Lang Chevrolet Sales, Inc.

LANG CHEVROLET SALES 133 Lang Chevrolet Sales, Inc. and Local 374, Bakery and Confectionery Workers' International Union of America, AFL-CIO. Case 9-CA-6186 July 11, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Since the hearing, I have received and considered briefs from the General Counsel and the Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT On February 15, 1972, Trial Examiner William F. Scharnikow issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Lang Chevrolet Sales, Inc., Fairborn, Ohio, its officers, agents, successors , and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOw, Trial Examiner: The com- plaint as amended at the hearing alleges, but the answer of the Respondent, Lang Chevrolet Sales, Inc., denies, that the Respondent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act, by threatening to discharge any employee who instigated union organizing activity, by creating the impression among its employees that it was engaging in surveillance of their union activities, by interrogating an employee concerning his union activities, and by discharg- ing employee Jerome Krug on or about March 23, 1971, because of his membership in, sympathy for, and activities on behalf of Local 374, Bakery and Confectionery Workers' International Union of America, AFL-CIO, herein called the Union. Pursuant to notice, a hearing was held at Dayton, Ohio, on July 7, 1971, before me. The General Counsel and the Respondent appeared by counsel and were afforded full 198 NLRB No. 15 The Respondent, Lang Chevrolet Sales, Inc., is an Ohio corporation engaged in the selling and servicing of new and used automobiles at a salesroom and used-cars lots, designated as lots I and 2, in Fairborn, Ohio, which is near Dayton, Ohio. During the 12 months preceding the issuance of the complaint, the Respondent sold goods of a value in excess of $50,000 to nonretail firms in Ohio each of which, in turn, during the same period, sold and shipped goods of a value in excess of $50,000 directly to customers outside the State of Ohio. During the same 12 months, Respondent's gross sales exceeded $500,000. I find that the Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act to entertain jurisdiction in the present case. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Local 374, Bakery and Confection- ery Workers' International Union of America , AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The central figure in the present case is Jerome Krug who was employed by the Respondent as a used-car salesman from mid-December 1970, until the latter part of March 1971. The issues are whether (1) the Respondent interfered with the union organizational activities of its salesmen led by Krug in February and March 1971, and (2) the Respondent discharged Krug on or about March 23, 1971, because of these activities (as the complaint alleges) or (as the Respondent contends) because of his poor sales record, his apathetic attitude toward his work, and his failure to take prompt, energetic steps to repossess a used car sold and delivered by him without provision for the financing of the unpaid balance of the purchase price. B. Krug's Employment by the Respondent and His Union Activities For 12 years, Jerome Krug had been a used-car salesman employed at different times by various automobile dealers, other than the Respondent, in the Dayton, Ohio, area. For about 2 years Paul Donovan, the Respondent's used-car sales manager, had sought to hire him and in December 1970 he succeeded. From that time until he was discharged by Donovan on or about March 23, 1971, Krug worked as a used-car salesman for the Respondent with two other salesmen (Roy Fannin and John Riffe) on lot 2 under 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David Stockton, the manager of that lot. During this same 3-month period, the Respondent employed at first eight and then seven other used-car salesmen on its lot 1, which was located next to its salesroom and office about 3 miles from lot 2. All the used-car salesmen were paid a monthly draw of $300 against unit and percentage commissions on their sales. In performing their services for the Respondent they were subject to supervision (in descending degree of control) by General Manager Don Drury, Assistant General Manager Jack Hulesman, New-Car Sales Manag- er Luce, Used-Car Sales Manager Paul Donovan, and David Stockton, the used-car sales manager of lot 2. In the beginning of February 1971, Roy Fannin and Krug, two of the three salesmen on lot 2, discussed the possibility of organizing the used-car salesmen and, at a meeting they thereafter had with Teamsters Representative Dick Lloyd on Sunday, February 14, which Fannin had arranged, Lloyd gave the two men Teamsters authorization cards and told them that if they could get the cards signed by a majority of the salesmen in the Dayton area or by a majority of the salesmen of any individual dealer, the Teamsters would "welcome" them. Krug thereupon spoke to a number of the used-car salesmen employed by other dealers, including James Carroll, a salesman at Penny's Oldsmobile, and subsequently visited the business premises of the dealers to get their used-car salesmen to sign Teamsters cards. As a result, there were a number of meetings held at the Teamsters hall in Dayton which were attended by Dayton used-car salesmen. At the first of these meetings, which was held on February 17 and was attended by 15 salesmen, Krug met the salesmen at the door, spoke with them, and collected some cards. At several later Teamsters meetings, according to Carroll, who testified he attended 4 or 5 of them, almost 100 salesmen attended. How many Teamsters cards were actually signed does not appear from the record. In any event, the Teamsters told the salesmen that, within a few weeks after consideration of the matter by its International, the Teamsters would tell the salesmen whether it would represent them. On March 17, Teamsters Representative Lloyd told Krug by telephone that the Teamsters would not accept the Dayton salesmen because, from its experience, it felt that automobile salesmen generally did not support unions after the unions had gone to the expense of organizing them. Krug immediately telephoned James Carroll, the Penny Oldsmobile salesman, who thereupon arranged a meeting that evening with Cletus Mitchell, a representative of the Union which eventually filed the unfair labor practice charges in the present case. Accordingly, Krug, Carroll and three other salesmen met that night in Dayton with Mitchell and Peter Rakrey, the Union's attorney, from whom they obtained authorization cards on the assurance that if 51 percent of the salesmen signed the cards, the Union would undertake to represent them. On the following morning, March 18, Krug saw Fannin and Riffe, the other two salesmen on Respondent's lot 2 and after explaining to them what was happening, gave each of them some of the Union's cards to get signatures. Within the next few days the Union held two meetings for the Dayton salesmen at its hall. At the first meeting on Friday night, March 19, 50 salesmen attended. Krug collected signed union cards and had additional cards signed as the men came in . During the meeting Krug sat with Attorney Rakrey on the rostrum and separated the cards according to the dealerships employing the various subscribers. The second union meeting for the salesmen-also attended by Krug-was held on Sunday afternoon, March 21, 2 days before Krug was discharged. C. Evidence Concerning the Respondent's Knowledge of, and Interference With, the Salesmen's Union Activities The Respondent's managerial and supervisory represent- atives were certainly aware of the Teamsters organizational campaign in February 1971. Krug spoke about it to Lot Manager David Stockton and invited Stockton to one of the Teamsters meetings. General Manager Don Drury and his assistant, Jack Hulesman, also knew of the Teamsters activity, for, as Drury testified, Hulesman told him in a telephone conversation while Drury was on a February vacation that there was union activity among the used-car salesmen in the Dayton area and, upon Drury's return to Dayton, he learned that the Teamsters drive was common knowledge among the members of the local automobile dealers' association. Used-Car Sales Manager Paul Dono- van also admitted that he, too, had learned of the Teamsters drive among the salesmen. On three occasions within several days in the latter part of February, Assistant Used-Car Manager Philip Kendall and Assistant General Manager Hulesman questioned and made remarks to used-car salesmen which the General Counsel contends not only interfered with the Teamsters campaign and therefore constituted unfair labor practices within the meaning of Section 8(a)(1) of the Act, but which (in Kendall's case) amounted to a threat that the Respondent would discharge union organizers , and (in Hulesman's case) showed that Hulesman , like Stockton, knew or believed that Krug was involved in the Teamsters activity. Before considering the details of the evidence concerning these three incidents involving Kendall and Hulesman, it should be noted that, with the possible exception of these incidents and Krug's eventual discharge, Krug and the other witnesses at the hearing agreed that the Respondent generally presented a correct, "hands-off" attitude toward the unionization of its salesmen. The first of the three incidents took place on or about February 20 during a friendly visit made by James Carroll to Assistant Used-Car Sales Manager Philip Kendall at the latter's office at Respondent's lot 1. As already found, Carroll was the Penny used-car salesman who was then engaged with Respondent's salesmen, Krug and Fannin, in attempting to organize the automobile salesmen in the Dayton area for the Teamsters. Kendall testified that Carroll started talking "about a union being organized amongst the salesmen" but Carroll testified, and I credit LANG CHEVROLET SALES his testimony and find, that Kendall said, "Hey, I hear that you guys are starting a union in Dayton." In any event, both men agreed in their testimony and I also find, that Kendall told Carroll in substance that if he were the "boss," he would discharge "the instigator of the union."' Carroll, though not an employee of the Respondent, was engaged with some of the Respondent' s salesmen in point organizational efforts to establish the Teamsters as the collective-bargaining representative of all the automobile salesmen in the Dayton area, including the salesmen of the Respondent. Any interference by the Respondent with these organizational activities, even though exerted against and through Carroll, would therefore have been an unfair labor practice within the meaning of Section 8(a)(1) of the Act. But Kendall, despite his title as "assistant used car sales manager," was neither a supervisor nor a managerial representative for whose statements to employees the Respondent could be held to be responsible. For the record shows that Kendall's job was merely to make wholesale purchases and sales of used cars for the Respondent's salesmen or its other employees nor any power to discharge them. Contrary to the General Counsel's position and the pertinent allegation of the complaint, I conclude that the Respondent was not responsible for Kendall's interroga- tion of Carroll concerning the Teamsters activity nor for his warning Carroll that, if any of the Respondent's salesmen were engaged in this activity, they might be discharged. Accordingly, I dismiss the allegation of the complaint that the Respondent thereby committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. About the time Kendall spoke with Carroll, Jack Hulesman, the Respondent's assistant general manager, called salesman John Riffe into his office and had a conversation with Riffe in the presence of New-Car Sales Manager Luce about a number of matters including the Respondent's health and insurance plans. Riffe had joined the Teamsters. Hulesman asked Riffe whether he "had been approached to loin the Teamsters Union" and Riffe said he had attended a couple of meetings. Hulesman asked "What would the salesmen gain by having a union" and Riffe said he "understood they would get a good retirement program." Hulesman said the Respondent had a retirement program. These findings are based on Riffe's testimony which I regard as credible.2 But I also find upon Hulesman's testimony that he told Riffe it was entirely up to Riffe whether he wanted to answer Hulesman's question that he did not ask Riffe whether Riffe or any of the other employees of the Respondent had joined the Union. In agreement with the General Counsel, I find that notwith- standing Hulesman's telling Riffe that the latter need not answer Hulesman's questions about whether he had been approached by the Teamsters, the mere question in itself, put to Riffe as it was during the organizational stages of the Teamsters activity without a specific assurance that the Respondent would not take any action against employees who might be participating in the activity, was unjustified i Kendall admitted in his testimony that he told Carroll that "if I was the boss and had anything to do with it the man that was the instigator of the union was the man that I would relieve of his duties " According to Carroll's testimony, Kendall told him that "if I were the used car manager , I would stop [union organization ] I'd fire everybody involved." 135 and coercive and such an interference with the organiza- tional rights of the employees as to be an unfair labor practice within the meaning of Section 8(a)(1) of the Act. On the following day-apparently on February 22-Assistant General Manager Hulesman held a meeting of the used- and new-car salesmen, during which Hules- man told them he had heard a rumor that the salesmen were being organized. He said that the salesmen "should take a look at both sides" and not decide what to do too quickly. He pointed out that without union representation, the Respondent had granted employee "benefits" includ- ing a pension plan of which, to his surprise, some of the men did not know. According to Hulesman, this was apparently because there was a "waiting period" which the Respondent's business manager should have explained when new men were hired and were given their tax withholding authorizations and papers relating to hospital insurance. In the course of his remarks, Hulesman criticized various union pension funds on the basis of what he knew of them, saying in substance that they could not do too much for the salesmen, that in any event they were based upon the employers' contributions rather than the dues paid to the unions, that the Teamsters president but not the Respondent's president was in jail, and that he understood that the union pensions would be reduced by the amounts annuitants would eventually receive in social security payments. In contrast, Hulesman urged the salesmen to consider their alternative: "First of all find yourselves a good dealership, stay with that dealership, your return customers will provide a nice income for you." He told the men in effect that by following this course rather than jumping around from job to job, they could build up "a good strong retirement ... over a period of years." In this connection, Hulesman asked salesman Riffe if he could use him as an example and, upon Riffe's consent, he pointed out the number of different employers for whom Riffe had worked. According to the testimony of salesman Jerry Krug, who attended the meeting, Krug nodded his head in assent to one of the points made by Hulesman, whereupon Hules- man said to him, "Jerry, it seems like you know all about it." Hulesman denied having made any such remark to Krug. He testified, however, that Krug told him during the meeting that there was a union meeting "coming up" that Krug asked whether he should attend it, and that Hulesman replied, "Well, certainly. Why not? You're twenty-one and you can do anything you want to." On the basis of this evidence, the General Counsel makes no contention that Hulesman's general remarks at the salesmen's meeting, so far as they were merely critical of unions, constituted an unfair labor practice. He does contend, however, that they indicated the Respondent's general attitude of opposition to the unionization of its salesmen which must be considered in connection with Krug's discharge. In this, I agree.3 But, upon his view of the evidence, the General Counsel makes the additional contention that by his remarks in speaking specifically to Z Hulesman testified that he asked Riffe whether Riffe "had heard rumors that in the Dayton area some of the salesmen were trying to organize a union " 3 Hendrix Mfg Co v N L R B, 321 F 2d 100, 103-104 (C A 5) 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riffe and Krug who were in fact engaged in the Teamsters organizational activity, Hulesman "conveyed the impres- sion that [their] union activity [was] under surveillance," and thereby interfered with this activity and committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. I reject this contention. Hulesman's interrogation of Rifle the preceding day has already been found to have been an unfair labor practice but, as I have found, Riffe in answer to Hulesman's questions had given Hulesman no basis for believing that Riffe was engaged in the Teamsters activity. With respect to Krug, I credit Hulesman's denial that he made the comment during the meeting "Jerry, it seems like you know all about [the union activity]." But even had Hulesman made such a remark, according to Krug's testimony it was prompted by Krug's nod of assent to one of Hulesman's comments, and would not have warranted the sinister implication urged by the General Counsel that Hulesman had the union activities of Krug or any of the other salesmen of the Respondent under surveillance.4 For these reasons, I will dismiss the allegation of the complaint that Hulesman created the impression that he had Krug's and the other salesmen's union activities under "surveillance" and thereby committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. But Hulesman's testimony, that Krug told him during the salesmen's meeting there was to be a union meeting and asked whether he should go to it, furnishes a clear basis for a finding-which I make-that Hulesman at least at that point became aware of Krug's involvement in the union activity. As I have already found, the Teamsters refused to undertake to represent the Dayton salesmenI and in March Krug and Carroll began organizing for the Union which eventually filed the charge in the present case. According to Krug's uncontradicted testimony, which I credit, on Thursday, March 18, Krug told David Stockton, manager of Respondent's lot 2, that, although the Teamsters would not represent the salesmen (as Krug had earlier informed Stockton), the Charging Union would undertake their representation. On March 23, 5 days after Krug had given this information to Stockton and after Krug had in the meantime organized and attended two meetings of the salesmen at the Union's hall, Used-Car Sales Manager Donovan discharged Krug. As I have noted, Donovan admitted that he had known of the Teamsters organizational activity among the salesmen. But Donovan testified in substance, without indicating the basis of his belief, that at the time he discharged, Krug on March 231 he believed that there was no longer any union activity among the salesmen since, as he told Krug when he discharged him, he "thought the union [i.e., the Teamsters] didn't go in here." Donovan also denied that he had known anything of Krug's involvement in any union activity or that he knew that the salesmen had begun organizing for the Union after the Teamsters movement had failed. But I do not credit Donovan's testimony that he knew nothing of Krug's role in any of the organizing activity. On the contrary, upon all the evidence presented at the hearing, I find and conclude that the Respondent and its managerial staff, including Donovan, not only knew of the initial Teamsters organizational campaign (as I have already found they did) but also knew of Krug's activity in both the Teamsters campaign and the salesmen's continu- ing activity to secure representation by the Charging Union. Certainly Lot Manager Stockton knew of Krug's continuing activity on behalf of both unions for, as I have found, Krug told him about it. And, as I have also found upon Assistant General Manager Hulesman's testimony, Hulesman knew from Krug's statement to him at the salesmen's meeting on February 22 that Krug was involved in the Teamsters activity. In addition, both the Teamsters and the Union's activity had been conducted so openly by Krug as the apparent leader, that this overall activity and Krug's prominent involvement must have become a matter of common knowledge and concern among the other automobile dealers in the Dayton area, as General Manager Drury admitted was true of the Teamsters initial activity. Finally, as will appear from my discussion of Krug's discharge by Donovan, the reasons given by Donovan for the discharge are so implausible that the only credible reason provided by substantial evidence in the present record is that Donovan knew of Krug's involve- ment in union activities and for this reason discharged him on March 23. D. Krug's Discharge 1. The evidence concerning Krug's performance as a salesman Krug was discharged by Used-Car Manager Paul Donovan on March 23, 1971, about 3 months after Donovan hired him as a salesman. As I have noted, the issue is whether he was discharged for his Teamsters and union activities or because of his unsatisfactory perform- ance as a salesman on lot 2. January 1971, Krug's first full month with the Respon- dent, was a "good" month for him as it was also for most ',of the other 10 salesmen on lots 1 and 2. Krug earned $901 in commissions and ranked fifth among the salesmen. The leading salesman for that month earned about $1,500, the next two salesmen about $1,350 each, and the fourth about $1,000, and thus only slightly more than Krug. Krug's commissions in 5th place surpassed the commissions of the other two lot 2 salesmen, Riffe (with $815) and Fannin (with $483), who placed 7th and 10th, respectively. Only one of the used-car salesmen, O. J. Black, failed to make his $300 draw-his January commissions were only $42-and presumably for this reason his employment terminated leaving the Respondent with 10 used-car salesmen for February and March. February 1971 turned out to be a "bad" month for these 10 used-car salesmen, all of whose individual commissions 4 In his brief, the General Counsel expresses doubt as to whether the their organizational rights and an unfair labor practice But, although I Respondent had in fact any pension plan in effect for its employees as share the General Counsel's doubts, the existence or nonexistence of a Hulesman told the men in the salesmen's meeting He suggests that company pension was not litigated and the complaint does not allege that Hulesman was actually offering such a plan to the men to persuade them such an offer of benefit was made and constituted an unfair labor practice I not to loin a union and that this offer of benefit was an interference with make no such finding LANG CHEVROLET SALES fell off sharply. Top individual commissions dropped from about $1,500 to $1,000. Bob Perrine, the leading salesman, dropped to ninth position with only $315 and thus barely made his February draw. The other salesmen all suffered a corresponding substantial decrease in their commissions and a considerable shuffling of their relative rankings for the preceding month. However, only Krug, in the 10th and bottom position with $216, failed to make his draw and thus fell below the other two salesmen on lot 2; i.e., Fannin with $517 in 5th position and Riffe with $400 in 7th position. On March 3 or 6, Used-Car Sales Manager Donovan held a meeting of all the used-car salesmer- and spoke to them about their low production in February. He also talked individually with Krug and salesmen Dave Jones and Maurice Yenan, who worked on lot 1, about their low February sales. Jones, with $426 in commissions, had ranked sixth and Y-.rian, with $319, had ranked eighth. Donovan did not speak to salesman Bob Perrin despite his ninth position with $315 since Perrine had been ill for 2 weeks in February. The Respondent's records show that Krug increased his commissions and his ranking among the salesmen during March. Although he was discharged on March 23 and thus a week before the end of the month, he had by that time already regained his fifth position in the commission rankings even in comparison with the commissions eventually earned by the other salesmen for the full month. March was also a slightly better month than February for the leading four salesmen, with the top ranking man earning about $1,200 and the other three ranging down the scale to $644. Krug's commission for only 3 weeks in March was $427 and exceeded the full month's commission earned by the other lot 2 salesmen-Fannin with $410 in seventh position and Riffe with $338 in eighth position. Dave Jones and Maurice Yenan, the two lot I salesmen to whom Manager Donovan had spoken about their low February production, continued their decline in commis- sions for the entire month of March and failed to make their $300 draw, with Jones earning only $226 in 9th position and Yenan only $224 in the 10th and bottom spot of the rankings. Notwithstanding Krug's increased commissions in March and his respectable showing in the salesmen's rankings for that month, Used-Car Sales Manager Dono- van and Lot Manager Stockton were critical in the testimony they gave concerning Krug's general attitude and conduct which, according to both men, Stockton reported to Donovan some time in March. Stockton testified that, as he informed Donovan, Krug had appar- ently no interest in his job in March as well as in February, that Krug came in late, that he showed an "unwillingness" to move cars and take them to the car wash, that he did not leave the office to speak to possible customers appearing on the lot, and that he failed to make telephone calls to prospects whose records of previous financing on so-called GMAC cards indicated they might be ready to purchase another car. According to Stockton's testimony, he spoke to Krug four or five times in March about these matters, without Krug's thereafter changing his ways in any respect. As one example of Krug's unsatisfactory reaction to his 137 criticism, Stockton testified that, although he spoke to both Riffe and Krug at one time about their tardiness and Riffe then began coming in on time, Krug still continued to come in late, apparently since in his previous employment he had been used to coming to work at 9 a.m. rather than 8:30 a.m., the Respondent's starting time. According to the testimony of both Donovan and Stockton, they spoke to Krug at one point in March and, as Krug admitted in his testimony, Donovan offered to shift Krug to lot 1 where he might make more money, but, after consideration of this suggestion for a day or two, Krug said he preferred to stay on lot 2. To support Stockton's criticism of Krug's general attitude, salesmen Fannin and Riffe, the other two salesmen on lot 2, testified that Krug would not share the work of moving cars and taking them to the car wash, and that Riffe had heatedly complained to Krug about it. Fannin further testified that Krug did not seem to care whether he came to work on time, and did not go out on the lot to speak to visitors to whom he referred as "flaky." As to his complaints to Krug about moving cars and having them washed, Riffe testified that this work was voluntary on the salesmen's part but enabled them to sell more cars and he told Krug several times, "If you'd get off your fanny and go out and help us we'd get the job done." But Stockton, Fannin, and Riffe testified that, although Krug seemed unwilling, he did at times move cars and take them to the car wash-and even shoveled snow-and that, so far as they could testify, he never failed to perform these chores when asked to do so by Stockton. From Krug's testimony, it would appear that these general criticisms of his attitude toward his work were unjustified, might have been made against the other salesmen as well, and in view of his March sales record were certainly not sufficient to warrant his being dis- charged. He admitted that he was late for work on many occasions but explained that he was working 12 hours a day. He testified that Manager Stockton never complained to him about his work or his not moving cars or taking them to the car wash rack; that moving cars was voluntary and he did it as much as the other two salesmen did; that the occasion on which Riffe had complained to him and said he should get off his "fanny" and do a little work, had occurred in January when Riffe was angry because Krug was "outselling him pretty bad"; that he stayed in the office rather than go out to see visitors on the lot only when waiting for business calls from customers or from the finance company or insurance company on pending deals; and that like "all the salesmen," when the visitors on the lot appeared to be unlikely prospects such as "15 year old ... or 14 year old boys," he may have said to the other salesmen, "I am not going to waste my time with these people . . . . These people are flakes." According to Used-Car Manager Donovan, he decided to discharge Krug when Krug failed to repossess a 1966 GTO Pontiac within 6 days after Krug had sold and delivered the car in mid-March and the finance company refused to lend the purchasers a $300 balance due on the purchase price. The purchase price was either $1,000 or $1,200 and under the terms of the deal approved by Lot Manager Stockton the purchasers (apparently a husband 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and wife whose names are not shown in the record) traded in a 1966 Chevelle (which Krug had sold them in 1967 while working for another dealer), paid some cash, and signed a note and chattel mortgage for $300 to GMAC which Donovan and Stockton conceded was a small amount to finance. All necessary papers (including the transfer of title to the Chevelle and the note and chattel mortgage to GMAC) were signed by the purchasers, and, after Krug had been informed by telephone by the GMAC office in Dayton that its loan on the Chevelle had been paid in full, Krug delivered the GTO and its title papers to the purchasers. On the following day, however, the Fairborn office of GMAC told Manager Donovan it would not accept the note because the purchasers were getting divorced and there was a "bankruptcy." Donovan told Krug to repossess the GTO but it took 6 days to get it back and, in order to rescmd the deal, the Respondent not only returned the Chevelle but reimbursed the purchasers for either $20 or $25 which they had spent repairing either the universaljoint or the transmission on the GTO. According to the testimony of Manager Donovan and Lot Manager Stockton, there have been other occasions -possibly two or three times a year-when a salesman has "put a used car out to a prospective buyer without the transaction being complete, signed and delivered," and in such a case it is the salesman's responsibility to repossess the car if it be necessary. According to Stockton's testimony, he was not critical of Krug's delivery of the GTO after all the required papers were signed but was critical because Krug "never made any effort to get in touch with the people other than by a phone call from the office" and, as a result, it took "over a week ... going on two weeks probably" before the GTO was returned to the Respondent. Contrary to this testimony of the Respondent's witness- es, it would appear from Krug's testimony that he did in fact make a reasonable effort to repossess the car as quickly as possible not only by telephone calls but by a visit to the neighborhood where the purchasers had lived. Thus, Krug testified that, including a weekend, he spent the first 4 days following his delivery of the GTO making telephone calls in unsuccessful attempts to get the GMAC to lend the necessary $300 and to locate the purchasers. According to Krug, the landlady at the address given by the purchasers said that the couple had moved without leaving a forwarding address, but promised Krug she would ask the wife's mother, who lived next door, to have the wife call Krug. Receiving no word by Monday, Krug and Riffe visited the mother who, although she did not know the street number to which her daughter had moved, promised to have the daughter call Krug. On the following day, the daughter called Krug and, although she com- plained about having trouble with the car, Krug told her that unless she paid cash or got financing elsewhere, "You'll have to bung the car back." On the same day or the next day, the woman brought the car back to the Respondent's lot and Krug referred her to Manager Donovan. 2. Manager Donovan's discharge of Krug on March 23, 1971 On March 23, 1971, Used-Car Sales Manager Donovan went to lot 2 and told Krug he was discharged. Krug testified that Donovan said merely that he was discharging Krug "because of your production"; i.e., because "You had a bad month last month." But Donovan testified that he told Krug he was being discharged not only "on account of his sales and his attitude" but also because of the GTO Pontiac transaction . Both men agreed in their testimony that there was no reference during this conversa- tion to the level of Krug's sales in March. They also agreed that Krug suggested, but Donovan denied, that Krug was really being discharged "because of the union." According to Donovan, he not only denied that the "union" had anything to do with Krug's discharge, but said, "I thought the union didn't go in here" to which Krug replied-and thus informed Donovan for the first time-"We have another one." On Donovan's instruction, Krug went immediately to the office on lot I and picked up his final check for commissions. While in the office, he spoke with General Manager Drury who also told him he was being discharged "because of your sales," and denied Krug's suggestion that it was because of 'the Union. During the course of this conversation, Krug referred both to his good sales record in January and to several profitable sales he had just made in March, and Drury said he was not aware of these recent sales.5 But Drury refused to override his used-car sales manager's action in discharging Krug and, when Krug said he was "going to the union," Drury told him it "would not help you any" and that Krug had "a chip on his shoulder." From all this, it would appear that it was Used-Car Sales Manager Donovan who decided to discharge, and did discharge, Krug. According to Donovan's testimony, he reached his decision upon consideration of Krug's low sales record, Krug's attitude on the job, and the GTO transaction. We have already summarized the evidence with respect to the last of these two alleged factors and also the evidence provided by the Respondent's records relating to Krug's sales and commissions for the 3 months he was employed. In addition, Donovan testified at some length as to why he regarded Krug's sales record to be so unsatisfactory as to be a factor in his decision to discharge Krug, despite his good sales record in January and his apparent rebound in sales rankings during the first 3 weeks of March immediately preceding his discharge. The essence of Donovan's testimony is that he relied on the sales and commission figures of the salesmen posted on a board kept in his office and made a comparison of Krug's figures not only with those of the two other lot 2 salesmen but also with those of the salesmen on lot 1; that when he examined these figures on his board and made this comparison on March 17 (a week before the dis- charge), the figures showed that Krug had sold only four or five cars in March with commissions of only about $200; that there was ordinarily a time lag between crediting the salesmen's commissions in the office and posting them on 5 This finding is based on Krug's testimony Drury testified that Krug "might have" mentioned his recent sales LANG CHEVROLET SALES Donovan's board but that it never occurred to Donovan to check the current figures on salesmen as shown in the office records; that when he discharged Krug on March 23 Donovan therefore actually did not know that the office figures showed Krug had made eight sales in March with a total commission of $427 and thus had already exceeded the commissions eventually earned for the full month of March by salesmen Fannin and Riffe on lot 2, and the two lot 1 salesmen, Jones and Yerian, to whom Donovan had also spoken about their low February sales; and that on the basis of the incomplete figures on his own board Donovan assumed that Krug was again failing to make his monthly draw as he had in February and decided to discharge him. I regard this explanation of the basis for Krug's discharge as clearly unacceptable. 3. Conclusions concerning Krug's discharge We come finally to the question of whether Used-Car Sales Manager Donovan discharged Krug on March 23 for the reasons given by Donovan in his testimony or because Krug, to Donovan's knowledge, had been engaging in union activities to which the Respondent was opposed. As to Respondent's knowledge of, and opposition to, the union activities of the salesmen , I have found upon my consideration of the evidence that the Respondent's managerial group, including Donovan, knew of the initial Teamsters organizational campaign in February and March and that in addition to interrogating employee Riffe unlawfully concerning this activity, Assistant General Manager Jack Hulesman in talking with the salesmen at the February 22 salesmen's meeting indicated the Respon- dent's opposition to their unionization. I have also found upon the evidence that, by the time Used-Car Sales Manager Donovan discharged Krug on March 23, Dono- van and the rest of Respondent's managerial staff not only knew of the initial Teamsters organizational campaign, but also knew of Krug's activity in both the Teamsters campaign and the salesmen's continuing activity to secure representation by the Charging Union. In the course of reaching these conclusions and in my discussion of Donovan's testimony, I indicated my opinion, and I now find that, in the light of all the evidence, the reasons given by Donovan for his discharge of Krug are not entitled to credence. This appears particularly in Donovan's testimony as to Krug's "low sales record" as a principal reason for the discharge. For the Respondent's office records showed that by March 23 Krug had already increased his March sales commissions to $427 with eight sales, had already comfortably exceeded his March draw, and had regained the fifth position among the salesmen which he had previously attained in his admittedly "good" month of January. And yet, although admitting that the figures on his board lagged behind the office records, Donovan testified that, in reliance upon the March 17 figures for Krug shown on his board and without checking the office records, he concluded that Krug had made only four or five sales in March with commissions of only $200 and discharged Krug on March 23. Moreover, Donovan testified that in deciding to discharge only Krug for "low sales " he compared Krug's sales and commissions with those of the other salesmen. Here again , Donovan's 139 testimony squarely conflicts with the figures shown on the Respondent's records. For as I have found, these records show that Krug's commissions for the first 3 weeks of March exceeded the full month' s commissions eventually earned by Fannin and Riffe (the other two salesmen on lot 2) and by Jones and Yenan, the two salesmen on lot 1 to whom Donovan had spoken about their low February production and who failed to make even their March draw. The other two reasons given by Donovan for Krug's discharge are also unconvincing when considered in the light of Krug's testimony and the rest of the evidence. Crediting Krug's testimony, I find, as I have already indicated, that Donovan's criticism of Krug's general attitude toward his work were unjustified, might have been made against the other salesmen as well, and in view of his March sales record were certainly not sufficient to warrant his discharge. As to Krug's taking 6 days including a weekend to repossess the GTO, Krug's testimony, which I credit, shows that, contrary to Donovan's and Stockton's testimony, Krug did in fact make a reasonable effort to repossess the car as quickly as possible not only by making telephone calls but by a visit to the neighborhood where the purchasers had lived. Upon this evaluation of the evidence, I find that the reasons advanced by Donovan for Krug's discharge are incredible, that their assertion by Donovan was intended to mask the real reason for the discharge, and that the only credible reason for Krug's discharge was that he had been engaged in the union activities among the salesmen to which the Respondent was opposed. This conclusion is supported not only by the Respondent's failure to produce any other credible reason for the discharge but also by the fact that Donovan discharged Krug within a few days after Krug had informed Stockton that the salesmen, instead of abandoning their attempt to unionize, had switched their organizational efforts from the Teamsters to the Union. Accordingly, I find and conclude, that the Respondent, acting through Donovan, discharged Jerome Krug on March 23, 1971, because Krug was engaged in organiza- tional activities among the Respondent's salesmen, first in support of the Teamsters and then in support of the Union, and that the Respondent thereby committed an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act by discriminating against Krug in regard to his hire and tenure of employment in order to discourage membership in a labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the business opera- tions of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce between 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 the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) of the Act, I will 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 committed an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act by discharging Jerome Krug on March 23, 1971, I will recommend that the Respondent offer Jerome Krug immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period. The backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Furthermore, it will be recommended that the Respondent pay interest on the backpay due to Jerome Krug. Such interest to be computed at the rate of 6 percent per annum and, using the Woolworth formula, to accrue immediately with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period. Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Lang Chevrolet Sales, Inc., an Ohio corporation, is an employer engaged in commerce within the meaning of the Act. 2. Local 374, Bakery and Confectionery Workers' International Union of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. 3. By coercively interrogating an employee, John Riffe, concerning its salesmen's union activities, the Respondent interfered with its salesmen's organizational rights and committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. By discharging Jerome Krug on March 23, 1971, because Krug was engaged in organizational activities among the Respondent's salesmen in support of the Teamsters and then in support of the Union, the Respon- dent discriminated against Jerome Krug in regard to his hire and tenure of employment in order to discourage membership in a labor organization and thereby commit- ted an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as herein specifically found, the Respondent 6 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes did not commit unfair labor practices within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: 6 ORDER Respondent, Lang Chevrolet Sales, Inc., an Ohio corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union activities. (b) Discharging or otherwise discriminating in the hire, tenure, or other terms or conditions of employment of any of their employees in order to discourage membership in Local 374, Bakery and Confectionery Workers' Interna- tional Union of America, AFL-CIO, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Jerome Krug immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority orother rights and privileges, and make him whole for any loss of earnings suffered by him as a result of the discrimination against him in the manner set forth in the section of Trial Examiner's Decision entitled "The Remedy." (b) Notify Jerome Krug immediately, if he is serving in the Armed Forces of the United States, of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) 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 under the terms of this Order. (d) Post at its place of business in Fairborn, Ohio, copies of the attached notice marked "Appendix." 7 Copies of said notice on forms provided by the Regional Director for Region 9, shall, after being signed by a representative of In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LANG CHEVROLET SALES the Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to Respondent's employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.8 8 In the event this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read : "Notify the Regional Director for Region 9, in wasting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT coercively interrogate any employee concerning our employees' union activities. WE ' WILL NOT discharge or otherwise discriminate against any of our employees, in their hire, tenure, or other terms or conditions of employment in order to discourage membership in Local 374, Bakery and Confectionery Workers' International Union of Ameri- ca, AFL-CIO, or in any other labor organization. WE WILL offer Jerome Krug full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings suffered as a result of his discharge on March 23, 1971. 141 WE WILL immediately notify Jerome Krug, if presently serving in the Armed Forces of the United States, of his rights to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT in any manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist a labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8(a)(3) of the Act. Dated By LANG CHEVROLET SALES, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted.for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.