Suburban Chevrolet, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Suburban Chevrolet, Inc. and C. Gilbert Johnson. Case 5-CA- 11222 January 14, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND ZIMMERMAN On July 14, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, I 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Nor do we find merit in Respondent's contention that, because the Ad- ministrative Law Judge generally discredited Respondent's witnesses, and credited the General Counsel's witnesses, his credibility resolutions are erroneous or attended by bias or prejudice. N.L.R.B. v. Pittsburgh Steam- ship Company, 337 U.S. 656 (1949). We have considered the record and the attached Decision and reject these charges. 2 In the absence of exceptions, we adopt, pro forma, the Administrative Law Judge's findings that Respondent did not violate Sec. 8(aXl) of the Act by (1) Bruce Johnson's statement on or about July 13, 1979, that, if he had his money up, he "would close this place up and tell the world what I 11 guys did to him"; (2) George Prevost's inquiry to Clinton Isset on or about March 22, 1979, about Isset's feelings on the Union; (3) Irving Tillman's statement in early 1979 that the business would be pad- locked before the Union would be allowed in; and (4) Jesse Greenbaum's remark early in 1979 that "before he would have a union in here, he would sell the place." In adopting the Administrative Law Judge's Decision, we do not rely on the Administrative Law Judge's observation in fn. 33 that, even if Gil- bert Johnson had requested the use of a demonstrator, he would not have been afforded the opportunity. 3 The Administrative Law Judge inadvertently omitted from the notice the language traditionally used by the Board to inform employees that a respondent will not "in any like or related manner" interfere with the employees' exercise of rights guaranteed them under Sec. 7 of the Act. Accordingly, we will substitute a new notice for that of the Administra- tive Law Judge to reflect this language. Similarly, the Administrative Law Judge inadvertently omitted from par. 2(c) of the Order the tradi- tional language requiring that the notice be posted immediately upon re- ceipt. We will modify the Order to reflect this correction. 254 NLRB No. 16 Suburban Chevrolet, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(c): "(c) Post at its place of business in Baltimore, Maryland, copies of the attached notice marked 'Appendix.' 3 6 Copies of said notice, on forms pro- vided by the Regional Director for Region 5, after being duly signed by Respondent's authorized rep- resentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 amend- ed, gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT lay off or otherwise discrimi- nate against any employee for assisting Retail Store Employees Union, Local 692, United Food and Commercial Workers International Union, or any other labor organization. WE WILL NOT coercively interrogate em- ployees about their union sympathies and ac- tivities, WE WILL NOT threaten employees with reprisals for exercising their statutory rights, and WE WILL NOT attempt to engage in sur- veillance of union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them under Section 7 of the Act. 228 SUBURBAN CHEVROLET, INC. WE WILL compensate C. Gilbert Johnson, with interest, for any loss of pay he may have suffered because we laid him off. SUBURBAN CHEVROLET, INC. DECISION BERNARD RIES, Administrative Law Judge: This case was heard before me in Baltimore, Maryland, on Febru- ary 11, 12, 19, and 20, 1980. Presented for decision are six allegations that Respondent, on various dates in 1979, violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, by certain con- duct of its agents,' and an assertion that Respondent "terminate[d]" the employment of C. Gilbert Johnson on July 17, 1979, in violation of Section 8(a)(3) of the Act.2 Briefs have been received from Respondent and the General Counsel. Having considered the briefs, the entire record,3 and my recollection of the demeanor of the wit- nesses, I make the following findings of fact, conclusions of law, and recommendations. 4 I. THE CONTEXT OF EVENTS Respondent operates an automobile dealership in Balti- more, Maryland, where it employs about 12 new-car salesmen, perhaps 6 used-car salesmen, and some 75 other employees. Concern about a revision of Respon- dent's commission plan led the Charging Party Gilbert Johnson and other salesmen, in early 1979,5 to draft a letter which Johnson then presented to a coowner of Re- spondent, Irving Tillman. 6 While Tillman denied a re- quest for a group meeting, individual conferences with some salesmen were had. The amended plan was put into effect, and, after sev- eral of the salesmen discussed the possibility of union representation, they agreed that Gilbert Johnson should contact the Retail Store Employees Union. Johnson did so. He and two other salesmen thereafter distributed au- thorization cards, which Johnson then returned to the Union. Around March 9, the Union sent Respondent a written demand for recognition as bargaining agent of the new- and used-car salesmen, and on March I filed a petition for an election. The election, held on May 24, resulted in a victory for the Union by an 11-7 margin. The complaint alleges, inter alia, that Respondent's representatives uttered threatening and coercive state- Two of the allegations were added by amendment at the hearing. One allegation, set out in par. 5(b) of the complaint, has been withdrawn by the General Counsel on brief. 2 In fact, as he himself testified, Johnson was told on July 17 that he was being laid off, not discharged. Johnson was recalled to work on Sep- tember 17, 1979, subsequent to the issuance of the complaint on August 24. 3 Certain errors in the transcript are hereby noted and corrected. 4 The pleadings indicate, and I find, that it is appropriate for the Na- tional Labor Relations Board to assert jurisdiction over Respondent in this case. The pleadings further establish that Retail Store Employees Union, Local 692, United Food and Commercial Workers International Union, is a labor organization within the meaning of Sec. 2(5) of the Act. All dates hereafter refer to 1979 unless otherwise indicated. 6 Other managerial officials of importance here are Coowner Jesse Greenbaum, General Manager Bruce Johnson, and New-Car Sales Man- ager George Prevost. ments to employees prior to and after the election. I shall first consider those claims. II. THE ALLEGED VIOLATIONS OF SECTION 8(A)( I) A. The Allegations Relating to Bruce Johnson The complaint alleges that General Manager Bruce Johnson, on or about April 25, violated Section 8(a)(l) by "interrogating employees concerning attendance at union meetings." Gerardo Pierorazio, a new-car salesman for 4 years, testified that, a few days after the first orga- nizing meeting with a union representative on March 12, General Manager Bruce Johnson called him into John- son's office and: asked me if we had a meeting at the Holiday Inn pertaining to union activities, and I told him we had. And that I had signed a card-a petition. He asked me what my feelings were toward the union. I told him they were strong. I have always believed in union activities. An affidavit given by Pierorazio on July 18 varied this testimony in several ways. Apparently the affidavit states that the union meeting occurred on March "2," not "12." The affidavit reads, "Bruce Johnson and George Prevost asked me if I had been to the union meeting at the Holi- day Inn." At the hearing, Pierorazio could not recall that Prevost participated to any greater extent than being in an adjoining office. Although Pierorazio insisted at the hearing that Johnson "asked me what my feelings were toward the union," the affidavit makes no reference to any such question. Bruce Johnson testified that he had no conversation with Pierorazio in his office about attendance at a union meeting at a Holiday Inn. He did recall having lunch with Pierorazio soon after receipt of the union demand (Pierorazio also remembered the lunch), at which time Johnson attempted to broach the question of the Union and company problems, but ultimately changed the sub- ject. Despite the discrepancies in Pierorazio's testimony, he made a strong impression on me as an open and forth- right witness, and I would be inclined to write off the discrepancies to a faulty memory and to the vagaries of affidavit-taking, a less than scientific process. Bruce Johnson was himself a personally impressive witness, if somewhat less so than Pierorazio, but I would choose the latter over the former on the basis of comparative demeanor. Moreover, as discussed below, Pierorazio tes- tified to a statement by Bruce Johnson made after the election, which Johnson denied having made. It was not the sort of remark one might forget having uttered, and I simply do not believe that Pierorazio fabricated the com- ment out of whole cloth. My acceptance of Pierorazio's testimony on this latter point naturally tends to color my view of Johnson's testimony as a whole. I conclude, therefore, that Johnson did ask Pierorazio, soon after the March union meeting, if he had been in attendance. I am also inclined to believe, despite its omis- sion from the affidavit, that Johnson asked Pierorazio "what his feelings were" toward the Union. The question 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of whether these inquiries constituted coercive conduct is, I think, a fairly close one. The Board has held that not all interrogation about union matters is impermissible: "[I]nterrogation of em- ployees by an employer as to such matters as their union membership or union activities, which, when viewed in the context in which the interrogation occurred, falls short of interference or coercion, is not unlawful." Blue Flash Express, Inc., 109 NLRB 591, 593 (1954). In that case, where the employer systematically interviewed em- ployees in his office to determine the validity of a union claim of majority status and "communicated its purpose in questioning the employees-a purpose which was le- gitimate in nature-to the employees and assured them that no reprisal would take place" and the questioning "occurred in a background free of employer hostility to union organization," the Board found no impropriety. Id. at 593, 594. Generally, the Board has since appeared to regard almost any interrogation about union activities as viola- tive, if the affected employee has not been informed of a lawful purpose for the interrogation nor given assurance against retaliation Satra Belarus, Inc., 226 NLRB 744, 746 (1976), York Division, Borg-Warner Corporation, 229 NLRB 1149, 1150 (1977), and despite the existence of a "long, cordial work relationship" and a "friendly, pleas- ant, and courteous manner." Hanes Hosiery, Inc., 219 NLRB 338, 339, fn. 2 (1975). These and similar cases would seem to dictate that a violation be found. On the other hand, it is clear from the record that the salesmen and the managers work closely together and are on a first-name basis; the general manager's office was a familiar place to Pierorazio and the other sales- men; Pierorazio testified that he "volunteered" the infor- mation that he had signed a union card, thus arguably implying that he did not feel unduly threatened; and thereafter he had "so many" conversations with Johnson about the Union. These circumstances suggest that the interrogation might not be held coercive under the crite- ria set out in Bonnie Bourne, an individual d/b/a Bourne Co. v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964), and like cases. I am, however, bound by prevailing Board precedent. Moreover, I think it can be fairly said that there were coercive overtones to the questioning of Pierorazio. There was a definite element of formality involved, since Johnson called Pierorazio into his office to speak about the matter. The conversation was not a lengthy discus- sion of the pros and cons of unionism, as often happens, but rather a limited and pointed inquiry into whether a meeting was held and where Pierorazio stood. Calling in an employee solely to elicit answers to such questions seems to me to stress the employer's anxiety about the impending effort and to throw a discomfiting spotlight upon the employee. That Pierorazio "volunteered" that he had signed a card could as well be a symptom of ner- vousness as of relaxation. Given the Board's precedents, and the controlling test of whether the Employer "en- gaged in conduct which reasonably tends to interfere with the free exercise of employee rights under the Act," Hanes Hosiery, Inc., supra, 219 NLRB at 338, it seems ap- propriate to conclude that the interrogation in issue here reasonably so tended. The complaint further alleges that, on or about July 13, Bruce Johnson violated the Act by "implicitly threat- ening to blacklist employees because of their activities on behalf of the Union." Pierorazio testified that at some uncertain time after the election, perhaps around the be- ginning of June, Johnson "called me aside and said in a statement to me, if I had my bucks up I would close this place up and tell the world what '11 guys did to him."' Johnson denied making any such statement. I simply do not believe, as earlier stated, that Pierorazio conjured up this testimony from his imagination. I also do not believe that the statement violated the Act. At the hearing, counsel for the General Counsel in- sisted, and continues to insist on brief, that the reference to "tell[ing] the world what 11 guys did to him" consti- tuted a threat to "blacklist" the employees.7 The conten- tion seems most fanciful to me. A threat to blacklist, at a minimum, should be uttered by an employer representa- tive with the power to terminate operations, or his agent, suggesting, in a realistic way, that he would do just that and would, in the process, notify other employers of the identity of the employees who had been responsible for the union organization. Bruce Johnson, a general man- ager without any capability of shutting down the busi- ness, was unleashing here nothing more than hypotheti- cal rhetoric, asserting that, if he were the proprietor, he would be tempted to close down the operation and ex- press to the world his sentiments about the collection of ingrates he had once employed. To assume that Pierora- zio somehow reasonably regarded this statement as a se- rious and viable threat to "blacklist" the employees is, I think, wholly unrealistic. I recommend dismissal of this allegation. Donald Dugan, a salesman who was discharged by Respondent soon after the election, testified that Bruce Johnson spoke to him about the union campaign perhaps three or four times between the filing of the petition and the election. On one such occasion, Dugan said that, the morning after a union meeting, Johnson came to his desk, "smiled," and said, "I don't have to ask you what went on last night because I already knew last night after the meeting." This was the entire conversation. Bruce Johnson gave the following account. One morn- ing, as he neared Dugan's desk in order to turn on some extra lights, Dugan said to him, "We had a big union meeting last night." Johnson replied, "I already knew about it." At the hearing, Johnson did not explain how he had come to know of the meeting. The complaint alleges that Respondent, through John- son's agency, violated the Act "by creating the impres- sion of surveillance of employees' union activities by tell- ing employees that he thought certain employees were involved in union activities." This rather specific claim does not nearly track Dugan's testimony, but it is the only complaint allegation touching the general area of surveillance. Although Dugan made a favorable personal I My extension of an opportunity to amend the complaint to allege a more conventional threat was politely rejected, with a request to argue the "blacklist" theory on brief. That argument has been made. 230 SUBURBAN CHEVROLET, INC. impression on me, his testimony contains some substan- tial inconsistencies. Unlike the incidents referred to by Pierorazio, here Johnson recalled the specific occasion and gave a not implausible account of what happened. 8 Dugan displayed a certain animosity toward Respondent. That bias, coupled with the general uncertainty of his testimony, leads me to conclude that the Government's case is not sufficiently reliable on this issue to serve as the foundation for finding an unfair labor practice. B. The Allegation Pertaining to George Prevost As amended at hearing, the complaint alleges that New-Car Sales Manager George Prevost violated the Act by "interrogating employees concerning their union activities." Clinton Isset, Jr., a new-car salesman, testified that within 10 days of the filing of the election petition, as he and Prevost were driving to dinner, Prevost said, "I guess you know what this is for." When Isset pro- fessed ignorance Prevost said, "It is about the union. I want to know how you feel about the union." Isset asked whether the inquiry was "official or unofficial." Told it was the latter, Isset said, "Officially, you can tell any- body you want to, but I am leaning towards the union." Thereafter, Prevost "did his campaigning all the way over" to the restaurant, telling Isset about his unhappy union experiences as a stevedore. Isset testified that he thereafter had many conversations with Prevost about the Union; the one referred to here does not appear in his pretrial affidavit. Prevost testified that, as they drove to lunch, he merely asked Isset, "What is happening?", to which Isset replied, "Right at this point, I am leaning very strongly toward a union." Prevost denied making any initial refer- ence to the union situation. He did concede that, after Isset volunteered his inclination, he told Isset that it was "his business," but went on to speak of a "little problem with the union when I was a stevedore." Isset appeared to be a more credible witness than Pre- vost, and his version of the conversation is patently more appealing as a matter of logic. I therefore accept Isset's account of the conversation. In this case, however, I would not be inclined to find a violation. Prevost's ques- tion was obviously only a preliminary to further discus- sion about the merits of unionization, which thereafter did occur, and Isset surely recognized that the inquiry was simply designed to determine whether it was neces- sary for Prevost to do any "campaigning." In this view, a legitimate purpose of the question was conveyed to Isset and, by implication, the notion of reprisal was put aside. The question was not "interrogation," that is, the seeking of information as such, but simply a threshold es- tablishment of Isset's position preliminary to further dis- cussion. I doubt that this initial query could be said to have had a reasonable tendency to coerce Isset.9 I shall recommend dismissal of this allegation. s Indeed, Johnson's account strikes me as more likely than the rather forced "I don't have to ask you what went on last night because I al- ready knew last night after the meeting" testified to by Dugan. 9 Isset testified that Prevost was in a "jovial mood" during their con- versation, as was Isset himself C. The Allegations Pertaining to Jesse Greenbaum and Irving Tillman The complaint alleges as violative the conduct of Coowner Jesse Greenbaum, "sometime in early March 1979, the exact date being unknown . . . in threatening to sell the business should the Union win the NLRB election." The General Counsel in fact produced evi- dence of two incidents in which Greenbaum purportedly spoke of closing the business, the first of which occurred even before the employees had approached the Union about representation. Since Greenbaum testified in re- sponse to both allegations, I consider them thoroughly litigated and ripe for resolution. Isset testified that, during an individual meeting with Greenbaum about the commission plan in February, the latter referred to the petition which the salesmen had signed, "hit the desk," and asked Isset if he knew "what this is the first step of." Answering his own question, Greenbaum said, "It is the first step of a union," adding, "If that fucking union comes in here and tries to tell me how to run my business, I will put a padlock on the door and close the place." Greenbaum recalled a meeting about the pay plan with Isset. He did not "remember" whether the subject of a union came up at the time, but he labeled "ridiculous" the notion that he would have threatened to close the business in the event of unionization, since he had only recently renewed the property lease for a 5-year period. On cross-exemination, Greenbaum's inability to "remem- ber" any conversation about a union disappeared: "There was no conversation about any union." Greenbaum made a fairly good appearance, but was not as impressive as Isset. Other testimony given by Greenbaum, discussed hereafter, led me to believe that he is not a particularly reliable witness. I find it extreme- ly unlikely that Isset manufactured this exchange. Ac- cordingly, I would give credence to the testimony of Isset, a current employee of Respondent, on this subject. I would further conclude that, despite the fact that no union campaign had begun at the time Greenbaum made his statement, the comment was unlawfully coercive. Greenbaum obviously, and presciently, foresaw the union effort looming somewhat larger than a man's hand on the horizon, and he went out of his way to allude to the specter and its awful consequences. The threat surely would have had a reasonable tendency to dampen an em- ployee's enthusiasm for collective activity.o Gilbert Johnson, the Charging Party, testified that in March, while Greenbaum was speaking to some unidenti- fied stranger on the showroom floor, he said in a "loud" voice that "before he would have a union in here he would sell the place." Johnson was "sure four or five people on the showroom floor heard him." Since it seems relevant to this issue, I will also discuss here a similar remark, also alleged as an 8(a)(1) violation, attrib- uted by Johnson to Coowner Irving Tillman. Johnson said that probably in March Tillman said on the show- room floor that he "would padlock the place before he 'o The fact that it had no such effect on Isset, :s events proved, is immaterial. 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would let a union in there." Johnson said Tillman was conversing with someone whom he could not recall. Greenbaum testified that he may have made a remark on the showroom floor about a separate business venture which had almost collapsed, and he speculated that Johnson may have misunderstood the sense of that com- ment. Tillman testified that he made "absolutely" no such statement. Norman Ziehl, a salesman who appeared as a witness for Respondent, said that he never heard Greenbaum make such a statement. He went on to say, however, "I heard a lot about it. But I did not hear it myself." He explained that he had heard the "fellows talking" about such a remark by Greenbaum. Ziehl gave similar testimony about Tillman's alleged threat-that he did not directly hear it, but he "heard talk" about it. Gilbert Johnson was a pleasant and seemingly sincere individual, but his testimony, while limited in extent, was internally inconsistent, uncertain, and at odds with his pretrial affidavit. At the same time, I was less than im- pressed with Greenbaum's testimony, and not at all with Tillman's. I think that the testimony by Ziehl, a witness vouched for by Respondent, about having heard that Greenbaum had referred to closing the business, tends to corroborate Johnson. In addition, there is something in Greenbaum's speculation that he may have made a remark on the showroom floor concerning another ven- ture which makes me suspect that he recalled the inci- dent to which Johnson referred. At the same time, even though I am inclined to believe Johnson on this point, the evidence is insufficient, I think, to allow a conclusion that Greenbaum, in the course of talking to the unidenti- fied person about closing the business, deliberately in- tended to make himself audible to the salesmen. t Although Johnson's demeanor and general credibility seemed superior to Tillman's, and the same confirming gloss was lent by Ziehl regarding Tillman's alleged remark, I am reluctant to find that Tillman did make the comment attributed to him by Johnson. While Johnson's pretrial affidavit sets out the statement made by Green- baum, it says nothing of the remark by Tillman, and Johnson was hardput to explain the inclusion of the one and the omission of the other. In any event, since Johnson testified that the Tillman remark was simply overheard by Johnson, and I have no reason to believe or disbelieve that Tillman would have intended or foreseen such a result,12 there would be no basis for concluding that Tillman deliberately threatened the employees. In N.L.R.B. v. McCann Steel Company, Inc., 448 F.2d 277, 278 (6th Cir. 1971), the court noted that "the law seems clear that the Board must demon- strate that the remarks were made with some intent that they be overheard." I do not believe that such a demon- ' Ziehl testified, as noted, that he did not hear the remark. There is no way of knowing whether Ziehl was present at the time. However, even if he were, his testimony indicates that the alleged statements by Greenbaum and Tillman could "certainly" have been made without Ziehl's having heard, due to the placement of his desk. 1' While Johnson testified on direct that Tillman was speaking to "[elveryone," he said on cross that Tillman was "conversing with some- one else," either a "[m]ember of the sales force and/or management, I don't know," at the time he made the remark some 10 yards away from Johnson. The statement was made in a "medium" tone of voice. stration has been made here, and I consequently recom- mend that these two allegations be dismissed. When Ziehl appeared on Respondent's behalf, he gave the following testimony at one point in his direct exami- nation, to the considerable surprise of counsel for both parties: Q. Did Mr. Tillman anytime in March, April, or May of 1979, talk to you about the union? A. No, sir. Well, I will say one thing. One night he called me and asked me to go to a union meet- ing. I told him, no. That is all. On further questioning, Ziehl said Tillman "just asked me to go down there and see what went on." Thereafter, I granted the General Counsel's motion to amend the complaint to allege that Respondent, by Tillman, had been "attempting to engage in surveillance of union ac- tivities by requesting an employee to attend a union meeting and report back as to what had transpired." In his initial appearance on the stand, before Ziehl tes- tified, Tillman stated that he had played a very limited role in the preelection campaign and "never" said any- thing to the employees about the Union. Post-Ziehl, Till- man testified again to his lack of operating control over or interest in the dealership, stated that he had never called an employee "at home," and said he was "100 per- cent" certain that he had not made the asserted request to Ziehl. On cross, however, Tillman conceded that he had once called Ziehl "at the dealership," but "doubt[ed] very much" if it was in April or May. Almost immedi- ately, however, he agreed that the telephone conversa- tion occurred in April, and that its exclusive subject was an excursion to the Preakness in which Ziehl would act as chauffeur for a party. I thought Ziehl a relaxed, spontaneous, and veracious witness; I do not believe that he fabricated and uttered a baldfaced lie about the telephone call. Respondent argues on brief that even if I were to believe Ziehl over Tillman no unfair labor practice would be made out because Till- man did not, as alleged, ask Ziehl to "report back as to what had transpired" at the union meeting. Obviously, however, Tillman's request that Ziehl attend the meeting to "see what went on" was not intended to be some sort of continuing adult education for the benefit of Norman Ziehl; the plain import of the mission was the gathering of information. The Board has held that such a request violates the Act, Montgomery Ward & Co., Incorporated, 224 NLRB 104, 107 (1976), and the precedent applies here. Ill1. THE LAYOFF OF GILBERT JOHNSON Gilbert Johnson was laid off by Respondent on July 17. At the time, General Manager Bruce Johnson told him that the layoff was for "economic reasons" and that "[t]he desk would be waiting for me as soon as things happen-as soon as the economic situation got better. I would be called back." Gilbertl3 filed a charge with the Board on the same day, and he was recalled to work on '3 In view of the identity of surnames of the general manager and the Charging Party, I will refer to each hereafter by his first name. 232 SUBURBAN CHEVROLET, INC. September 17. The 2-month layoff is alleged to be viola- tive of Section 8(a)(3). At the time of the layoff, Gilbert had been a car salesman for about 25 years, a Chevrolet salesman for around 20 of those years, and an employee of Respondent for nearly 4 years. The record shows that Gilbert was the principal actor in the effort to obtain union representation. I think it rea- sonable to infer, despite the denials of management rep- resentatives, that Respondent was aware of, or at least strongly suspected, Gilbert's role in the advent of the union campaign. Gilbert had been the one who had pre- sented to Tillman the petition for a group meeting in February, conduct which Greenbaum later characterized as the first step toward unionization. Dugan gave uncon- tradicted testimony that, when he met individually with Bruce about the disputed commission plan, Bruce said that the employees "should have had someone else repre- sent us, other than Mr. Gil Johnson . . . because he did not create a good image for us." The record shows that Bruce engaged in many con- versations with the salesmen prior to the election in an effort to dissuade them from supporting the Union. Cur- iously, however, he testified that he only had one such conversation with Gilbert before the election.' 4 Consid- ering Bruce's conceded lack of restraint about approach- ing the other salesmen on the subject of unionization, his description of how he came to speak to Gilbert sounds for all the world as if a council of war was being held: As a matter of fact, I had heard-I don't recall who it was, anyway, that I heard a rumor from one of the salesmen and I believe I even told Mr. Green- baum about it-there was a rumble on the show- room floor that Gil Johnson wanted to talk to me and if I am not mistaken, as I told Jesse-I said, Gil wants to talk to me. I will sit down and talk to him about the union. This sort of "summit meeting" approach to a conver- sation with Gilbert about the Union, including a prior conversation by Bruce and Greenbaum about its immi- nence, suggests to me that Gilbert was regarded not only as a union partisan but probably as a leader. Bruce's account of what was said at this meeting was not consistent, but his first version was that Gilbert stated, in reply to Bruce's expressed opinion, that there was no need for a union, and that "he felt there was." Bruce quickly changed this to "[t]he salesmen in general felt that there was a need for a union," and he denied that Gilbert himself had expressed such a belief ("We never talked about that"). Whatever the correct version, it seems likely that Bruce would draw from such a con- versation an accurate understanding of Gilbert's posi- tion. ' 5 Pierorazio, a strong union supporter, testified without refutation that just before the election Greenbaum told him that he had done a good job for Respondent and, as 14 Subsequently, Bruce testified that another occurred after the elec- tion. 'I Gilbert testified that on more than one occasion Bruce "in essence" said to him, "I know you are going the other way, but I hope you go my way." This may well have occurred, but Gilbert's testimony is uncertain enough to make me reluctant to rely on it without reservation. long as he continued to do so, he would have a job with the firm "with or without the Union." Greenbaum said to Pierorazio that he "also told that to Gil." The infer- ence seems inescapable that Greenbaum would have had no reason to point out to Pierorazio and Gilbert that their jobs were secure "with or without the Union" other than a belief that they were both identified with the Union. 6 George Prevost, asked if he knew that Gilbert was prounion, replied, "I didn't know. All I had was personal opinions, right?" He further testified about his knowl- edge that Gilbert, Pierorazio, and another salesman had been employed by a unionized car dealer at a prior time. On the basis of the foregoing, and the fact that we deal here with an 18-person bargaining unit in which both management and employees worked so closely to- gether, I am quite willing to infer that Respondent knew the vigorous union supporters within the unit. As stated above, Gilbert was told on July 17, almost 2 months after the election, that he was being laid off for "economic reasons." The General Counsel essentially grounds the claim of discrimination on alternative the- ories: one, that there was no economic need for a layoff of any salesman, and that the decision was taken wholly in reprisal against Gilbert's prounion stance; and, the other, that even if the decision to reduce the force can be economically justified the selection of Gilbert rather than another employee was a choice motivated by an un- lawful intent. The testimony proffered by Respondent in this case was often inconsistent, illogical, improbable, and hyper- bolic. For example, when I raised a question as to the amount of money Respondent would save by laying off a salesman such as Gilbert, who basically worked on com- mission against a guaranteed draw, Bruce testified that the cost of keeping Gilbert on would have been "prob- ably a few hundred dollars" a month, and then said "we were saving a few dollars" as a result of the layoff. After a hiatus in the hearing, Greenbaum came on with a list of "direct" and "indirect" costs attibutable to Gilbert's retention which would be "saved" by laying off Gilbert; the estimated savings amounted to more than S1,200 per month. By and large, the list is ludicrous.'7 It appears, rather, that the only reasonable estimate of savings re- sulting from the layoff of a salesman would be no more than the "few hundred dollars" adverted to by Bruce on one occasion. 'e Bruce freely conceded that Pierorazio's feelings about the Union were "well known"; he was "very vocal about it." '7 Without going into detailed explanation which the transcript and commonsense easily afford, I note that Greenbaum's figures include $600 of "Lost Sales," by which he apparently means that, if Gilbert sells only six cars a month and the remaining salesmen sell an average of eight cars, the layoff of Gilbert would actually result in the sale of Gilbert's antici- pated six cars plus two more. On such a theory, it would be a continually losing game to have Gilbert in Respondent's employ. Other saved "ex- penses," such as office supplies, office help, computer expense, etc., are caused by the sales of cars, and would be incurred if any salesman sold the cars which Gilbert might otherwise have sold. The idea that Respon- dent would have saved $100 in advertising as a result of Gilbert's antici- pated short-term absence is absurd; clearly, Respondent did not immedi- ately reduce its advertising budget. I see no point in going further with this list except to note a "heat" saving (in July) of $5 per month, asser- tedly effected by Gilbert not being there to open and close the door. 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Against this suspicious overkill indulged in by Green- baum, however, must be considered certain indisputable facts. Like many automobile dealers, Respondent suf- fered a severe economic decline in the first half of 1979. Evidence of record shows that, comparing the periods January-June in 1978 and 1979, its new-car department net profit dropped from $77,313 to $7,954; its used-car department net profit decreased from $69,981 to $12,894; and its overall net profit fell from $183,975 to an actual loss of $6,953. New-car sales for the first 6 months of 1979 went to 742 in contrast to the 881 cars sold for that period in 1978. Bruce testified that 1979 was, "without any question," the worst of his 9 years with Respondent. In June, after receiving the May financial report, Re- spondent took several actions which seem consistent only with a desire to decrease costs. Haslett, a new-car salesman, was laid off.' 8 Dugan, a new-car saleman whose production was thought to be low, was fired.' 9 John Arnetta, a used-car salesman, was laid off. A new- car salesman named Day, hired in March, was moved into the service department, and two service writers were discharged when Day transferred in. A "car jockey" was fired and an existing employee, an appren- tice mechanic, replaced him. There is no evidence that any new employee was hired to replace the mechanic. Certainly, then, it appears that Respondent was seek- ing to institute economies as early as June.2 0 As previ- ously discussed, I can see no great savings from the layoff of Haslett and Arnetta and the termination of Dugan, but, so far as I am concerned, these actions indi- cate that, for presumptively legitimate reasons, Respon- dent believed by June that some trimming of personnel was in order.21 Another trouble spot in Respondent's case, however, at least insofar as the reason for laying off and terminat- ing car salesmen goes, is the seemingly contradictory tes- timony given by Bruce and Greenbaum, who agreed that they jointly made the layoff decisions in June and July. Bruce gave much testimony about the need for econo- mies, and yet, as earlier discussed, in answer to questions about the savings resulting from the layoff of Gilbert, Bruce emphasized less the cost element than the purport- ed interest of spreading a limited number of potential customers over a restricted sales force: Probably a few hundred dollars [of cost savings] .... I am not certain of the figure, but there was 18 Haslett was, however, retained as an "outside" salesman, who had the privilege of bringing customers to the showroom, but was not re- quired to put in time on the selling floor. He also was permitted the use of a demonstrator car. There is no contradiction of Bruce's testimony that Haslett, who Bruce referred to as "kind of semi-retired," was actual- ly laid off, and that he, unlike Gilbert, asked for the privileges of being retained as an outside salesman and allowed a demonstrator car. 1g Dugan filed a charge with the Board, but later withdrew it. 20 While it had hired two new salesmen, Day and Brooke, in March, after an admittedly "disastrous" January and February, this does not seem unreasonable in the light of the customary "big March-April" which Bruce testified, without contradiction, should be expected, but which never materialized. Day was hired to replace a salesman who had quit, so in effect only one new employee was hired in March. 21 Of course, the replacement of the two service writers by Day re- sulted, if I am reading Bruce's somewhat ambiguous testimony correctly, in the saving of one man's salary. This also appears true of the replace- ment of the car jockey by the unreplaced apprentice mechanic. another factor there, too, which was an intangible. We had to have salesmen waiting on these custom- ers that were capable of closing deals and selling jobs. We were desperate to start selling cars and get things going again. Plus, the fact that we had other salesmen there that were doing a good job, com- paratively, but not really earning as much money and they were getting disgruntled. We had to protect their earnings, by the expression in use on the floor-cutting up the pie. There were a lot of factors that came into the temporary layoff.2 2 Greenbaum, who had purportedly discussed with Bruce the decision to lay off Gilbert, mentioned not a word about the other "intangibles" referred to by Bruce. Asked the reason for the layoff of Gilbert, he was direct: For economic reasons. We were losing money ... Everything was significant at that time. When you're losing money you do everything you can to try to turn it around. The disparity between the two witnesses on this point is, it goes without saying, highly suspicious. It might easily be thought to indicate that some other motive lay behind the release of Gilbert, given that Bruce and Greenbaum both testified that they had a discussion of the need to let a salesman go in July. Still, one can see the possibility that two longtime associates like Bruce and Greenbaum might sense, after looking at the June fi- nancial statement, that it would be advisable to lay off one salesman, without thoroughly and formally discuss- ing their perceived (and differing) reasons for such a move. The inescapable fact, as immovable as Gibraltar, is that in June Respondent laid off two salesmen and dis- charged another, even though, as discussed, those actions would not appear to have yielded any notable econo- mies. June having evidently been no more profitable than May, it seems quite difficult to say that the decision to lay off still another salesman in July was in any way a materially significant departure from its prior business policies, whatever the reason for those policies (and I must presume here that the June personnel actions bore no relationship to the union activity). Assuming a nondiscriminatory purpose in deciding to lay someone off, the question arises as to whether the choice of Gilbert was related to his union activities. Here again, the testimony given by Respondent seems uncer- tain and contradictory. Bruce testified that after the financial statement for June came out in the second week of July, showing, as he and Greenbaum already knew, that business had not improved they decided to lay off another salesman. Bruce's testimony on the decisional process in making such a layoff is not a paradigm of consistency. He first said that "[v]olume is the criteria [sic]" for the decisions made in June, but then agreed that seniority played a 22 Bruce could not, when asked, recall any "specific" complaints from disgruntled salesmen. 234 SUBURBAN CHEVROLET, INC. role in July (as discussed below). Speaking of the June layoffs, he said, in answer to a question about whether 1978 production was considered, that "[t]here are a lot of things as far as was it [sic] a number factor. There are some judgment calls that you have to make. .... When you are looking at your overall production, you looked, is this man going to come back to life. We had a person, for instance, in 1978 that had a continual drop in 1978 and yes, you look at it." However, Bruce's very next two sentences belied this discretionary approach: "In the layoffs that we made, these were not factors. We had very mechanical reasons." Bruce went on to explain that the "mechanical reasons" were a comparison of the volume of sales per salesman since January 1979. The evidence includes a breakdown of new-car sales by each salesman for the first 6 months of 1979. Bruce says he drew the chart up in early June, prior to the per- sonnel actions taken that month, averaging the perfor- mance of each new-car salesman for the first 5 months of the year, and then updated the chart after the June fig- ures were in.23 The tabulation shows that of the 10 new- car salemen still employed in July, the 2 lowest produc- ers for the preceding 6-month period were Gilbert and salesman Kress, with identical records of 41 cars sold, or 6.83 per month. 24 The General Counsel argues that, assuming that Re- spondent had a justifiable basis for laying off one sales- man, it should logically have selected either Kress or Brooke rather than Gilbert. As to Kress, the General Counsel points out that the record shows that on three occasions in 1979 Kress failed to earn his monthly draw (for a total of $405.14), whereas Gilbert failed to do so only once in 1979 (in the amount of $178.38). Bruce testi- fied that he never examined the draw moneys expended by Respondent in deciding the choice for layoff.2 5 But since Greenbaum testified that "if a person makes a draw, that is another factor" in the cost of retaining a salesman, and since the need for economizing was, de- pending on which testimony one examines, an extremely important consideration in laying off, an argument based on Kress' excess of draw over Gilbert's seems sensible. There is, however, a clearly overriding distinction be- tween Kress and Gilbert which Bruce testified he used to break the tie between them, and that is Kress' senior- ity. At the time of layoff, Kress had been with Respon- dent for more than 31 years; Gilbert had been employed for slightly less than 4 years. It is difficult to imagine any employer laying off a veteran like Kress rather than Gil- bert simply because Kress' draw had been $227 more than Gilbert's over a 6-month period. 23 Not shown on the document is salesman Day, whose transfer to the service department had, according to Bruce, already been decided upon by the end of May. Bruce testified that Day actually transferred to the service department "approximately the first of June, in that area." I note, however, that the parties stipulated that Day sold four cars in June. It is, of course, possible that Day had a smashing first few days in June, al- though his record of one sale in March, one car in April, and three cars in May suggests otherwise. 24 The remaining figures are Ziehl, 7; Brooke, for the 4 months that he had worked, 7.25; Haderman, 7.83; Voith, 9; Isett, 10.33; Harper, 10.67; Hagner, I ; and Pierorazio, 14.17. 25 The evidence shows that once an employee is paid a draw amount, the Company does not recoup it from future commissions. The testimony relating to the standard applied to de- termine layoff is most unsatisfying. Assuming, as Green- baum testified, that the layoff was dictated by strictly "economic" factors, one would suppose that Respondent would choose for layoff the salesman whose retention threatened to benefit the Company least. The General Counsel proposed at hearing that since there were sales- men whose average commissions as of the end of May (G.C. Exh. 4) were less than Gilbert's, and since the commission is a reflection of the profit brought in by the salesman,2 l it was irrational for Respondent to have used only a number-of-units standard and to have totally ig- nored comparative gross profits previously earned by the salesmen. Much testimony followed this line of inquiry, with Bruce taking what I found to be the startling posi- tion that Respondent had no interest at all in encourag- ing the amount of gross profits achieved by a salesman, and that the name of the game was strictly numbers. His explanation, to some extent, made sense: holding out for too much profit could result in the loss of a cus- tomer and subsequent bad repute for the firm; a customer sold even at a low profit is nonetheless a customer, who then patronizes the service and parts departments, brings friends in, may potentially buy a used car, etc. The claim, however, that Respondent has no interest at all in the amount of gross profits is obviously overdrawn, not only on its face but as shown by other evidence. Thus, it was brought out in the testimony of Bruce and Green- baum that Respondent awards a $25 bonus to the sales- man with the most number of units sold in every 10-day period, and pays more bonuses for salesmen who sell 12 and 16 cars in a month, but also gives a $25 award every 10 days to the salesman with the highest single gross profit sale for that period, and, according to Greenbaum, gives a bonus for each car sold at full list price.?7 In ad- dition, Pierorazio credibly testified that Bruce has told him to "get as much gross profit as I can," and that Bruce has refused to approve deals with some profit in them simply because there was not enough profit. This is another subject about which, as I see it, Re- spondent defensively went further than it needed to in disclaiming its interest in gross profits, and, accordingly, again raised doubts about Respondent's general trustwor- thiness. The General Counsel argues expressly for only one other possibility as a substitute for Gilbert, and that is Brooke. As indicated, Brooke began employment in March and thus had only 4 months of sales in the 6- month period upon which the selection was purportedly based. In that 4 months, he sold 29 cars, thus averaging 7.25 per month, or slightly better than Gilbert's 6.83 (41 sales in 6 months). On the other hand, as the General Counsel argues, a flat comparison does a serious disserv- ice to Gilbert, because computed into his average are the two "disastrous" (Bruce's word) months of January and February in which Gilbert sold a total of only nine cars. For the 4 months in which they were both employed, Gilbert outsold Brooke by 32 to 29. Brooke also had an 25 Basically, salesmen receive 25 percent of Respondent's gross profit on a sale. 2' Bruce, surprisingly, testified that he was unaware of this bonus. 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD average commission for the period March-May of only $100.88, as compared to Johnson's 5-month average of $160.59. At the hearing, Bruce testified that it did occur to him to compare Brooke and Gilbert only "from the time of Mr. Brooke's employment until the date [he] decided to make the layoff," but that he did not do so. Bruce did not explain his reasons for rejecting such a comparison. He further conceded knowing in July, however, seem- ingly in contradiction of the foregoing testimony, that during their period of common employment Gilbert had sold more cars than Brooke. In explaining his decision to favor Brooke, Bruce testified that Brooke was a very ambitious young man who had been "calling and coming in" to the dealership beginning in December 1978 to plead for a job. Brooke is a "[v]ery aggressive, very per- sonable man. Very clean. Very neat desk. Everything about him just generally good. Lot of desire and ambi- tion." The reason Bruce chose to retain Brooke over Gil- bert was not only that he had a slight edge in average cars sold for the entire 6-month period (7.25 to 6.83), but also that "this young fellow showed an awful lot of po- tential. He had a lot of aggressiveness. He did all the things that you should do to try to get volume and get things going, really worked at. He is an ex-policeman. He hung notices in the police precincts to sell auto- mobiles. Constantly made phone calls. He is the kind of young man that you want to represent your organization to start with." In my view, as discussed infra, the decision to prefer Brooke is seriously suspicious. First, however, I shall deal with an argument advanced by the General Counsel with respect to the manner of recall of Gilbert. Bruce testified that "[c]onditions got better in August," and Respondent decided to increase its staffing. The General Counsel would infer an unlawful attitude from Respondent's leisurely recall of Gilbert who, Bruce testified, he had said "would be the first salesman that [Respondent] called back."2 8 I do not think the evidence is clear enough on this point to warrant such an infer- ence. Bruce said that when business seemed to improve in August, and new 1980 models were about to be unveiled, he and Greenbaum decided to hire. He placed newspaper advertisements for salesmen which ran between August 25-September 5. A new man was hired about September 10. Haslett was recalled in "[t]he first part of Septem- ber." Gilbert, however, did not return to work until Sep- tember 17; Bruce's explanation for this was that, with the unfair labor practice complaint pending, Respondent was advised by its lawyers that they would handle Gilbert's recall. A letter in evidence shows, that on August 31, Re- spondent's attorney notified a Board agent of an uncon- ditional offer to Gilbert to return to work without back- pay because "conditions have improved somewhat." By letter written in September the attorney made an offer of such employment directly to Gilbert, and he returned to work on Monday, September 17. as Gilbert essentially corroborated this testimony: "The desk would be there waiting for me as soon as things happen-as soon as the economic situation got better. I would be called back." The reasoning behind the channeling of the reinstate- ment offer through counsel seems understandable. That counsel chose first to communicate to the Board an offer of reinstatement to Gilbert may indicate nothing more than personal inexperience.2 9 In the circumstances, I would not consider the delay in making an offer of rein- statement a substantial proof of bad faith. Nonetheless, the evidence as a whole leads me to conclude that Gil- bert was the subject of unlawful discrimination. As discussed, despite the discrepancies between Bruce and Greenbaum about the value and objective of the layoff of a salesman in July, it is indisputable that, by the end of June, Respondent had suffered a drastic decline as compared to the same period in 1978. It is further a fact that in June, aside from the other personnel actions pre- viously noted, Respondent discharged one car salesman and laid off two others. The legitimacy of those actions not being in question, I do not, as I have said, see how I can conclude that Respondent, searching around July to pull itself out of a net loss position, might not have per- ceived and welcomed a benefit of some sort in temporar- ily letting another salesman go. Despite the suspicion jus- tifiably invited by the failure of Bruce and Greenbaum to agree on what was to be accomplished by the layoff, when a businessman is losing money, even the "few hun- dred dollars" per month suggested by Bruce might seem an inviting saving. But it is the very urgency of the need, stated by Greenbaum, to make every dollar count, which brings into question the choice of Gilbert for layoff. Of the salesmen remaining in July, Gilbert and Kress were in fact the low unit producers for the entire 6-month period, and the preference given to such a veteran em- ployee as Kress seems defensible. The decision to favor Brooke, a new employee, over Gilbert is, however, most suspect. It seems to me-I know of no other words for it-to- tally irrational for Respondent to favor Brooke over Gil- bert. If the purpose of the layoff was strictly "econom- ic," as Greenbaum stated, the manifestly sensible choice for retention was Gilbert. During his 4 months of mutual employment with Brooke, Gilbert had outsold Brooke by 32 to 29. As of the end of May, in addition, Brooke's average commission was substantially smaller than Gil- bert's, $100 per car compared to $160.30 Moreover, Gil- 29 Counsel represented at hearing that, after writing to the Board on August 31, he received notice from a Board agent that the reinstatement offer should be made directly to Gilbert, which counsel subsequently ac- complished on September 11. so Since the commission represents a percentage of the gross profit made by Respondent, this means that Respondent was earning 60 percent more on each car sold by Gilbert. Every car sold by Gilbert, that is, af- forded Respondent some $480 of gross profit; every car sold by Brooke gave Respondent a return of only $300. Although Respondent's witnesses testified that they were unaware of these figures (Bruce said, "At the time, I don't think so"), I cannot believe that they were ignorant of such a substantial difference between the records of the two men. G.C. Exh. 4 shows that as of the end of May (the latest figures in evi- dence), Gilbert had the fifth highest average commission of the 11 sales men shown on the exhibit. Salesman Hagner is, for unknown reasons, omitted from the exhibit. At that time, Gilbert ranked ahead of Pierora- zio, Dugan, Haderman, Ziehl, Brooke, and Haslett in average commis- sions. Another conceivable choice for layoff, on the objective facts, but Continued 236 SUBURBAN CHEVROLET, INC. bert had been with Respondent for almost 4 years as of July 1979, and Brooke just 4-1/2 months. While the dif- ference in their seniority was not as marked as that be- tween Gilbert and Kress, it surely seems significant enough to have warranted the kind of consideration re- ceived by Kress. After careful study of the evidence, I simply cannot accept Bruce's testimony. If, in fact, he examined Gener- al Counsel's Exhibit 2, the summary of new-car sales, for the purpose of choosing for layoff the salesman whose departure would least exacerbate Respondent's serious fi- nancial situation, there simply would be no sensible basis for singling out Gilbert rather than Brooke. This conclu- sion may be attacked as an attempt to substitute my own judgment for Respondent's. I think it may be regarded, as the General Counsel argues, as an analysis of Respon- dent's action by its own declared standard and as a credi- bility resolution that Respondent is not being truthful. Greenbaum said that the purpose of the layoff was for "economic reasons"; "when you're losing money you do everything you can to try to turn it around." Given Re- spondent's truly serious financial situation, which it pressed with great vigor at the hearing, I do not believe that it would ordinarily have passed over for temporary layoff a new employee of 4 months tenure and chosen in- stead a 4-year veteran who had outsold, both in units for the 4-month period and gross profits for 3 of the 4 months shown, the new employee. That simply makes no objective sense in the light of the purpose stated by Greenbaum. 3' Moreover, the seniority consideration given to Kress was simply ignored when it came to Gil- bert. That the preference was given to a 4-month em- ployee over a 4-year one is rather hard to reconcile with Bruce's testimony that he was "emotional" in parting with Gilbert.3 2 The evidence leads me to believe that Gilbert would not have been chosen for layoff in more neutral circum- stances. Section 10(b) requires that a violation be made out by "the preponderance of the testimony taken," and I think that the General Counsel has carried that burden. In so concluding, I rely on the great likelihood that Re- spondent recognized that Gilbert was an important union partisan; on the depth of Respondent's antipathy to unionization, as disclosed by statements of its representa- tives; on the general aura of untrustworthiness spawned by the often contradictory and exaggerated testimony of its witnesses; and on the inexplicable and implausible de- viation between its stated purpose for laying off an em- not argued by the General Counsel, was Ziehl. At the end of May, he had sold 40 cars at an average commission of $120.01, and Gilbert had sold 34, with an average commission of $160.59. In June, however, Ziehl sold only two cars, and Gilbert sold seven. Assuming a continued ratio of commissions, by the end of June Gilbert had yielded Respondent a gross profit, on the sale of 41 cars, close to $5,000 more than Ziehl had. 3' And to the extent that Bruce took into account Brooke's aggressive- ness and potential, that is both a long term prospect, having little to do with the immediate needs of the business, and a departure from his asser- tion that he applied a "mechanical" test. 32 It has been held that "ignoring seniority" is a factor properly con- sidered in finding an 8(a)(3) violation. N.LR.B. v. American Casting Ser- vice, Inc., 365 F.2d 168, 172 (7th Cir. 1966). ployee in July and the action taken to accomplish that end.3 3 CONCLUSIONS OF LAW 1. Suburban Chevrolet, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Store Employees Union, Local 692, United Food and Commercial Workers International Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off C. Gilbert Johnson on July 17, 1979, Respondent violated Section 8(a)(3) of the Act. 4. By making an unlawful threat to close the business, by coercively interrogating an employee, and by at- tempting to engage in surveillance of a union meeting, all in 1979, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Other than as set out above, Respondent has not violated the Act as alleged in the amended complaint in this case. THE REMEDY In order to remedy the unfair labor practices found herein, I shall recommend that Respondent be required to cease and desist therefrom and take certain affirmative action. Having found that Respondent discriminatorily laid off C. Gilbert Johnson on July 17, 1979, I shall recommend that Respondent be ordered to make Johnson whole for any loss of earnings he may have suffered from the time of his termination to the date of his reinstatement.3 4 His backpay shall be computed in accordance with F. W Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I shall also recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 33 There is, in addition, the fact that when Gilbert was laid off he was not, as Haslett was, given an opportunity to remain affiliated as an "out- side" salesman and to keep his demonstrator car. There is no evidence to contradict Respondent's claim that Haslett asked for these privileges and Gilbert did not. Nonetheless, the precedent having been set by Haslett only a month before, it would seem normal, if Bruce were as "emotional" about Gilbert's departure as he purported to be, that such an offer would be made to Gilbert. Moreover, as the General Counsel argues on brief. the fact that Greenbaum counted savings on the demonstrator as a benefit from Gilbert's layoff indicates that Gilbert would not have been afforded that privilege had he asked for it. I note also Gilbert's unchallenged testimony, which I accept, that shortly after the election Bruce stated, in the presence of George Pre- vost, that "they would have to work harder to keep the Union out of there, even though we had won the election." The necessary implication is that Respondent would continue to take steps thought necessary to prevent the Union from becoming a viable representative. 34 It seems clear that Johnson was otherwise fully reinstated when he returned to work on September 17. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER3 5 The Respondent, Suburban Chevrolet, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Laying off or otherwise discriminating against em- ployees for assisting Retail Store Employees Union, Local 692, United Food and Commercial Workers Inter- national Union, or any other labor organization, or for engaging in other union activity. (b) Coercively interrogating employees about their union sympathies and activities, threatening employees with reprisals for exercising rights guaranteed them by the Act, and attempting to engage in surveillance of union activities. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: as 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. (a) Make C. Gilbert Johnson whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records neces- sary or appropriate to analyze the amount of backpay due. (c) Post at its place of business at Baltimore, Mary- land, copies of the attached notice marked "Appen- dix." 36 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that all complaint allegations found here not to be substantiated be, and they are, dis- missed. 36 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 238