Melody Oldsmobile - GMC, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Melody Oldsmobile - GMC, Inc. and American Federation of Professional Salesmen. Cases 13- CA-14896 and 13-CA-14954 June 24, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 28, 1977, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of the Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Melody Oldsmobile - GMC, Inc., Cedar Lake, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) Refusing to refer to salesmen in an evenhand- ed manner information calls from prospective cus- tomers because they engage in union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent asserts that the Administrative Law Judge's resolutions of credibility, findings of fact, and conclusions of law are the result of bias, and otherwise excepts to certain credibility findings made by the Administrative Law Judge. After a careful examination of the entire record, we are satisfied that the allegation of bias is without merit. There is no basis for finding that bias and partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsers witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949), "IT)otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." Furthermore, 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We find no basis for reversing his findings. We fully agree with the Administrative Law Judge, for the reasons stated in his Decision, that employee Behrens' illegal disconnection of the 230 NLRB No. 63 odometer on his demonstrator car served only as a pretext for discharging him in retaliation for his support of the Union. 2 In his Conclusion of Law 3(a), the Administrative Law Judge inadvertently placed Sales Manager Leonard Van Vessen's implicit threat that he would discharge any salesman he heard was involved in union activity as occurring in early November 1975. In accordance with the Administrative Law Judge's own factual finding and the evidence in the record, we hereby correct the time of the threat to October 1975. 3 Par. l(c) of the recommended Order requires Respondent to cease and desist from "Refusing to refer to salesmen in an evenhanded manner information calls from prospective customers," without adding the qualifi- cation "because they engage in union activities." Accordingly, we shall modify the Order in this respect. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with dis- charge or other reprisals because they engage in union activities. WE WILL NOT discharge or otherwise discrimi- nate against employees because they engage in union activities. WE WILL NOT refuse to refer to salesmen in an evenhanded manner information calls from pro- spective customers because they engage in union activities. WE WILL NOT subject salesmen to the threat of discharge for failing to meet sales quotas because they engage in union activities. WE WILL NOT announce the abolition of sales bonuses because salesmen engage in union activities. WE WILL NOT forbid a reasonable number of personal telephone calls to or from salesmen because they engage in union activities. WE WILL NOT prohibit salesmen from taking their meals together because they engage in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL offer to Richard Behrens immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and reimburse him for any loss of earnings he incurred as a result of our discriminatory dis- charge of him. MELODY OLSDMOBILE- GMC, INC. 440 MELODY OLDSMOBILE - GMC, INC. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: This case involves automobile salesmen at a car dealership. The issues are whether the dealer made threatening statements, questioned a salesman, discharged another, and imposed new restrictions and requirements on others for the purpose of squelching their union organizing. As set out hereinafter, I find the employer did unlawfully discriminate against one salesman and interfered with the protected rights of all salesmen in a number of ways. These proceedings originated with unfair labor practice charges filed November 21, and December 9, 1975,1 and amended January 5, 1976, by the American Federation of Professional Salesmen (herein the Union) against Melody Oldsmobile - GMC, Inc. (herein Respondent). A com- plaint based on these charges issued February 6, 1976, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein the Act). At the commencement of the hearing herein, the complaint was amended to allege additional violations of Section 8(a)(1). Respondent answered the complaint, including the amendment, denying the commission of unfair labor practices. The issues posed are whether Respondent unlawfully threatened salesmen with discharge or other reprisals for engaging in union activity, discontin- ued evenhanded referral to salesmen of inquiry calls, coercively interrogated a salesman about union organiza- tional activity and promised him benefits if he would favor Respondent rather than a union, unlawfully imposed sales quotas on the salesmen, denied them the use of dealership telephones for personal calls, and forbade them to have their own telephone line on the premises; and whether Respondent discharged salesman Richard Behrens because of his union activity or because he disconnected the odometer cable on his demonstrator. Further issues raised at the hearing are whether Respondent unlawfully an- nounced the abolition of sales bonuses, forbade salesmen congregating on the sales floor, and banned their taking meals together. These matters were heard before me at Chicago, Illinois, on May 17 and 18 and September 13, 1976. Based on the entire record,2 including my observation of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE EMPLOYER INVOLVED As its names implies, Respondent is an Oldsmobile automobile and GMC truck dealer. It is a corporation engaged at Cedar Lake, Indiana, in the retail sale and service of new and used automobiles and trucks. During the calendar year preceding issuance of the complaint, a period representative of its operations, Respondent's gross revenue exceeded $500,000. During the same period it All dates herein are in 1975 unless otherwise indicated. 2 The record includes, inter alia, Resp. Exhs. I and 3 supplied after the close of the hearing. purchased and received goods valued in excess of $50,000 directly from outside Indiana. The complaint alleges, the answer admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Certain of Respondent's officials figure in the events involved in this case. These are Samuel McIntyre, its president, William Ogborn, its sales manager from about September 1974 until April 1975, and Leonard Van Vessen, its sales manager since July 5, 1975. II. THE LABOR OROANIZATION INVOLVED The complaint alleges, the Union admits, the record evidence shows, and I find, that the Union (the Charging Party here) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union Activity and the Representation Proceeding On October 27 three of Respondent's salesmen (George Adams, Richard Behrens, and James Cigalina) signed applications for membership in the Union authorizing it to represent them in collective bargaining respecting wages, hours, and other conditions of employment. The next day the Union mailed to Respondent a letter (which Respon- dent received October 29) claiming to represent a majority of Respondent's salesmen, requesting that it recognize and bargain with the Union as the exclusive representative of all the salesmen. The Union enclosed copies of the three authorizations and also a copy of a representation petition which it later filed with the Board on October 29 (Case 13- RC-13875) seeking certification as the representative of the salesmen. The letter suggested that the petition would be withdrawn if Respondent voluntarily recognized the Union. Respondent did not voluntarily recognize the Union, but on November 21, with the Union, signed a Stipulation for Certification Upon Consent Election agreeing to a Board election to be held December 5 in a unit consisting of all new and used automobile and truck salesmen, but excluding office and plant clericals, automobile mechanics, semi-skilled employees, parts department employees, guards and supervisors as defined in the Act. As stipulated, the election was conducted on December 5. Of six eligible voters, three voted for the Union, one voted against the Union, and two ballots were challenged. One of the challenged ballots was that of Richard Behrens, the alleged discriminatee in the present matter. On December 31 the Board's Regional Director for Region 13 issued his report on challenges in which he sustained the challenge to the other challenged ballot which had been cast by Willard Rice. Without resolving the Behrens challenge, the Director concluded that the Union necessar- ily had received a majority of the valid votes and recommended it be certified. On January 30, 1976, the 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board sustained the Regional Director's findings and certified the Union. B. The October Threat The General Counsel contends that in late October Respondent's then Sales Manager Leonard Van Vessen in effect threatened the salesmen with discharge if they became involved with a union. In support of this contention James Cigalina, an ex- salesman for Respondent, testified that a week or 10 days prior to the October 27 card signing he and Dave Barnett, another salesman then working for Respondent, were conversing on the sales floor on how to organize a union. According to Cigalina, Barnett was telling him about union organizing at other dealerships and about whom to contact for information regarding the Union. At about that point Van Vessen walked up and said, "The first thing I hear about anything about a union, I'll blow the first man out the door." Although Cigalina did not impress me as being a particularly reliable witness, I credit his account and find that Van Vessen made the statement attributed to him. Barnett did not testify, so the record is without the benefit of his version. Although there is no explanation as to why he did not testify, I draw no inference therefrom because at the time of the hearing he was no longer employed with Respondent and it is not apparent that he was within the control of any party. Behrens corroborates Cigalina to the extent that Van Vessen made such a statement. I rely in part on this corroboration in crediting Cigalina even though Behrens' testimony impressed me as somewhat overreaching and even though Cigalina, who testified first, did not place Behrens at the conversation. The latter inconsistency does not seem crucial because of the substantial lapse of time since the incident and because it was normal for salesmen like Behrens to be around the showroom floor. Finally, I rely on the fact that Van Vessen did not specifically deny the incident. Having found that Van Vessen made the statement at a time when he was sales manager, I further find that his statement, which is attributable to Respondent, interfered with and coerced the salesmen (who were employees) in the exercise of rights guaranteed them under Section 7 of the Act and was, therefore, an unfair labor practice within the meaning of Section 8(a)(1) of the Act. This incident further establishes employer knowledge of union activity in or about the third week of October and also tends to show managerial antipathy toward union organizing. C. The Discontinuance of "Phone-Ups" Respondent, like most automotive dealers, often receives telephonic inquiries from the general public seeking information about automobiles, prices, and the like. Such inquiries, which are not directed by the caller to any particular salesman, are known as "phone-ups" and in the past were automatically referred to salesmen on a rotating basis. These "phone-ups" in some instances lead to sales and are a valuable means of contacting prospective buyers. 3 Cigalina's resignation is not alleged to have resulted from discrimina- tion. The General Counsel contends that beginning about November 1, shortly after Respondent learned that Adams, Behrens, and Cigalina had signed union cards, it discontin- ued the practice of referring such calls by rotation. There is no dispute as to what the established practice was respecting "phone-ups." Respondent contends that no change occurred in that practice. In support of this position McIntyre testified that company policy never changed. I do not credit his testimony in this respect. Based on the testimony of Cigalina and Behrens, I find that immediately following the deliver of the copies of the signed union cards to Respondent, those salesmen who had signed cards (Adams, Behrens, and Cigalina) no longer received "phone-up" referrals, although the other salesmen did. In resolving this credibility conflict in favor of the salesmen and against management, I rely on the corrobora- tive aspects of the testimony of Cigalina and Behrens. In addition, on or about December 17 or 18, Cigalina protested to Sales Manager Van Vessen about what he described as the systematic screening of incoming tele- phone calls which resulted in Cigalina not receiving some personal calls as well as not being referred his share of the "phone-ups." In answer Van Vessen said, "You knew what you got into when you did that." Cigalina agreed that he did. He then asked Van Vessen's opinion as to whether he should quit or not, noting that he had already spoken to other automotive dealers. According to him, Van Vessen replied, "I can't tell you. You know Sam (McIntyre) will get you sooner or later." According to Cigalina, he then said, "I can't work under this pressure. I can't follow up on my leads. I quit."3 I credit Cigalina's account. It is specific. It involved an occasion which he was likely to remember. Although Van Vessen testified extensively, he denied only parts of the conversation. In his testimony he denied that about the end of October or at a later time he told salesmen, "Sam (McIntyre) was going to get them." Based on the foregoing, I find that Respondent's management denied the union supporters their normal share of referred "phone-ups" following Respondent's knowledge that three salesmen had signed union cards. I further find that such conduct interfered with the sales- men's Section 7 rights and constituted an unfair labor practice within the meaning of Section 8(a)(1) of the Act. D. The Interrogation and the Loan The General Counsel also contends that McIntyre unlawfully interrogated Cigalina and promised him bene- fits if he would favor Respondent over the Union. This is supposed to have occurred in mid-November. As already noted, the three salesmen who signed union applications did so on October 27. Cigalina testified that 2 or 3 days thereafter he asked McIntyre for a loan of $750 which he needed in connection with his purchase of a house. McIntyre told him he could not loan him the money through the Company but that he could arrange for him to borrow from a bank. According to Cigalina, McIntyre said, 442 MELODY OLDSMOBILE - GMC, INC. "I do this for people who are for the Company." He then asked, "You're for the Company?" Cigalina replied, "Yes." During the same conversation McIntyre inquired, accord- ing to Cigalina, "Do you know anything about the Union?" Cigalina replied, "No." Mcintyre at that time telephoned the bank and made the arrangements for a loan to Cigalina who then went to the bank and obtained the money. In his testimony, McIntyre places the request for a loan about October 20, prior to the time of union card signing. He agreed that he told Cigalina the Company could not lend him the money and he also agreed that he telephoned a local bank where he sat on the board of directors and made arrangements for Cigalina to borrow the money. He denied, however, placing any conditions on the loan, such as that Cigalina favor the Company, and he also denied that he asked whether he was for the Company. According to McIntyre, the Union was not mentioned. Regarding this incident, I credit McIntyre rather than Cigalina. I reach this resolution because I think Cigalina erroneously placed the time 2 to 3 days after October 27. By then, Mcintyre knew who the union supporters were and it is unlikely he would at that point have asked him if he knew anything about the Union or made inquiries for the purpose of learning whether he favored the Company over the Union. Moreover, bank records place the time of the loan application as October 20. For these reasons, I find that the credible evidence fails to establish that such inquiries were made or that Mcintyre either specifically or by implication placed conditions on the arrangements for the loan. Accordingly, the allegations of the complaint directed to the conversation to arrange the loan should be dismissed. E. The Discharge of Richard Behrens 1. The issue Richard Behrens was hired by Respondent as a salesman in April 1974 and continued in that capacity until his discharge on November 17, 1975. The General Counsel contends he was discharged because he was a known supporter of the Union. Respondent contends it was because he flouted company policy, as well as federal law, forbidding the disconnecting of odometers on demonstra- tors assigned to him. 2. Behrens' union activity As already noted, Adams, Behrens, and Cigalina signed union cards on October 27 and the Union immediately forwarded copies to Respondent along with its request for recognition. Thus, as of October 29, Respondent had knowledge that Behrens and the other two salesmen were union supporters. Sales Manager Van Vessen forthrightly admitted during his testimony that Mcintyre, Respondent's president, was upset by the fact that the Union was trying to organize his salesmen. This presumably occurred on the occasion of I The words attributed to Mcintyre appear in the transcript at pp. 98 and 165-166. McIntyre showing Van Vessen the copies of the union authorizations he had received from the Union. Three or four days after the authorizations were signed (which would put it around November 1) during a conversation on the sales floor among Behrens, Cigalina, and Van Vessen, Behrens asked Van Vessen his opinion as to whether the Union was a good idea. In reply Van Vessen offered his opinion that the salesmen had made a bad mistake, that they should never have done it. Behrens and Cigalina corroborate each other that on another occasion about a week or two after they had signed their authoriza- tions to the Union, Mcintyre approached them on the sales floor and in emphatic and obscene terms informed them that union representation would not change things for them.4 Around the same time, Cigalina inquired of Van Vessen whether there were going to be any changes. The sales manager replied, "Well, you know that you guys went against Sam (McIntyre) and he will get you sooner or later, its just a matter of time." Van Vessen again said substantially the same thing to Cigalina 3 or 4 weeks later. And on December 17 or 18, the day Cigalina quit in protest, Van Vessen in substance told him, as already noted, that the salesmen knew what they were getting into, and that those that signed the union authorizations were going to be weeded out sooner or later. Van Vessen denied generally that he had ever talked to Cigalina on the subject of salesmen signing the union authorizations or that he ever indicated to Cigalina that McIntyre was unhappy about the salesmen signing union authorizations. I do not credit these denials because the general chronology of events is consistent with, and tends to support, Cigalina's account, because the record supports the conclusion that a friendly relationship existed between the sales manager and the salesmen, and because McIntyre admittedly was unhappy about the union organizing. From the above, it is apparent that Respondent's management was cognizant of Behrens' support of the Union and also that McIntyre harbored strong antiunion feelings. 3. The new demonstrator plan When Behrens was hired in 1974, the practice in Respondent's business was to assign salesmen used cars as demonstrators with no specific restrictions or charges attached to their use. In the autumn of 1974, Respondent instituted a highly structured plan for assigning new cars as demonstrators. This was first promulgated in a memorandum on Septem- ber 15, 1974, and was verbally announced by then Sales Manager William Ogborn at a meeting of the sales staff, including Behrens, about November 1, 1974, when the new cars were about to be assigned. Under this plan each salesman assigned a new demonstrator was required to drive it to work daily. He was further required to pay into an escrow fund for that particular vehicle at the rate of $50 a month, the fund to be security against loss on the vehicle prior to or at the time of ultimate sale, with any excess in 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the event of no loss to be refunded to the salesman. In addition, the salesman was required to pay mileage at the rate of 10 cents for miles in excess of 800 per month, such charges to be deducted from the salesman's monthly pay check. The new demonstrator plan evoked strong opposition from the salesmen, especially from those who resided substantial distances from the dealership and expected to run over 800 miles per month. In an effort to soften the impact of the new plan, Ogborn emphasized that McIntyre was not interested in getting the salesmen's money. He argued that they would get back the $50 per month payment when they sold the car and that the only purpose of the mileage charge was to keep the mileage of the vehicle down.5 During the interchange at this meeting, Ogborn suggested by implication that the recorded mileage could be kept down by disconnecting the odometer cable. That idea was apparently accepted by the salesmen. Later in the meeting Ogborn, thinking better of it, tried to reverse his suggestion by telling the salesmen it was stupid, that he feared someone would get caught and justify himself by saying Ogborn had approved disconnecting odometers, and, therefore, he was denying it right then. In early 1975, a month or two after the new demonstra- tors had been assigned, Ogborn informed the salesmen at a regular sales meeting that McIntyre was unhappy because of the mileage accumulated on the new demonstrators. According to Gary Worley, then a salesman for Respon- dent, and Behrens, who corroborated each other and who I credit, McIntyre was displeased because higher mileage made the demonstrators more difficult to sell. Ogborn indicated he did not care what means the salesmen took to ensure low mileage even if it involved disconnecting the odometers. 4. 'The disconnecting of odometers Following the sales meeting just referred to, Worley disconnected his own odometer and that of Behrens. At the end of that month, one of the office bookkeepers noted that very few miles had been accumulated on Worley's demonstrator and asked him about it. He told the bookkeeper that Ogborn had approved unhooking the odometer. When Ogborn heard this he instructed Worley to reconnect it, telling him that McIntyre was upset because Worley had disconnected it and because he could get into a lot of trouble that way. Worley then reconnected his odometer. Ogborn testified that he told the salesmen that the next man who disconnected an odometer would be fired. Worley denies that Ogborn specifically threatened discharge. I credit Worley in this regard. At the time of the hearing he was at least as disinterested a witness as Ogborn and did not suffer from the embarrassing position that Ogborn found himself in after having himself suggested that odometers be disconnected. Behrens kept his odometer disconnected for about 2 weeks after Worley performed that chore for him. He then had it reconnected. Thereafter, Behrens kept his odometer disconnected half of each month. 5 It is undisputed that it is easier to sell a demonstrator with low mileage than one with high mileage. It was general knowledge among the salesmen that some demonstrator odometers were disconnected. In addition to Worley and Behrens, the salesmen who at times discon- nected their odometers included Fred Fowler (no longer with the dealership), Walt Matas, and James Cigalina. 5. Management's knowledge of odometer disconnecting Respondent takes the position that all disconnecting of odometers was unauthorized, that when management learned of disconnections prompt action was taken to correct the matter, and that if other instances of discon- nected odometers existed, such were unknown to manage- ment. As already noted, Sales Manager Ogborn had in the first instance suggested odometer disconnecting as an accom- modation to the salesmen's strong opposition to the burdensome new demonstrator plan. That under these circumstances management officials did not understand that a great deal of odometer disconnecting continued, is unbelievable. In addition, there is substantial specific evidence of management knowledge of such disconnecting. Thus, Behrens credibly testified that some time after March 1975 McIntyre borrowed his demonstrator at lunchtime at a time when the odometer was disconnected. His testimony is corroborated by Sherrie Hughes who was then an office employee of Respondent. I do not credit Mclntyre's denial that he did not borrow Behrens' demonstrator. It is reasonable to infer that McIntyre noticed that the odometer was disconnected. Behrens credibly reported, and I find, that on his return from lunch McIntyre commented to Behrens that that odometer was disconnected. Apparently no action was taken against Behrens at that time. Behrens also testified that on another occasion he took a new truck out of the dealership to show to prospective buyers and on Van Vessen's directions had the odometer disconnected. Cigalina testified credibly that he obtained Van Vessen's permission to drive his demonstrator to Memphis to visit a sick relative and that Van Vessen approved the disconnect- ing of the odometer so that Cigalina would not have to pay the mileage charge. He made the trip and on his return reconnected the odometer. According to Behrens, the subject of disconnected odometers was discussed a number of times among the salesmen in "bull sessions" in Van Vessen's presence during August. I do not credit Van Vessen's denial that such discussions occurred. For one thing Cigalina credibly testified that he overheard Walt Matas obtain permission from Van Vessen to take an expensive pickup truck to the Illinois State Fair at Springfield, Illinois. Van Vessen gave Matas permission but directed him to have the odometer disconnected because McIntyre did not want more mileage put on the truck. Thereafter, that truck's odometer remained disconnected for a substantial period of time. Respondent relies on mileage records to discredit testimony indicating that management knew of the practice 444 MELODY OLDSMOBILE - GMC, INC. of disconnecting odometers. But I do not trust those records and credit instead the testimony of the witnesses offered by the General Counsel to the effect that the odometer on Matas' truck continued to show almost no accumulated mileage until near the time Behrens' was discharged. A few days thereafter, that odometer suddenly showed substantial mileage. I also do not credit the testimony of Walt Matas in denying that the truck's odometer was disconnected because his answer was not complete. He was interrupted before he finished and although he denied that Van Vessen directed him to disconnect the odometer prior to his going to the Illinois fair, he gave his answers to leading questions which suggested the desired answer. On the other hand, he admitted that he never paid mileage on his truck, yet he lived 20 miles away from the dealership. On the basis of a 6-day workweek, that would have amounted to 960 miles in a 4-week period just going to and from work. He also admitted that he and Cigalina on occasion traded demons- trators on weekends and that the odometers on both vehicles were disconnected. George Adams, who was still employed by Respondent at the time of the hearing, testified credibly that at times he drove Behrens' demon- strator and also the Beau James pickup truck assigned to Matas, and that both odometers were disconnected. On another occasion Cigalina complained to McIntyre about the long working hours and also about the mileage charge of 10 cents, which he asserted was unfair. To this latter complaint McIntyre replied, "All you goddamn salesmen turn the speedometers back anyway." Finally, Sherrie Hughes, a disinterested witness who at the time of the hearing no longer was employed by Respondent, testified that she had heard Respondent's office manager, Carol Nord, who was assigned a company car on the same basis as the salesmen, tell McIntyre that he knew she did not turn back her odometer because she showed a lot of mileage on her car. The inference was that odometers which did not show much mileage were either disconnected or turned back. From the above I find that not only was it common practice for Respondent's salesmen to disconnect demon- strator odometers for substantial periods of time in order to avoid obvious accumulated mileage which neither the salesmen nor the management wanted, but also that McIntyre and Van Vessen knew it was common practice and allowed it to continue. 6. The decision to discharge Behrens As already noted, McIntyre was upset when he learned on October 29 that Adams, Behrens, and Cigalina had signed union authorizations. Around November 1, Van Vessen checked the mileage on the demonstrators, includ- ing the one assigned to Behrens. Behrens' odometer showed the same as it had the previous month because it was disconnected. McIntyre testified that Van Vessen told him about this "when" he took the readings. He then testified that Van Vessen told him on November 17. In any case, Respondent took no action respecting Behrens' 6 Motor Vehicle Information and Cost Saving Act, 86 Stat. 961-963 (1972), 15 U.S.C., Sec. 1981-1991. mileage until November 17 at which time Mcintyre called him into his office, informed him that his demonstrator had been sold and that McIntyre had verified that the odometer was disconnected. He told Behrens this was a violation of company policy and a violation of the law which could cost Behrens a fine of $5,000 or 5 years injail. He gave Behrens the option of either signing a confession or having McIntyre call in the state attorney. Behrens chose to sign the confession which reads: I, Richard Behrens employed as a salesman at Melody Olds and GMC Inc. was assigned a demonstrator car number 75-398, serial number 3N69K5M259934. On or about October 1, 1975 I1 did disconnect the speedometer cable on my car, I continued to operate said car through November 14, 1975, in this manner. This act was committed without the knowledge or the consent of the company for which I am employed. After he signed the statement McIntyre fired him. Before he left, Behrens expressed the hope that there were no hard feelings over the Union to which McIntyre replied, "As far as I'm concerned, there has never been a union here and there never will be." 7. The motive for the discharge of Behrens The antiunion attitude expressed by Van Vessen and particularly by McIntyre, together with the predictions by Van Vessen that McIntyre would get the union men one at a time, the statements of McIntyre indicating the futility of employee efforts to organize, plus the incidents of interfer- ence with Section 7 rights found herein, all point to a discriminatory motive for the discharge of Behrens. As against this, Respondent's defense that he was discharged for cause because he violated company policy as well as the law, does not withstand examination. Whatever the declared company policy asserted during the hearing, the evidence shows that Respondent knowingly permitted frequent and continuing disconnection of demonstrator odometers. In fact allowance of such a practice amounted to a compromise between the Company's stern policy and the strong opposition of the salesmen to that policy. To say that disconnecting of odometers was contrary to company policy simply does not square with the facts. Respondent correctly urges that the disconnecting of odometers is unlawful under Federal law.6 Disconnecting an odometer subjects the person doing so, or his agent, to civil liability for treble damages or $1,500, whichever is greater, plus costs, as well as appropriate injunctive relief. Such conduct, however, is not a crime. It is a civil violation. Such violations are not to be condoned. Nor should the National Labor Relations Act be applied in a manner to encourage violations of the Motor Vehicle Information and Cost Savings Act. On the other hand violations of that act should not be permitted to serve as pretexts to obscure violations of the National Labor Relations Act. This is what I find occurred here. 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not have a clear consistent policy in accord with the Motor Vehicle Information and Cost Saving Act. It repeatedly allowed deviation from that Act and in fact promulgated and kept in effect a demonstrator policy which encouraged violations by placing burdensome requirements on salesmen to operate their demonstrators substantial distances between home and the dealership and during work. It is noteworthy that when management instructed Worley to reconnect his odometer, no further action was taken against him. He was not discharged. But at that time no union activity was evident. Respondent acted different- ly towards Behrens when McIntyre learned his odometer showed the same mileage for 2 months running and almost concurrently learned he was one of the three union proponents. He was fired. This suspicious timing suggests that the stated reason for discharge, the disconnecting of his odometer, was a pretext. So also do the statements of Van Vessen and McIntyre, referred to above, as well as the various independent violations of Section 8(aXI) found herein. I reach this result by viewing the record as a whole and with the realization that the credibility of several witnesses on both sides of the case is suspect. But even though the case is not free from doubt I conclude that substantial evidence supports the finding that the true reason for the discharge of Behrens was not his unlawful disconnecting of his odometer but rather his allegiance to the Union, and that Respondent's purpose was to get rid of the union supporters one at a time. Thus, Behrens was the victim of discrimination which tended to discourage membership in the Union. Such conduct by Respondent violated Section 8(a)(3) and (1) of the Act. F. Postelection Crackdown The General Counsel contends that on December 6, the day after the Board election, Respondent imposed on its salesmen more onerous working requirements which violated Section 8(a)(1) of the Act. These were (1) the meeting of sales quotas as a condition of continued employment and the abolition of sales bonuses; (2) the prohibition of personal telephone calls to or from sales- men; (3) the abolition of private telephone lines for salesmen; (4) the prohibition of salesmen "huddling" on the sales floor; and (5) the prohibition of salesmen eating together.? 1. Quotas and bonuses At Respondent's dealership it was customary for the sales manager to assign to each salesman a monthly quota of vehicles to be sold. No specific detriment attached to a salesman's failure to make the quota although there have been salesmen in the past who were let go because they did not generate adequate sales. For the most part, however, management's efforts to motivate the salesmen were in the form of incentive bonuses for achieving high sales volume during a specific period of time. Thus, management by and I The complaint contains no allegations respecting sales bonuses, "huddling", or eating together. However, these matters were fully litigated at the hearing. large relied on a carrot approach rather than a stick approach. Van Vessen testified without contradiction that monthly quotas were assigned for November and that none of the salesmen met them. Sales efforts failed to reach the projected target for that month. Then on December 5 the Board election was held. On that morning McIntyre commented to Cigalina that he had not made his draw and that he had better start selling cars. Although Cigalina had on other occasions in the past failed to make his draw, this was the first time that McIntyre had ever mentioned it to him. Later that same evening Cigalina suggested to Van Vessen that management put up a bonus to stimulate sales. The sales manager rejected the idea saying there would never be a bonus, that the salesmen had really upset McIntyre, and that he was going to get them one by one. Adams corroborates Cigalina's testimony that Van Vessen said there would be no more bonuses. He recalls that Van Vessen said the reason was that, "You fellows started this." In spite of this prediction Respondent thereafter continued to have bonus programs and in fact the very next week Cigalina received a $25 bonus. Van Vessen denied that he said anything about the bonuses or that he indicated they were being denied because the salesmen had "started it." I do not credit his denial because Cigalina's testimony is corroborated by Adams. The following morning, December 6, Van Vessen held a regular sales meeting at which he announced the sales quotas for December, emphasizing that the salesmen had to make them. According to Adams, whom I credit, he clearly intimated that a salesman would be fired if he failed to make his quota. Adams recalls Van Vessen saying that, "These are your quotas and you better make them or else." Management's emphasis thus changed from monetary inducement to threat of discharge. In the past the salesmen had never been told what would happen if they failed to meet a quota. Respondent contends, first, that there was no change at all in its quota or bonus policy. It is clear, however, that the announced policy changed. There were to be no more bonuses, and sales quotas had to be met to avoid discharge. There is no evidence to show that the threat of discharge for failure to meet a quota was in fact carried out. And as for bonuses, the record shows that management in fact continued to offer them. Second, Respondent contends that sales were down and that the measures taken were warranted. The evidence, such as it is, does indicate that November sales were down. This would seem to justify some measures to stimulate sales. But there is no explanation for the switch from a positive to a negative approach, other than an effort by antiunion management to inflict reprisals on the salesmen for their coincidental support of the Union. I think the record warrants that inference and I so find. Such conduct by Respondent was an unfair labor practice within the meaning of Section 8(aXl) of the Act. 446 MELODY OLDSMOBILE - GMC, INC. 2. The ban on personal telephone calls Respondent had an established policy regarding personal telephone calls on company telephones under which a reasonable number of calls were allowed and a rule of commonsense prevailed. At the December 6 sales meeting Van Vessen instituted a new rule against the making or receiving of personal telephone calls in the dealership. According to him, "I told them they would not receive any personal calls, that our bill is getting out of hand."8 The salesmen understood that the ban applied to both incoming and outgoing calls. According to Cigalina, the salesmen could not even call their "bird dogs" (persons to whom they looked to refer sales prospects to them). Respondent's position, as expressed by Van Vessen, is that Respondent was merely continuing an established policy. That there was an existing policy against excessive personal telephoning, is clear. But as announced at the December 6 meeting, management's position was categori- cally against all calls of a personal nature. This was a stronger position than had been taken earlier and was a substantial limitation on the salesmen's privileges. In fact, implementation of the ban against incoming personal calls resulted a few days thereafter in Cigalina not receiving a call from his wife who was ill and in need of medicine. This was one of the factors which lead to his resignation in mid- December. There is no convincing explanation in the record for the ban on personal calls. Considering the timing and the union animus shown by Respondent, the only reasonable inference is that it was another reprisal against the salesmen for their union activity. I so find. I also find that such conduct was an unfair labor practice within the meaning of Section 8(aX)(1) of the Act. 3. The ban on private telephone lines In addition to being a salesman for Respondent, Adams was also involved in local politics. During much of 1975, he was a town trustee for the municipality of Cedar Lake, Indiana. In early 1975 he and Behrens, with the approval of McIntyre, arranged for the installation of a private telephone line to their desks. The two salesmen agreed to split the cost of this private line which was intended for both business and political use. Somtime in early 1975 Adams was defeated in a primary election and in the November general election someone else was elected to his position as town trustee. At the time of Behrens' discharge on November 17, Adams was, therefore, a lame-duck town trustee. Between November 17 and the election on December 5, McIntyre asked Adams whether he wished to keep the private line in view of the fact that Behrens was gone and Adams would have to stand the entire cost himself. Adams testified that he told McIntyre he wished to try it for a while to see if the cost was warranted. Mcintyre contrad- icts Adams respecting their conversation. According to him, when he asked Adams 3 days after Behrens was fired whether he wished to keep the private telephone line, Adams said he did not wish to because it was too 8 Just how the number of incoming calls could affect Respondent's bill is not explained. expensive. McIntyre specifically denied that Adams indi- cated he wanted to try to keep the private line on his own. Considering that the cost for Adams was going to double and his political needs apparently diminished, McIntyre's version seems logical. Nevertheless, I credit Adams because in general he impressed me as a more reliable witness, because what transpired later is consistent with other limitations management placed on the salesmen, and because with respect to what later happened regarding the private line, Cigalina corroborates Adams. Adams further testified credibly, and I find, that after the Board election (the exact time of which was unclear to both Adams and Cigalina) McIntyre informed Adams there would be no more personal telephone lines allowed and that the private line to his desk would be disconnected. There was no discussion at that time whether Adams could afford the line, nor was he asked whether he wished to keep it. Cigalina testified that he overhead this conversation. I find the facts are in accordance with Adams' account. But Adams also admitted that at some point, he was not sure exactly when, he informed McIntyre that he could not afford to keep the private line. Thus, Adams' position on keeping the line may have been ambiguous. In the circumstances, it is not clear that McIntyre decreed he could not have a private telephone line even if he wanted one. Accordingly, I find that the evidence fails to establish that Mcintyre imposed a limitation on Adams in this respect. I find no unfair labor practice was involved and the allegations of the complaint so alleging should be dismissed. 4. The ban on "huddling" In Respondent's business the term "huddling" refers to occasions when two or more salesmen congregate in the middle of the showroom floor for conversation. Adams testified without contradiction that in some instances these conversations were the occasion for salesmen to exchange helpful sales information. Cigalina, whose testimony is corroborated by Behrens, testified that about a week or two after the union authorization cards were signed on October 27 and again about 10 days after that, McIntyre broke up groups of salesmen huddling on the sales floor. Behrens reported McIntyre as saying, "What have you got going, a sales meeting or union meeting; get back to work." And at the sales meeting on December 6 (the morning following the election) Van Vessen, among other things, decreed there would be no more huddling of salesmen on the showroom floor. Respondent's defense is that no change in working conditions was involved. I so find. Uncontradicted testimo- ny shows that Respondent always has had a policy against salesmen congregating on the showroom floor on the ground that such might give a bad impression to incoming prospects. Respondent's implementation of its policy was intermittent in that nothing was said to salesmen about it until they became lax in their observance of the policy and began huddling again. That is apparently what happened 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here. The incidents referred to by Cigalina and Behrens in the weeks following the card signing all involved occasions when salesmen actually were huddling on the showroom floor. Van Vessen's instruction against huddling, made at the sales meeting on December 5, was subsequent to those incidents. The evidence fails to establish that the remarks of Van Vessen and those made earlier by McIntyre were anything other than the normal, albeit intermittent, implementation of established company policy. In my view no finding of unfair labor practice is warranted in the circumstances. 5. Meal breaks The normal duty hours of the salesmen spanned mealtimes. Although management had always allowed the salesmen to leave the dealership for meals, such permission was always conditioned on the requirement that the sales floor not be left unattended. Subject to that understanding it was common practice for two or more salesmen to go to lunch or supper together. The record is barren of any evidence of salesmen leaving the sales floor unattended or abusing this policy. During the sales meeting on December 6, Van Vessen, for the first time, announced that only one salesman at a time could leave the sales floor at mealtime. Thus, it became impossible for salesmen to eat together. It seems clear from the evidence that in this respect Van Vessen was announcing a new and theretofore unknown limitation on the salesmen. The ban on more than one salesman leaving the floor at a time was categorical. It was not conditional upon other sales personnel being in attendance on the sales floor. The new policy was plainly more stringent than the old. And there is no evidence of a business need for the stricter rule. The only context, then, in which to evaluate the purpose of this new rule is the timing immediately after the Board election plus the antiunion attitude of management noted elsewhere herein. In these circumstances I find that the stricter rule was a reprisal for the salesmen's union activity and the support given the Union in the Board election. Such conduct was an unfair labor practice within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, which are found to be unfair labor practices occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby committing unfair labor practices within the meaning of Section 8(aX)() of the Act, by: (a) Its Sales Manager Leonard Van Vessen, in early November 1975, telling salesmen, in effect, that if he heard about any union activity he would discharge the salesman involved; (b) Around November 1, 1975, discontinuing the even- handed referral to salesmen of telephone inquiries from prospective customers; (c) Around December 5, 1975, because some salesmen had supported the Union, imposing on them various obligations and restrictions, including monthly sales quotas sanctioned by the threat of discharge, the announcement that sales bonuses were abolished, the banning of incoming or outgoing personal telephone calls, and the prohibition of salesmen eating together. 4. Respondent discriminated with respect to employee hire and tenure of employment, and the terms and conditions of employment, thereby discouraging member- ship in a labor organization and committing unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act, by discharging Richard Behrens on November 17, 1975, and thereafter refusing to reinstate him. 5. The unfair labor practices found above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that Respondent be ordered to offer Richard Behrens immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges, and that he be made whole for any loss of earnings suffered by reason of the discrimination against him by paying him a sum of money equal to that which he would have earned from November 17, 1975, the date of his discharge, to the date Respondent offers him reinstatement, less his net earnings during such period. Backpay is to be computed in the manner set forth in F. W. Woolworth Conpany, 90 NLRB 289 (1950), with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent be required to preserve and make available to Board agents, upon request, all pertinent records and data necessary in analyzing and determining whatever backpay may be due. I further recommend that Respondent post appropriate notices at its premises in Cedar Lake, Indiana. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 448 MELODY OLDSMOBILE - GMC, INC. ORDER 9 The Respondent, Melody Oldsmobile - GMC, Inc., Cedar Lake, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or other reprisals for engaging in union activity. (b) Discharging or otherwise discriminating against employees for engaging in union activity. (c) Refusing to refer to salesmen in an evenhanded manner information calls from prospective customers. (d) Subjecting salesmen to the threat of discharge for failing to meet sales quotas because they engage in union activity. (e) Announcing the abolition of sales bonuses because the salesmen engage in union activities. (f) Abolishing the established practice of allowing a reasonable number of personal telephone calls to or from salesmen because they engage in union activity. (g) Prohibiting salesmen from taking their meals together because they engage in union activities. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the American Federation of Professional Salesmen, or any other labor organization, to bargain collectively through representatives of their own chosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, 9 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. except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Richard Behrens immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all records necessary to analyze the amount of backpay due under the terms hereof. (c) Post at its Cedar Lake, Indiana, premises copies of the attached notice marked "Appendix." to Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 'I In the event 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 449