' Cobean testified that he had never hired or fired a salesman nor had he recommended such action. Fleet sales of trucks were handled either by a salesman on the floor if the buyer came to the showroom or if the inquiry was made by mail it would be referred to Cobean for answer . Invitations to bid on purchases by political bodies such as villages, counties, police departments , etc. were handled for G. K. by Cobean. He would work out the price, the specifications called for in the invitation to bid, and would prepare a request for assistance from the Chevrolet Motor Company in the form of reduced wholesale costs to G. K. on the items offered in such bids. After Cobean prepared such a request to Chevrolet it was signed by Belovsky. It was Cobean's duty to attend the bid openings and if G. K.,'s bid was accepted, to accept the order for Respondent. Whether or not G. K.'s bid was accepted, Cobean was to prepare a report for the Chevrolet Motor Company listing the bidders and what their bids had been. If the competitor's bid at such an opening failed to meet the specifications called for Cobean was to object on behalf of G. K. On one occasion in 1964 Cobean had made such an objection at a bid opening. All salesmen were assigned offices which differed from those of the managers which had plate glass fronts. Cobean's office did not have a plate glass front. Cobean's 'The hours Cobean spent on the showroom floor may have been equal to those of other sales personnel because he worked longer hours than the other salesman. 'Testimony of Belovsky 'Testimony of Belovsky. office telephone was a simple instrument whereas those of the other "managers" were multilined instruments. All managers, including Cobean, had keys to the building whereas salesmen did not. Manager meetings were attended by Belovsky, General Sales Manager Boucher, Sales Manager Kraus, and the truck and fleet managers. At those meetings the problems of getting more business for G. K. were discussed. Monthly sales quotas for automobiles and trucks were analyzed and methods for disposing of the vehicles discussed . Mid-month meetings considered progress made to date in meeting the monthly sales quotas. Cobean testified that he did not attend all manager meetings as on some occasions he was too busy to attend and at other times he was not invited. He further testified that it was not his responsibility to carry back to the salesmen the sales problems and techniques discussed at these meetings. Cobean placed orders for trucks with Chevrolet Motor Company and maintained records on trucks. Orders for trucks fall into two classes, those ordered for stock and special orders to fill sales to customers. Belovsky testified that in placing orders for trucks Cobean did not have to get his prior approval. Belovsky further testified that on orders for stock the quantities ordered would depend on the season of the year and the waiting time for factory delivery. At all times G. K. maintained a few pickup trucks in stock since, in Belovsky's words, "there are times when you should have more of something and less of something else," Cobean was required to exercise judgment in placing orders for stock. Cobean also placed the orders for trucks sold to customers which required special items from the factory and also ordered such items as a dump body to fill a customer's order. Both Cobean and Belovsky testified that at times Cobean was "in charge" of the store. Cobean testified that such occasions were rare and arose only when neither Belovsky, Kraus, or Boucher were in the showroom. There was no regular period of the day when this would occur. When it did happen Cobean explained he was expected to remain at the showroom. According to Cobean, in all of 1967 there may have been one or two deals to which he placed his name but that in any event all sold orders were checked by management before being forwarded to Chevrolet. According to Belovsky once a week there was a regular night on which the manager was off and when Belovsky worked with Cobean. On that night, Belovsky testified, Cobean would relieve him so that Belovsky could go to dinner. When that occurred Cobean had authority to appraise a trade-in and approve a sales contract. While the deal would be discussed when Belovsky returned to the showroom, G. K.'s president testified that the deal with the customer stood as approved by Cobean. Belovsky testified that Cobean had sold perhaps 25 or 30 cars in his absence. As earlier stated when a conflict arises in the testimony of Belovsky and Cobean I credit the latter. Thus, I find that Belovsky inflated Cobean's authority to operate Respondent's business in the absence of those clearly authorized to manage G. K. and that Cobean's role was of the lesser nature as he had testified. Based on the foregoing credited testimony I find no evidence that Cobean exercised any of the indicia of supervisory status set forth in the Act.' 'Sec. 2 (11). The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend , lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them , or to adjust their grievances, or effectively to G. K. CHEVROLET, INC. 421 While there were those occasions as testified by Cobean when he was "in charge of the store" and he had on one or two occasions approved a sale made by another salesman "[i]t is well established that the sporadic exercise of supervisory authority does not constitute an employee a supervisor within the meaning of Section 2(11) of the Act." Eastern Camera and Photo Corp., 140 NLRB 569, 571. However, while I do not find Cobean to be a supervisor, I conclude that he is a managerial employee whose interests are more closely aligned with those of the employer than the employees'. In reaching this conclusion I note that Cobean prepares and submits bids to governmental authorities for G. K. and regularly orders trucks and truck equipment from the manufacturers, thus committing the credit of Respondent. In ordering the trucks for stock from Chevrolet Cobean exercises independent judgment in determining the quantities and these orders do not require approval from higher management before being forwarded to the supplier. "The Board has consistently found employees with broad authority to pledge their employers credit to be managerial." Eastern Camera and Photo Corp., 140 NLRB 569, 572; Weaver Motors, 123 NLRB 209, 215-216; Sunnyland Packing Company, 113 NLRB 162. While the cited cases are in the representation field and were therefore limited to determining whether the asserted managerial employees should be properly placed within the bargaining unit, the rationale for exclusion was based upon identity of interest with management rather than with those of the employees and resulted in the denial of the benefits of employee status under the Act. 3. Findings and conclusions written sworn evidence to support the allegations against Cobean. Had Belovsky given credence to the threat, rather than viewing it in its proper context of an alcohol befogged exchange, I do not believe he would have tolerated Cobean's presence in his organization after Williams' report of the incident. In sum , I find that Cobean's discharge was occasioned by his giving testimony under the Act. I further find that Cobean's discharge violated Section 8 (a)(1) of the Act.' My finding above that Cobean was a managerial employee with interests more closely related to those of management than to those of his fellow employees does not under established law preclude this finding. Southland Paint Company, 156 NLRB 22, enfd. 394 F.2d 717, 720-721 (C.A. 5).' It is well settled that the statutory rights of rank-and-file employees are violated when they are denied the testimony of supervisors who have knowledge of the facts without the supervisors risking discharge or other penalty for giving testimony under the Act. N.L.R.B. v. Electro Motive Mfg. Co. Inc., 389 F.2d 61 (C.A. 4). I see no distinction between a supervisor and a managerial employee for the purposes of this holding. Indeed, the courts have held that the power of the Board to protect its witnesses should be coexistent with its power to compel testimony. Oil City Brass Works v. N.L.R.B., 357 F.2d 466, 471 (C.A. 5); Pedersen v. N.L.R.B., 234 F.2d 417 (C.A. 2)." As Cobean's testimony at the representation proceeding was compelled by a Board subpena, I view my holding herein as necessary to protect the Board's power to require testimony in its proceedings. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE General Counsel contends and I find that the explanation given by Respondent for Cobean's discharge is pretextual and that the true reason for his termination was Cobean's appearance at the representation hearing and his testifying there in behalf of the Union. In reaching this conclusion I have of necessity chosen between two conflicting contentions. However, because I find that Cobean was fired in part, if not entirely, because of his testimony, I do not preclude a secondary finding that in their drunken conversation on Tuesday, March 12, Cobean as well as Williams said things they should not have said. In concluding that Respondent's termination of Cobean was motivated by its adverse reaction to his giving testimony I give heed to Belovsky's testimony that he could not understand how an employee could testify against him and then come back to work at his establishment. Further, I note Cobean's uncontradicted and credited testimony that Mrs. Belovsky upon being informed of the Union's supbena upon Cobean said that someone had been stabbed in the back whereupon her husband remarked that given enough rope they would hang themselves. I conclude therefore that the asserted great concern about Cobean's alleged threat to Williams is cut from the whole cloth. Williams' demeanor while testifying about the incident at Reni's Tavern was hardly that of a man relating an upsetting occurrence. Further, I do not credit Belovsky's explanation of the delay in discharging Cobean, namely that his then attorney wished to see recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, 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 engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discharged Theodore Cobean, in violation of the statutory rights of its employees, I shall recommend that the Respondent be ordered to reinstate him to his former or a substantially equivalent position of employment without prejudice to his seniority or other rights or privileges and to make him whole for any loss of earnings he may have suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in a manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added 'The complaint (par IX) alleged that Cobean' s discharge was in violation of Sec. 8(a)(1) of the Act. '1 shall however recommend dismissal of the complaint allegation that this conduct violated Sec. 8(a)(3) and (4) of the Act. "See the Trial Examiner's discussion in Valet/ Forge Flag Company, 158 NLRB 1227, 1234-35, Trial Examiner's Decision reversed by the Board on other grounds. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. G. K. Chevrolet, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Professional Salesmen is a labor organization within the meaning of the Act. 3. By engaging in certain described conduct referred to hereinabove in section III, (B), (1), and (C), Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not committed other unfair labor practices as alleged in the complaint. RECOMMENDED ORDER The Respondent, G. K. Chevrolet, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisal should the Union be selected to represent them as their bargaining agent. (b) Interfering with, restraining, or coercing its employees in the exercise of their rights set forth in Section 7 of the Act or in the vindication of those rights through the processes of the Board by discharging, or threatening with discharge or other loss of employment rights, employees, supervisors, or managerial employees who give testimony under the Act to the Board or its agents in the course of investigation or other Board processes. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Theodore Cobean 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 Respondent's discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to analyze the amount of backpay due and all other rights under the terms of this Recommended Order. (c) Notify Theodore Cobean 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 and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (d) Post at its premises in Downers Grove, Illinois, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 13, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not 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 Appeals 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 said Regional Director, 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 National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with reprisal if the Union is selected to represent them as their bargaining agent. WE WILL NOT interfere with our employees' rights to engage in or refrain from engaging in union activity or their right to the protection of the National Labor Relations Board by threatening discharge or discharging any employees , supervisors, or managerial employees who testify at a Board hearing. WE WILL NOT in any other manner interfere with our employees' rights to self-organization. WE WILL offer his job back to Theodore Cobean and give him backpay from the day he was discharged. WE WILL notify Theodore Cobean 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 and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. G. K. CHEVROLET, INC. Dated By (Employer) (Representative) (Title) G. K. CHEVROLET, INC. 423 This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, 881 U.S. from the date of posting and must not be altered , defaced, Courthouse and Federal "Office Building, 219 South or covered by any other material. Dearborn Street, Chicago, Illinois 60604, Telephone If employees have any question concerning this notice 312-353-7572. or compliance with its provisions , they may communicate