Graham Ford, Inc.

GRAHAM FORD, INC. 617 Graham Ford, Inc. and Richard J. 'Nolan, Case 3-CA-3593 November 17, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 23, 1969, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as forth in the attached Trial Examiner's Decision Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and Respondent filed a brief in support of the Trial Examiner's Decision 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 that 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 this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 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, and, hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner This case, heard at Albany, New York, on April 18 and 19, 1969, pursuant to a charge filed September 23, 1968,' and a complaint issued February 14, 1969, presents the question whether Graham Ford, Inc (herein the Respondent or Company), violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein the Act), when it discharged its employee Richard J Nolan on September 19 In its answer, the Respondent admitted the jurisdictional allegations of the complaint, but denied that it had committed any unfair labor practices At the hearing, all parties appeared through counsel and were afforded full opportunity to be heard, and to examine and cross-examine witnesses At the close of the hearing, all parties waived oral argument Helpful posthearing briefs have been received from counsel for the General Counsel and counsel for the Respondent 'All dates hereinafter refer to the calendar year 1968, unless otherwise specified Upon the entire record in the case,' and from my observation of the demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation, is engaged at Schenectady, New York, in selling and distributing automobiles, trucks, and related products During an annual period the Respondent, in the course and conduct of its business operations, sells and distributes products valued in excess of $500,000, and receives goods valued in excess of $ 50,000 which are transported to its place of business in New York directly from States of the United States other than the State of New York I find, as the Respondent admits, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act ' iI THE LABOR ORGANIZATION INVOLVED . Capital District Automobile Salesmen's Association, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES As previously noted, the only issue in this case is whether the Respondent, by discharging its employee Richard J Nolan on September 19, discriminated to discourage union membership in violation of Section 8(a)(3) of the Act At all times material, Nolan worked as an automobile salesman for Respondent from the time of his employment in February 1967 until he was discharged He was active in the Union from the time of its inception and was discharged along with nine other salesmen in August 1967 for discriminatory reasons ' Nolan also participated along with other union members in a strike called in April assertedly because of the Employer's refusal to bargain Apparently after this incident, the Company and the Union commenced negotiations which eventually led to a collective-bargaining agreement, although such agreement occurred subsequent to Nolan's discharge In June, the Employer by its President Helfrich unilaterally announced a change in the bonus plan for salesmen Theretofore, the bonus was based upon gross profit from the sale of automobiles, both new and used Helfrich announced at a sales meeting in June that this plan would be changed to one based upon. the number of units which a salesman sold (each salesman having been allotted a certain number of units based upon evidence of past abilities) including the sale of a truck (or trucks) as a qualifier That is to say, the sale of a truck was an apparent condition of the salesman receiving a bonus irrespective of whether the salesman met his automobile quota At the meeting, Nolan pointed out the difficulty 'Attached to his brief, and similarly served on all parties, is General Counsels Motion to Correct Transcript of Proceedings Having received no objections, the Motion is granted An additional correction should be noted p 160, 11, 13 and 17, change September 18 to September 19 The Board has previously asserted jurisdiction over this Employer See Graham Ford. Inc 172 NLRB No 50 'This background information is gleaned from the Board's decision in the prior case involving this Employer, heremabove referred to (172 NLRB No 50), of which I have taken judicial notice pursuant to the request of counsel for the General Counsel All dischargees were reinstated in December 1967 179 NLRB No. 99 618 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD which the Employer had experienced respecting the availability of trucks due to a shortage of engines, and Helfrich replied that, if the vehicles were not available, the Company would rescind the qualifier However, Nolan was apparently not satisfied, and after the meeting discussed the matter with Ernest Doin, president of the Union and a member of the bargaining committee (Nolan was neither an officer of the Union nor a member of the bargaining committee, but was on the executive board of the Union) The two men had a brief meeting with Helfrich in which they advised that they did not think it was proper for the Company to unilaterally change the type of pay system while a contract was being negotiated (The foregoing is not alleged a violation herein ) Helfrich replied, in essence, he had authority to change the plan any way he wanted to regardless of how the members of the Union felt about it Contract negotiations apparently proceeded during the summer, and on or about August 30 Amedeo Piccolod then temporarily vice president of the union, and several other members approached President Helfrich with a suggestion to have an open meeting respecting the present status of the negotiations Accordingly, such a meeting was held on the showroom floor on August 30, at which substantially all employees were present ' At the August 30 meeting, Helfrich read off the proposals one by one, indicating agreement or disagreement According to Nolan's testimony, when Helfrich said there would be no paid holidays, Nolan advised that Helfrich had already agreed to pay for national holidays Whereupon, Helfrich became angry and said "What are you trying to do, put me out of business" I can't buy that " With respect to the issue of vacation pay, Helfrich did not include in the computation of average earnings, upon which vacation pay was based, the bonuses which these salesmen received, contending that such bonuses were in the nature of a gift Nolan insisted the bonuses were earned and should be included in the computation of average earnings Whereupon, Helfrich, after discussion with his advisors, -agreed During this meeting, . the issue of the bonus plan was raised again (apparently by Nolan) to advise Helfrich that he had sold two trucks in August which were unavailable for delivery because of problems at the factory, thereby disqualifying him from a bonus even though he had met his quota with respect to automobile sales He reminded Helfrich of the latter's promise that if the trucks were not available the Company would not require them to qualify for the bonus However, Helfrich denied making the promise, whereupon, Nolan, becoming "a little mad," reverted back to his complaint that the plan had been made with no prior consultation with the Union and that it was still a verbal matter not having been reduced to writing that it was a "Mickey Mouse plan in a sense " At this point, General Manager Neely said, "You have an awful lot to say I don't 'want anymore of your aggravation," and left the showroom ' General Manager Neely maintains on a bulletin board in his office a monthly running total of automobile sales by each of the salesmen On September 18, Nolan noticed an apparent discrepancy on the board with respect to the number of sales that he had made during that month `The foregoing finding is based upon the testimony of Nolan, Helfrich not being called as a witness At that time the Employer employed approximately 15 salesmen of which about I I or 12 were union members 'The foregoing findings are based upon the uncontradicted testimony of Nolan, which I credit That is to say, the board showed only four units sold by him whereas he claimed six When he brought the matter to Neely's attention, the latter asked him to bring in his records and cross-check them, which they did It appears that Nolan had sold two cars on the last day or two of August which had not been, in fact, delivered until September, and Neely had placed the sales in August Nolan claimed that the credit for such sales should have been placed in September since that was the month in which the cars had been delivered At this point the testimony of the two men differs rather widely According to Nolan's testimony, Neely explained that the two units had been pushed back into August business to meet a sales quota which the Company had with the Ford Motor Company Nolan was agreeable for Neely to do this so long as he (Nolan) received credit in the month when the units were delivered Nolan claimed that this was the way it had been done in the past According to Nolan, Neely "got hot with that and got up and walked out and I followed him out and he turned and said, `You're a liar, you can't prove that "' He had no more to say with Neely at that point, but discussed the matter with two salesmen on the floor A short time later, Helfrich came through the showroom and Nolan inquired of him as to the proper time for receiving credit for the sale of units when they are sold or when they are delivered When Helfrich replied the latter, Nolan told Helfrich of his conversation with Neely, after which Helfrich went into Neely's office and had a conversation According to Nolan, that ended the occurrences that day On the other hand, Neely testified that Nolan wanted the two August deals written in September since Nolan could not make the August bonus in any event, and that Nolan had accused him of trying to change sales dates around to suit himself This accusation admittedly made Neely quite "hot," and he replied, "you had better be able to prove that You're talking on both sides of your mouth " Neely then left to appraise an automobile Gary Berard was a salesman for the Company on, September 18 He testified that he noticed Nolan and Neely in a discussion in the latter's office and, when Nolan left, Berard went in Neely's office and said, "Jim," when all of a sudden Neely got out of his chair and went out of the office Nolan was standing in his cubicle and, as Neely was leaving, accused the latter of being a thief or a cheat Neely retorted that "that will be enough of that," but Nolan kept talking and accusing Neely of juggling figures and stealing from the men and Neely kept saying "shut up " Leo Chalachanis, another of the Company's salesmen, testified that on September 18 he heard Nolan accuse Neely of attempting to cheat him and that Neely turned around, pointed his finger at Nolan, and said, "that's enough of that "I Joseph Cahill was a used-car salesman for the Company on September 19' According to Cahill's On cross-examination of both Berard and Chalachanis, the General Counsel showed that their testimony at the hearing differed in some respect from that given in the prehearing investigation of this case However, their demeanor as witnesses was impressive , they answered questions candidly and forthrightly, and their explanation of any discrepancy was reasonable , Both men were and are union members, so that they do not possess an antiunion bias Accordingly , I credit their testimony as presented at the hearing 'Respondent ' s used-car lot is located approximately 2 miles from the main showroom He and Ralph Brundo, another salesman , and Don Maynard , the used -car manager and an admitted supervisor, were the Respondent's only used-car salesmen at that time GRAHAM FORD, INC. testimony, Maynard called him and - Brundo into Maynard's office at the used-car showroom during the morning of September 19 and told them that he had spoken with General Manager Neely that morning, the latter had stated that he (Neely) was going to give Nolan a letter and that Neely hoped that Nolan would "answer him back" so that Neely would have justification for firing him According to Cahill, this statement of Maynard constituted the whole conversation among the three men, there being no response by either him or Brundo i" Later in the afternoon, Maynard advised the two salesmen that Nolan had in fact been fired and that, if they wanted to do him a favor, they could take up a collection for him Maynard denied the first conversation in torn and recalled only that-during the afternoon of September 19 he advised Cahill and Brundo that Nolan was no longer with the Company Maynard acknowledged that he had talked with Neely during the morning and that the latter had showed Maynard the letter which he intended to give to Nolan but there was no particular conversation respecting it " On September 19 Nolan arrived at work at his scheduled hour -- about I p m - when Neely came into his office and handed him a letter, as follows September 18, 1968 Richard Nolan Dear Mr Nolan You are fully acquainted with the rules , regulations and policies of this company During your term of employment, you have repeatly [sic] been late for your floor time and late to sales meetings On Sept 9 , 1968 you failed to be at the sales meeting on time, and again on Sept 16 , 1968 you failed to be at the sales meeting on time On each of these occasions you were suspended from work for two days, a total of four days suspension thus far this month This is to inform you that your poor attitude, and your tardiness will no longer be tolorated [sic] Any further abuse of company rules will result in your emmediate [sic ] discharge Sincerely, /s/ James Neely James Neely, General Sales Mgr As was the case the previous day, the two men's version of what took place following Neely's delivery of the letter to Nolan varies widely Nolan testified that he questioned Neely as to what was meant by the suspension from work on September 9 since in fact he received an excuse for being late to that sales meeting because he was busy with a customer and received Neely's permission (Neely denied that Nolan was excused from the meeting but acknowledged that he did not enforce the suspension because he needed salesmen ) There is apparent agreement that Nolan did receive a suspension for being late to the '°Brundo was not called as a witness, although it was not shown that he was unavailable ''Maynard testified that it was a customary thing for him to be advised respecting any reprimands to be given employees since , as sales manager, his responsibilities covered both locations although he normally operated from the used -car lot After due consideration of all credibility factors, including demeanor, I am inclined to credit Maynard over Cahill The recount of the conversation as testified to by Cahill simply does not ring true, and Brundo was not called as a corroborating witness even though it was not shown that he was otherwise unavailable In any event , even were I to credit Cahill, it would not affect my ultimate disposition of the issue of discrimination, as set forth infra 619 September 16 meeting Nolan inquired what was meant by "poor attitude", i e , did it relate to-his questioning Neely respecting the bonus Neely responded, "you, called me a thief yesterday on the showroom floor" to which Nolan responded, "I didn't call you a thief and never intended the same " Neely terminated the interview by stating "I just don't need your aggravation around here anymore Give me the keys to your demonstrator, you're finished "i I Immediately following his discharge, Nolan proceeded to relate the circumstances to Ernest Doin, president of the Union The latter, in the company of vice president of the Union, Viccolo, then called on Vresident Helfrich in an effort to have the discharge rescinded Helfrich called Neely into the office and Neely said that he would not rescind the discharge because Nolan had talked to him using abusive language and implying that he was a thief After Neely left the office, Viccolo and Doin remained with Helfrich, arguing that the punishment was too severe and requested that it be reduced Helfrich stated that he would not countermand any orders given by his sales manager but that he-would rehire Nolan if Neely would agree Accordingly, Piccolo and Doin proceeded to inquire of Neely whether he would agree to rescind the order of discharge, but the latter refused stating that he would not retain in the Respondent's employ any employee who talked to him in the manner, and engaged in the name calling, which Nolan did Analysis and Concluding Findings The General Counsel's theory of violation in this case, as expressed in his brief (page 5) is that "Respondent, inveighed with its hostility towards the active voices of the union, deliberately provoked the situation which gave rise to Nolan's alleged insubordination and then seized upon it as an excuse for discharging Nolan The focal point of the pretext for the discharge is Nolan's leadership in objecting to the bonus plan instituted in June 1968 and again when Respondent sought to include it within the collective-bargaining agreement being negotiated Sales Manager Neely took offense to Nolan's characterization to the plan as a `Mickey Mouse' plan and subsequently took steps to eliminate this antagonist " I cannot agree that there is substantial evidence in the record considered as a whole to sustain the General Counsel's burden on this issue Rather I find in agreement with the Respondent that the compelling reason for the discharge was the personal animosity which arose between Nolan and his immediate supervisor It is true that Nolan was quite vociferous in his opposition to the bonus plan, and his objection was raised initially at the June meeting in his capacity as a member of the Union's Executive Board to the Respondent's unilateral change in this condition of employment without consultation with the Union But his continued objection "Neely's version is that , after Nolan finished reading the letter, Neely advised that the letter meant exactly what it said and that , if Nolan further abused company rules, the result would be immediate discharge After that, Nolan brought up the bonus question again to which Neely responded that he had been through that before , whereupon , Nolan accused Neely of trying to defraud him of his bonus ( using an obscenity ) 'At that point, Neely advised that Nolan was through that he had taken his abuse the first time but he was not going to again The credibility issue here has been exceedingly difficult Both men appeared rather volatile , and I suspect that the actual truth of what occurred lies somewhere in between the two versions of the conversation In any event, as my analysis , infra indicates, I believe that the ultimate issue of discrimination may be disposed of without specifically making a determination of the credibility issue as pertains to this last conversation between Nolan and Neely 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the plan voiced at the August 30 meeting took on a more personalized note, as he made particular reference to his sale of two trucks in August which did not count towards his bonus' because of inability to deliver them He concededly irritated and antagonized General Manager Neely at that time by his reference to the bonus plan as a "Mickey Mouse" plan since it was apparently Neely's idea While this occurred at a meeting which was called to discuss the progress of the negotiations, it is apparent that Nolan raised the issue to assuage a personal grievance it is to be recalled that Nolan was not an officer of the Union nor a member of the negotiating committee, and he was not thereafter able to interest the committee in taking up the cudgel of what he doubtless considered a major issue " As far as the record shows, nothing transpired from August 30 until Nolan's meeting with Neely on September 18, which was concerned with the asserted discrepancy in Nolan's September sales" It.was, of course, Nolan who initiated this conversation, and it is apparent from the credited testimony of employees Berard and Chalachanis that both Nolan and Neely became quite loud and argumentative during the course of their conversation and that at the end of it Nolan accused the other of being a fraud and a cheat It was on that day that Neely drafted the letter which (according to Cahill's testimony) he hoped would provoke the insubordination needed to provide an excuse for Nolan's discharge I have, for reasons stated above, discredited such testimony But assuming its accuracy, it does not negate the predominantly personal motive of Neely That is to say, I am convinced, in the light of all circumstances, that Neely's reaction to Nolan's vigorous and vocal presentation of his grievance was as a person and employee and not as a union member In reaching such conclusion, I have considered as particularly significant the following factors I There is a decided lack of evidence of antiunion animus in this record As respects this element of proof, General Counsel relies, as he must, on the evidence of unfair labor practices engaged in by this Respondent in the prior case (172 NLRB No 50) of which I have taken judicial notice However, as General Counsel concedes, the Respondent has effected compliance with the Board's Order in that case, and the record shows that the Respondent and the Union have consummated a collective-bargaining agreement Under these circumstances, the former case is, indeed, a slender reed on which to rely " It is true that there is some evidence in the instant record which indicates that the Respondent still does not "Nolan testified that, when he spoke with Neely on September 18 regarding the bonus , he was speaking not only for, himself but for other salesmen as well However, he did not mention such "other salesmen" during the conversation accordingly , I attach very little probative weight to this kind of self-serving testimony "Nolan testified that around the first of September he spoke with both Neely and Helfrich concerning his August bonus but, receiving no satisfaction from them , let the matter drop "in this connection , the language of the court in N L R B v Park Edge Sheridan Meats Inc 341 F 2d 725 (C A 2), seems appropriate "But when a party that has erred in the past places itself in the hands of capable counsel who gives reasonable advice for the future , and there is a significant improvement in its conduct, it ought not be viewed as having such a propensity for sin that every episode is given the worse interpretation , or be condemned by indiscriminate repetition of the phrase that its conduct `must be accessed against the background of its earlier unfair labor practices See also Tennessee Packers , Inc From Morn Divicion , 155 NLRB 206, 208 embrace the Union with open and loving arms,'" but this, of course, is not required by the statute As applied to the issue in the instant case, the statute only requires that the employer not treat an employee differently because of union proclivities, and it is to be recalled "the discharge of an employee is ordinarily a matter within management's prerogative and, consequently, an unlawful discharge is not lightly to be inferred, 'V L R B v McGahev, 5 Cir 1956, 233 F 2d 406, 38 LRRM 2142 "" 2 It was Nolan who again raised the bonus issue as respects his personal complaint in the September 19 interview with Neely which led directly to his discharge, since the letter given him by Neely contained only a warning 3 There is nothing in the record to taint Helfrich's postdischarge offer to reinstate Nolah' if Neely would approve, it being perfectly natural and prudent for the president of the Company not to go over his sales manager's head respecting such an individual matter This position certainly tends to show that the discharge was essentially a personal decision of Neely's and did not represent a policy of the Respondent 4 Neely's highly emotional temperament, as reflected by his demeanor on the witness stand, indicates his inability to withstand criticism and misconduct of the type attributed to him by Nolan, making the conclusion all the more tenable that it was the personal accusation of fraud and cheating and not the posture of Nolan qua union member that ignited the discharge In sum, and paraphrasing the language of the Board in a recent case," it seems to me that it may be as fairly inferred that Nolan was discharged for irritating his Employer as for any union-connected considerations, and that Neely was, in consummating the discharge, reacting angrily to an employee thought to be speaking out of turn rather than an employee defending a union position Accordingly, I find and conclude that the General Counsel has failed to sustain his burden of proof in this case, and will recommend that the complaint be dismissed in its entirety '" CONCLUSIONS or LAW I The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Fhe Union is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent has not engaged in the unfair labor practices alleged'in the complaint RECOMMENDED ORDER It is ordered that the complaint be, and the same is hereby, dismissed in its entirety "This evidence is (I) the statement of Helfrich at the June meeting that the new bonus plan would stand irrespective of how the union members felt, and (2) the statement of Helfrich in July to Nolan (re Doin's 2-week suspension) that he did not like to see Nolan "get involved with the likes of Doin and didn't like the idea that [he] was mixed up with the Union" Indeed, on that occasion, Helfrich indicated that he liked Nolan and thought him to be a good salesman "Cited in N L R B v Buddv Schoellkopf Producic, Inc , 410 F 6d 82 (C A 5) "Ramona 'c Mexican Food Products, Inc 175 NLRB No 27 "In his brief, General Counsel cites New York Trap Rock Corp , 148 NLRB 374 However, that case may be distinguished on the ground that the alleged discrimmatee there was discharged for filing grievances under a collective-bargaining agreement which, of course, is not the case here Compare Jackame'c Reinforcing-Erecrorc Inc 158 NLRB 99