Larry Barnes Chevrolet Co., Inc.

LARRY BARNES CHEVROLET 663 Larry Barnes Chevrolet Co., Inc. and Retail Store Em- ployees Union Local No. 1614, Retail Clerks Inter- national Association, AFL-CIO. Case 19-CA-6765 _ , July 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 3, 1974, Administrative Law Judge James S. Jenson issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Larry Barnes Chevrolet Co., Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. complaint, which issued on January 10, 1974, pursuant to a charge filed on November 30, 1973, alleges that William L. Killian was terminated on November 23, 1973, because of his activities on behalf of the charging party in violation of Section 8(a)(3) and (1) of the Act. On January 21, 1974, Respondent filed an answer admitting the procedural and jurisdictional allegations of the complaint but denying that Killian was terminated for the reason alleged. Respondent's answer alleges that Killian has been offered reinstatement and that Respondent would be pleased to have him return to his former position. All parties were afforded full oppor- tunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. A brief was filed by Respondent and has been carefully considered. Upon the entire record in the case, and from my observa- tions of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I JURISDICTION Respondent, a corporation, is engaged in new and used car sales in Boise, Idaho. Respondent's volume of sales and services annually exceeds $500,000 and the total amount of its purchases of goods and materials originating outside the state of Idaho annually exceeds $50,000. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union Local No. 1614, Retail Clerks International Association, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Respondent contends that on November 16, 1973, Killian notified his supervisor that he was leaving Larry Barnes Chevrolet Co, Inc., on Novem- ber 30, 1973, and that backpay, if any, should be limited to the week during which Killian would have remained an employee of Respondent, had he not been prematurely terminated . While the Administrative Law Judge fails specifically to resolve the question of whether Killian had in fact given definite notice of intent to quit and , if so, when he intended to leave, there is insufficient evidence in the record to support Respondent 's contention that Killian in fact gave notice to quit effective November 30, 1973 DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge : This case was tried before me in Boise, Idaho, on March 7, 1974. The A. Chronology of Events William L. Killian was hired by Respondent on or about June 23, 1973.1 He immediately commenced a 60-day train- ing program with a monthly guaranteed salary. Sometime during his second month of training, and while working on the used car lot, Killian turned in his demonstrator and quit his employment because of a misunderstanding over the amount of commissions he was to receive. Boyd Larsen, Respondent's training manager, prevailed upon Killian to return, at which time he was transferred to the new truck sales department. In September, Killian was the top-pro- ducing salesman among the Respondent's approximately 42 salesmen, and was declared "Salesman of the Month" for which he received a plaque to commemorate the event. While working in truck sales, Killian was given the use of a new demonstrator pickup truck. On November 16, Killian observed a man from the new car get-ready department removing the hubcaps from his demonstrator. Killian testi- 1 All dates herein are in 1973 unless otherwise stated. 212 NLRB No. I I I 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled that since management checks the condition of the vehicles periodically, and as he was responsible for the pick- up, he approached the man removing the hubcaps and re- placing them with a "lesser-attractive-type" and asked, "What in the Hell are you doing?" He was informed that the hubcaps were needed for another vehicle that had been sold. Killian then went to New Car Get-Ready Manager Grant Dewey and learned that New Car and Truck Manager James E. Drechsel had authorized their removal. Killian discussed the matter with Drechsel and, being upset over the matter, told Drechsel that he felt he should look for another job. Killian testified that Drechsel replied that: "You are free to stay with Larry Barnes until such time that you find other employment " Drechsel testified that Killian in- formed him that he, Killian was unhappy, and that he want- ed to quit within the next few weeks, probably to go into real estate, to which Drechsel responded that the company had spent a lot of time and effort on him "and really didn't want to see him go because they felt he had good potential of being a real good salesman because he had the drive, he had the capability. But, I had not . . . tried to talk him into it or out of it because he had already stated that he would like to leave and was leaving." 2 On November 20, Killian contacted the Union by tele- phone and made an appointment to meet with a union representative the following morning at 10 a.m. On Novem- ber 21 he met with Union Representatives Moore and Kerns for the purpose of learning what he needed to do to organize Respondent's salesmen . He was told that he should poll the employees, and if a majority were interested, a meeting could be arranged. The meeting with the union representatives lasted from one-half to three-quarters of an hour. At its conclusion, Killian went to Respondent's place of business and told Truck Salesmen Lawrence Musgrove and Paul Sackron about his meeting with the union officials. He also contacted a number of the salesmen on the sales- room floor and asked them if they were interested in joining the Retail Clerk's Union. The Respondent's business was closed on November 22, Thanksgiving Day. On the morning of November 23, Killi- an reported for work at 8 a.m. About 9:30, while he, Mus- grove, and Sackron were in the truck department office, Drechsel called and asked that Killian report to his office immediately. The following is Killian's testimony regarding his conversation with Drechsel: "Well, Mr. Drechsel opened the conversation by saying that it had been brought to his attention that morning at a breakfast meeting attend- ed by members of management that I had been talking with salesmen about the possibility of organizing a union and that such activities would not be tolerated. It was also men- tioned that I had spoken with two service technicians, meaning the mechanics there, about the possibility of their joining the Union, or the possibility of talking about it, anyway. Subsequent to that I was told I had two days to clean up my things and . . . leave the employment." 3 Upon 2 In view of Drechsel's testimony that Killian was capable and had drive and the potential of being "a real good salesman ," I credit Killian's testimony his return to the truck department office, Killian told Mus- grove and Sackron that he had been "fired for his union organizing." Shortly thereafter, Drechsel called Sackron and asked that Sackron report to his office. On his way over, Sackron met Larry Barnes, Respondent's president, who commented "that he felt bad about having to let Killian go, but he just wasn't working out." Sackron asked if the dis- charge "had anything to do with the union thing," to which Barnes replied: "No, that doesn't bother me ... I've been faced with that problem before." After arriving at Drechsel's office, Sackron was informed that Killian had been terminated. Sackron asked if it was "for trying to organize a union," to which Drechsel replied: "No . . . it was for low production, failure to get along with some of the other salesmen and that some of the people in the Get- Ready Department . . . weren't too pleased with his atti- tude . . . Besides that, he already more or less terminated himself . . . he wanted to . . . quit." Drechsel told Mus- grove that Killian had been terminated because of "his low productivity and inability to get along with his fellow sales- men." B. Respondent's Defenses Respondent contends that on November 16, Killian noti- fied Drechsel he was leaving Respondent's employ on No- vember 30, and that Respondent decided to terminate the employment relationship on November 23, following a management meeting that morning, because of his low pro- ductivity and problems with the new car get-ready depart- ment. Regarding the management meeting, and the reason for terminating Killian, Drechsel testified: "Well, it was brought to my attention from New Car Get-Ready from Grant Dewey that he had been presenting quite a problem out there and trying to push new units ahead of the other salesmen, which we probably serviced 8, 9, 10 cars a day on a sold-unit basis and they go according to when they go out. I do sign work orders when they go out, so this is where we got a big report on how much trouble he was causing and just trying to push other units ahead. From that factor there and the determining factor that his productivity was down and problems we had had with him that it was decided that morning under the management that we ought tojust termi- nate him earlier than when he wanted to quit." 1. Killian's low productivity Drechsel testified: "Bill Killian started out real well in the Truck Department. He had done a good job; he had made salesman of the month in one month, which was in Septem- ber . . . from that standpoint there he hadjust started going downhill and of course, I corresponded with Bill, talked with him on his sales and so forth." To support the conten- tion that Killian's production was down, Respondent intro- duced a document (Resp. Exh. 3) purporting to be a record of Killian's earnings during his employment. It shows that in June ° he received $250 as guaranteed salary; in July he received $600, of which $387 60 was from commissions on that Drechsel informed him that he could stay with the Company until he had told Drechsel that Killian had spoken to the two mechanics about the found other employment possibility of organizing them Rhodes was not called as a witness 3 Killian testified Drechsel told him that Service Manager Steve Rhodes 4 Killian commenced June 23 LARRY BARNES CHEVROLET 665 one new car, three used cars, and one truck, $6 were from "spiffs," and $206.40 represented guaranteed salary; In Au- gust he received $600, of which $443.60 was commissions on the sale of three new trucks, $27 from "spiffs," and $129.40 was guaranteed salary; in September he received $806.92 in commissions and a bonus on the sale of seven and one-half new trucks and one new car and $3.75 from "spiffs," for a total of $870.67;5 in October he received $711.11, of which $681.61 represented commissions from the sale of four new trucks, one used truck and one-half used car and $29.50 from "spiffs;" in November he received $262.37 repre- senting one-third of nine deals which were for eight new trucks and one new car, and $35.33 from "spiffs," for a total of $297.70. Drechsel admitted that in November, with Respondent's approval, Killian, Sackron and Musgrove had agreed to pool their sales and divide their commissions three ways, and that he had no way of knowing how many of the November sales had been made by Killian since all sales were made in Sackron's name. Drechsel further admitted that Respondent's Exhibit 3 did not reflect the fact that in November, Killian had placed special orders with the facto- ry for eight trucks that were to be delivered within the next few months.' Sackron also testified business conditions in October and November were difficult because of the short- age of desirable vehicles, and as a consequence the salesmen were usually dealing in "futures," or factory orders for fu- ture delivery. He also testified that if trucks had been avail- able, "We could all have sold more ." While Drechsel testified that it was not Respondent's practice to keep sales- men whose sales dropped as had Killian's, he also testified that there were other salesmen whose sales dropped simi- larly. No evidence was elicited, however, that any other salesmen were similarly terminated. 2. Killian's new car get-ready problems Grant Dewey, the new car get-ready manager, testified that after a sale is made he receives a work order and it is the duty of his department to put the vehicle in condition for delivery. He testified that shortly before November 23 "there were two units that he (Killian) seemed to be particu- larly interested in and gave us a big hassle about getting them completed, even though we had a considerable num- ber of other work orders to get out . I reported these things to my supervisor." He testified that there were no harsh words over the matter, but that Killian "pressured him" to get the two units out. The pressure, he testified, consisted of "things like `I have to have this by tonight.' " He admitted that other salesmen also encouraged him to get units out faster, "but without this pressure." Sackron testified that he usually asked Dewey to expedite an order, that all salesmen like to get them done immediately , and "we all ask for the same thing . . . he gives it to us, if he can." He also testified that he occasionally "pressured" Dewey about getting a unit 5 Kilhan was the leading producer among the Respondent's approximately 42 salesmen and was awarded a "Salesman of the Month" plaque 6 Drechsel testified that June , July, August, and September were the best months in the automobile business, and that during the months of October and November, when the model changes occur, there is a problem regarding the availability of trucks which makes it necessary for salesmen to "special order" from the factory for "future delivery " out, by being "more insistent than normal," such as saying "I need it desperately." Sackron has never been called down for "pressuring" Dewey.' 3. Killian's inability to get along with the other salesmen While Respondent does not contend in its brief that one of the reasons Killian was terminated was his inability to get along with his fellow salesmen, both Sackron and Musgrove testified that this was one of the reasons Drechsel had given them for his termination . On the basis of the testimony of Jack Gisler, a witness called by Respondent, that Killian "seemed to be a personable guy with a good personality" and got along well with his fellow salesmen, and the testimo- ny of Sackron that Killian got along with others "Fairly well. He organized a basketball team and about nine or ten guys played with him. They couldn't have hated him too much," I conclude Respondent has failed to establish as a fact that Killian's inability to get along with his fellow sales- men had anything to do with his termination. Analysis Respondent's contention that there is an absence of affir- mative evidence of antiunion hostility and a discriminatory motivation, and its reliance on John L. Donnelly, Sr., et al., d/b/a Shelby Liquors, 208 NLRB No. 132, is without merit. Killian, who impressed me as a forthright and honest wit- ness, testified convincingly that Drechsel told him on the morning of November 23 that he had learned that morning at the breakfast meeting that Kilhan had been talking to the salesmen and mechanics about the possibilities of organiz- ing, and that "such activities would not be tolerated," fol- lowed by a notice to clean up his business within 2 days. Drechsel, on the other hand, did not specifically deny Killian's testimony, nor did Respondent call any witnesses who testified convincingly in support of its position. Dre- chsel testified that on November 16, a week before Killian's termination, he told Killian, "We spent a lot of time and effort with him and really didn't want to see him go, because I felt he had a good potential of being a real good salesman, because he had the drive, he had the capability." What, then, happened within the last week of Killian 's employ- ment that led to Killian's termination ? The lack of his abili- ty to get along with his fellow employees is, I find, wholly without merit. Further, Respondent's "low-productivity" defense is clearly lacking in substance .,It is beyond question that in September Killian was the top producer among all of Respondent's salesmen. While his October earnings were down approximately $170 from his September earnings, there was a valid reason in that there was a shortage of vehicles due to the model changeover. Moreover, Respondent failed to show that Killian's production fell off more, or was any lower, than that of any other salesmen. Further- undermining Respondent's defense is the fact that Drechsel admitted he did not know how many units Killian was responsible for selling in November since Killian, Sackron, and Musgrove 7 Dewey's manner of testifying convinced me that he was coloring his testimony so that it would be favorable to his employer 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were pooling their sales. Moreover, Killian had sold approx- imately eight trucks in November for future delivery which are not reflected in Respondent's Exhibit 3. 1 find, therefore, that Respondent's Exhibit 3 is not an accurate reflection of Killian's sales for November, which casts further doubt upon the validity of Respondent's defenses. Respondent's defense based on Killian's "problems" with the new car get-ready department, also lacks the ring of truth. While Dewey attempted to create the impression that Killian had exerted "undue pressure" on him by stating "I have to have this (out) by tonight," the record is clear that other salesmen also encouraged him to get their units out faster, that it was usual for Sackron to ask Dewey to exped- ite an order, including more insistence than normal, such as saying "I need it desperately." Sackron, as the evidence disclosed, was never reprimanded or called down for so pressuring Dewey. On the basis of all the foregoing, I conclude and find that the reasons Respondent advanced for Killian's termination were mere pretexts, and that the General Counsel has estab- lished by a preponderance of the evidence that the real reason and moving cause behind Killian's termination was his efforts to organize Respondent's employees and that the termination constituted discnmination to discourage union activity in violation of Section 8(a)(3) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Re- spondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. to the Board, upon request, all payroll and other records to facilitate checking the amount of earnings due. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of the employees' rights safeguarded by the Act, I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAW On the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following con- clusions of law: 1. Respondent is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Retail Store Employees Union Local No. 1614, Retail Clerks International Association, AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against William L Killian, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed them by Section 7 of the Act, Respondent has engaged in unfair labor practic- es within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid violations are unfair labor practices af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged William L. Killian on November 23, I shall rec- ommend that Respondent make Killian whole for any loss of pay he may have suffered by reason of the discrimination against him. Said loss of pay shall be based on the earnings he would normally have earned from the date of discharge until January 9, 1974, less the net earnings during such periods Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The interest on back- pay shall be computed in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716. It is also recommended that Respondent make available It is recommended that Larry Barnes Chevrolet Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off or otherwise discriminating against employees for engaging in union or concerted, pro- tected activities. (b) In any other manner interfering with, restraining, or coercing employees in the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action: (a) Make William L. Killian whole, as set forth in the Remedy section above, for any loss of earnings suffered as a result of the discrimination against him. (b) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll 9 In the event no exceptions are filed as provided by Section 102 46 of the By letter dated January 3, 1974, Respondent offered to reinstate Killian Rules and Regulations of the National Labor Relations Board, the findings, and to hold his position open until January 14 By letter dated January 8, conclusions, and recommended Order herein shall, as provided in Section Killian notified Respondent that he had accepted another job commencing 102 48 of the Rules and Regulations, be adopted by the Board and become on January 9, 1974 , and was, therefore , not interested in returning to work its findings, conclusions , and Order, and all objections thereto shall be for Respondent deemed waived for all purposes LARRY BARNES CHEVROLET 667 records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze and determine the amount of backpay due, under the terms of this recommended Order. (d) Post in conspicuous places at its place of business in Boise, Idaho, including all places where notices to employ- ees are customarily posted, copies of the notice attached hereto marked "Appendix." 10 Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respondent, shall be posted 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 no- tices are not altered, defaced or covered by any other mate- rial. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith. 10 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." To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our em- ployees that: WE WILL NOT discharge, lay off, or in any other way discriminate against any of our employees because of their activities in behalf of Retail Store Employees Lo- cal No. 1614, Retail Clerks International Association, AFL-CIO, or any other labor organization. We have offered William L. Killian reinstatement to the position he held at the time of his discharge, which offer was declined. WE WILL make him whole for any loss of pay suffered because of his discharge. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of any right guaranteed them by the Act. LARRY BARNES CHEVROLET CO., INC (Employer) Dated By APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves (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 direct- ed to the Board's Office, Tenth Floor-Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-7542.