Carriage Ford, Inc.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carriage Ford, Inc and John Morrison, Charles Rogers, Raymond Mayfield, Harold Daugherty, Carl Pisacrita and Edward Vanover and Stanley Daniel Paige and Peary Wilson. Cases 9-CA- 19149, 9-CA-19397-1, and 9-CA-19397-2 25 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 1 March 1984 Administrative Law Judge James T Youngblood issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order We affirm the judge's finding that the Respond- ent violated Section 8(a)(1) and (4) of the Act when it discharged Peary Wilson and permanently laid off Stanley Paige because they refused to give false testimony to the Respondent in the form of an affidavit which was to be used by the Respondent in connection with the Board's investigation of an unfair labor practice charge filed against the Re- spondent We reverse, however, the judge's finding that the six used-car salesmen were discharged for complaining concertedly to the Respondent regard- ing the changes in hours and working conditions in violation of Section 8(a)(1) of the Act For the rea- sons stated fully below, we find that these six em- ployees quit their positions voluntarily because of their dissatisfaction with the changes in the Re- spondent's work schedule The facts as found by the judge are as follows The Respondent operates an automobile and truck retail dealership in Clarksville, Indiana On 19 No- vember 1982 2 Lonnie Hacker, the Respondent's new-car manager, announced to the entire sales force that a change would be implemented, effec- tive immediately, in the Respondent's work hours Under the previous work schedule, the salesmen were required to work shifts from either 9 a m to ' The Respondent has excepted to some of the judge's credibility find ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 All dates are in 1982 unless indicated otherwise 4 p m or 2 to 9 p m on Monday, Wednesday, and Friday, and from 9 a m to 6 p m on Tuesday, Thursday, and Saturday Under the newly imple- mented system, each salesman was required to work from 9 a m to 9 p m on Monday, Wednes- day, and Friday, and from 9 a m to 6 p m on Tuesday, Thursday, and Saturday 3 Although both the new- and used-car salesmen were dissatisfied over the new work hours, no one complained to the Respondent at that time On 24 November, the used-car salesmen decided to complain to the Respondent's president, David Kelley, about their dissatisfaction with the new work schedule On their way to see Kelley, they were observed by Wayne Sword, the Respondent's used-car manager, who stopped the men and asked where they were going The group informed him that they were going to talk to Kelley about the new hours Sword asked the men to meet with him first They met with him in the used-car building, at which time they expressed their dissatisfaction with the new work schedule and with a help- wanted advertisement for new- and used-car sales- men that the Respondent had placed in the local newspaper The salesmen requested an opportunity to speak with Kelley, but Sword asked them to give him some time and he would voice their com- plaints to Kelley and that, in turn, he would inform them of Kelley's decision Later that day, Sword informed Kelley and the other managers of the used-car salesmen's com- plaints and stated that the used-car salesmen had threatened to quit if the work schedule was not re- turned to its previous format 4 Kelley reaffirmed that he, not the salesmen, ran the dealership, and that the new work schedule would not be changed Following this meeting, Sword informed the used- car salesmen that everything would be worked out to their satisfaction by 26 November On 26 November, Kelley held a regularly sched- uled sales meeting He informed the employees that the newly implemented work schedule would not be changed and accused the employees who had complained about the change in hours of not caring whether the Respondent went bankrupt The used- car salesmen attempted to explain that they did care, but Kelley stated angrily that the group who caused the trouble on Wednesday could leave or could just go on out the door The six used-car salesmen then left the Respondent's premises, thanking Kelley for giving them the opportunity to work at the Respondent's facility and wishing him a Under both systems however, each salesman was given either Tues- day or Thursday off 4 Sword admitted at the heanng that the used car salesmen had never stated that they would quit if the hours were not changed 272 NLRB No 59 CARRIAGE FORD 319 well in his business. As they were leaving, Kelley instructed the used-car salesmen to return the keys to their demonstrator automobiles. He also asked the business manager to follow the salesmen to make sure that they did not damage the facility or equipment. After they left, Kelley remarked, "[Mow that we've gotten rid of some troublemakers, we'll have our sales meeting." Kelley then changed the new hours. Based on the above, the judge concluded that the six used-car salesmen were discharged in viola- tion of Section 8(a)(1) of the Act because they con- certedly complained to the Respondent about their hours and working conditions. In support of this conclusion, he relied on Kelley's statement that the used-car salesmen could leave or could just go on out the door, on Kelley's retrieval of the keys to their demonstrator automobiles at this 26 Novem- ber meeting, and on his conclusion that the used- car salesmen were not given an opportunity to talk to Kelley about their concerns. Contrary to the judge, we find that the used-car salesmen quit their employment voluntarily. Thus, we find that Kelley's statement that they could leave or could just go on out the door was not a statement of discharge. 5 Rather, it was a statement giving them the option to abide by the Respond- ent's legitimate work rules or find other employ- ment .' The employees chose the latter course. The voluntary nature of their decision was demonstrat- ed by the deliberate manner in which they depart- ed, thanking Kelley and wishing him well. Thus, at this time, as well as before the meeting, the em- ployees had the opportunity to express their con- cerns about the new work hours. In this context, Kelley's instructions that the used-car salesmen return their car keys before departing does not sup- port a finding that the employees were discharged, because his action is as consistent with their having quit as with a discharge. 5 See Jack Thompson Oldsmobile, 266 NLRB 824 (1983), remanded 684 F 2d 458 (7th Cm 1982) In Thompson, supra, a car salesman protested a new rule implemented by his employer dealership, prompting the general manager to reply that if the salesman did not like the new rule he could "get the hell out" On remand, the Board accepted the circuit court's de- cision that the new rule was legitimate, and held that the employee's de- parture constituted a quit, not a constructive discharge. The Board fur- ther concluded that the employer's policy change was not so Intolerable that the employee could be found to have been forced to resign rather than accept the policy change. Id at 825 See also KDEN Broadcasting Go, 225 NLRB 25 (1976) (the employer's statement that "if" an employ- ee could not work the assigned shift she was no longer employed at KDEN was found to fall short of a discharge) 6 Kelley's decision to lengthen the car salesmen's work shifts was a le- gitimate business decision reflective of management prerogative which largely went uncontested The Respondent ascertained the need to pro- vide a larger sales force per shift to accommodate the incoming custom- ers, and, in order to preserve the existing salesmen's positions, the Re- spondent increased their work hours rather than hiring additional sales- men who would compete directly with them for commissions See Mun- ford, Inc., 266 NLRB 1156 (1983) Similarly, Kelley's remark—"now that we've gotten rid of the troublemakers"—does not support a finding that the salesmen were terminated. Kelley was angry with the salesmen, as his statements demonstrate, but he did not terminate them, or force them to resign. They left voluntarily.7 Accordingly, we reverse the judge's finding that the six used-car salesmen were discharged for con- certedly complaining to the Respondent regarding the changes in hours and working conditions in violation of Section 8(a)(1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Carriage Ford, Inc., Clarksville, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off, discharging, or otherwise dis- criminating against its employees because they have filed charges or given testimony under the Act, or because they refuse to give false testimony, to be used by the Respondent in connection with the Board's investigation of charges. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Unless reinstatement has already been of- fered, offer Stanley Paige and Peary Wilson imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings they may have suffered as a result of the dis- crimination against them, in the manner set forth in the remedy section of the decision. (b) Post at its facility in and around Clarksville, Indiana, copies of the attached notice marked "Ap- pendix." Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- Under these circumstances, we do not agree with our dissenting col- league that the Respondent's subsequent unlawful action shed light on its actions at the meeting It was the salesmen, not the Respondent, who walked out While the Respondent's later attempts to improve its litiga- tion posture were unlawful, those actions could not change the nature of the previous actions by the employees 8 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER DENNIS, dissenting in part Contrary to my colleagues, I do not believe the record supports their conclusion that the used-car salesmen voluntarily quit employment A few days before 26 November 1982 the Respondent an- nounced a change in work hours Both new- and used-car salesmen were dissatisfied about the change The used-car manager promised to voice the used-car salesmen's complaints to President Kelley On 26 November, at a sales meeting, Kelley told employees the new work hours would not be changed and accused the complaining em- ployees of not caring whether the Respondent went bankrupt When the used-car salesmen at- tempted to talk to Kelley, he angrily told them they could leave or just go on out the door, and he did not permit them to speak As the used-car salesmen left, Kelley instructed them to return their demonstrator car keys and instructed another management official to follow the salesmen to ensure that they did no damage to the facility After the used-car salesmen were gone, Kelley said to the new-car manager, "[Mow that we've gotten rid of some troublemakers, we'll have our sales meeting" Kelley then announced a change in the new work hours Kelley's anger, his interruption of the used-car salesmen and refusal to allow them to speak, his telling the salesmen to just go on out the door and to leave their demonstrator car keys, and his remark about "getting rid of troublemakers"—all these facts lead me to conclude, as did the judge, that "the used car salesmen did not walk off the job but were in fact told to leave by Kelley which is tantamount to termination" I also believe this conclusion is buttressed by the finding of other vio- lations on which my colleagues and I agree In pre- paring a defense to the used-car salesmen's unfair labor practice charge, the Respondent sought to have employees swear the salesmen had voluntarily quit, and those who refused were unlawfully dis- charged This conduct strongly suggests that the Respondent in fact discharged the used-car sales- men and was trying desperately to cover up In sum, I would find in agreement with the judge that the used-car salesmen engaged in pro- tected concerted activity, and because of their ac- tivity the Respondent terminated them in violation of Section 8(a)(1) APPENDIX Notice To Employees POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or permanently lay off employees because they refuse to give testimony in connection with the National Labor Relations Board's investigation of charges WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act WE WILL offer immediate and full reinstatement to Stanley Paige and Peary Wilson to their former jobs, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suf- fered as a result of our discrimination and other re- lated conduct against them, with interest CARRIAGE FORD, INC DECISION STATEMENT OF THE CASE JAMES T YOUNGBLOOD, Administrative Law Judge The consolidated complaint which issued on April 15, 1983, alleges that Carriage Ford, Inc (Respondent) dis- charged seven of its employees and permanently laid off one employee in violation of Section 8(a)(1) and (4) of the Act The Respondent filed an answer admitting the jurisdiction of the Board and that certain individuals were supervisors within the meaning of the Act, but denied the commission of any unfair labor practices This matter was heard before me on July 12 and 13, 1983, in Louisville, Kentucky All parties were present at the hearing and following the hearing the Respondent and the General Counsel filed briefs which have been duly considered 1 On the entire record in this matter, and from my ob- servations of the witnesses and their demeanor, and after due consideration of the briefs filed herein, I make the following 2 1 By motion dated November 1, 1983, the Respondent requested leave to file a supplemental bnef with an attached decision of the National Labor Relations Board in Munford Inc , 266 NLRB 1156 (1982), which Issued on August 1, 1983 There being no objections the supplemental bnef by the Respondent is accepted 2 The facts found herein are a compilation of the credited testimony, the exhibits, and stipulations of fact, viewed in light of logical consisten- cy and inherent probability Although these findings may not contain or refer to all of the evidence, all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this dee! Continued CARRIAGE FORD 321 FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent is an Indiana corporation with an office and place of business in Clarksville, Indiana, where it is engaged in the retail sale of automobiles and trucks The Respondent admits, and I find, that it is an employer within the meaning of Section 2(6) and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES The Respondent began its operations on September 1, 1982 3 In November, the Respondent employed approxi- mately 11 salesmen, 6 of 'whom were used-car salesmen and 5 were new-car salesmen Prior to November 19, the salesmen were required to work shifts which were from 9 a m to 4 p m and 2 to 9 p m on Monday, Wednesday, and Friday The employees worked from 9 a m to 6 p m on Tuesday, Thursday, and Saturday It was the Respondent's practice to conduct a sales meeting on Monday, Wednesday, and Friday beginning around 8 30 a m Additionally, the Respondent conducted weekly managers' meetings and it was at a weekly managers' meeting during the week of November 15 that David Kelley, owner and president of the Respondent, an- nounced that the salesmen would no longer work shifts on Monday, Wednesday, and Friday, but would all work from 9 a m to 9 p m on these days Several of the man- agers present expressed some degree of opposition to this change in hours, however, Kelley did not change his po- sition On November 19, New-Car Manager Lonnie Hacker announced this change in work hours to the entire sales force The employees were told that the new schedule was effective immediately Although it appears that both new- and used-car salesmen were dissatisfied over the new work hours, no one complained to the Respondent at that time On November 24, the used-car salesmen decided to complain to Kelley about their dissatisfaction with the new work schedule and in a group started walking across the parking lot on their way to see Kelley in his office They were observed by Wayne Sword, the used- car manager, who stopped the, men and asked where they were going He was told by the group, specifically by John Morrison, that they were going to talk to Kelley concerning the hours 4 Sword asked the men to meet mon may appear to contradict my findings of fact, I have not disregarded that evidence but have rejected it as incredible, lacking m probative weight, surplusage, or irrelevant Credibility resolutions have been made on the basis of the whole record, including the inherent probabilities of the testimony and the demeanor of the witnesses Where it may be re- quired I will set forth specific credibility findings 3 Unless otherwise indicated all dates refer to 1982 4 In his testimony Sword stated that they made the comment that they were not going to work those hours" All of the employees who testified concerning this conversation testified that at no time did they state that they were not going to work the hours They testified that they were concerned about the hours To the extent that there is a discrepan- cy between the testimony of Sword and the employees, I credit the testi- mony of the employees over that of Sword Sword did admit that the employees never said they would quit with him first, and that he was busy at the time but he would meet with them in a few minutes About an hour later the used-car salesmen met with Sword in the used- car building, and discussed their dissatisfaction with the new work schedule and a help-wanted advertisement for new- and used-car salesmen that the Respondent had placed in the Louisville Courier Journal, the local news- paper The salesmen requested an opportunity to speak with Kelly, but Sword asked them to give him some time and he would voice their complaints to Kelly Sword also told the salesmen that he would inform them of Kelley's decision START HERE The record reflects that later in the day Sword spoke with Kelley and informed him of the used-car salesmen's complaints He also told Kelly that the used-car salesmen threatened to quit if the work hours were not changed back to shifts This record also reflects that Sword told the other managers that the used-car salesmen were threatening to quit if the hours were not changed As in- dicated, on cross-examination, Sword admitted that the used-car salesmen did not say they would quit if the hours were not changed During the meeting between Sword and Kelley all of the other managers joined in the discussion and from the record it appears that Kelley considered the possibility of returning to the old sched- ule but ultimately decided against it Kelley testified that when Sword told him that the used-car salesmen were threatening to leave, he was upset, that he had decided who was going to run the dealership, him or the sales- men, and that he wanted to get that point across to the salesmen in the November 26 meeting At the end of the meeting Kelley informed the managers that the new schedule would not be changed On November 26, Lonnie Hacker, Respondent's new- car manager, conducted the regularly scheduled sales meeting and announced that the newly implemented work schedule would not be changed Kelley was present at this meeting and announced that the newly im- plemented work schedule would not be changed and ac- cused those employees who had complained about the change in hours of not caring whether he went bankrupt Morrison and the other used-car salesmen attempted to explain that they did care, but Kelley angrily stated the group who caused the trouble on Wednesday could leave or could just go on out the door The employees were not given an opportunity to talk and Morrison and the other five employees left, thanking Kelley for giving them the opportunity to work at the Respondent's facili- ty and wishing Kelley well in his business As they were leaving Kelley instructed Morrison and the other five used-car salesmen to return the keys to their demonstra- tor automobiles Kelley also instructed the business man- ager, Robert Worrall, to follow the men to the used-car department to ensure that they did not damage the Re- spondent's facility or equipment After the men filed out of the room Kelley turned the meeting back over to Hacker who stated, "Now that we've gotten rid of some troublemakers, we'll have our sales meeting" At this point Kelley announced that he could change the newly installed work schedule, and informed the re- maining employees that henceforth they would only be 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required to work until 6 p.m. on the day preceding their regularly scheduled off day. On January 6, 1983, Morrison, Rogers, Mayfield, Daugherty, Pisacrita, and Vanover filed charges with the Board. Thereafter, Kelley instructed the business manag- er, Robert Worrall, to prepare an affidavit for the em- ployees and managers for use in investigation of these charges. That statement reads as follows: TO WHOM IT MAY CONCERN: I was an attendant at the November 27, 1982, Friday Sales Meeting at Carriage Ford Inc. Clarks- ville, Indiana. Management stated that they were not going to change the salesmen's scheduled hours. Due to not changing the hours some salesmen walked out be- cause they did not want to work the hours sched- uled. They walked out of their own free will. Those salesmen walking out were Harold Daugherty, Ray- mond Mayfield, John Morrison, Carl Pisacrita, Charles Rogers, and Edward Vanover. Salesman /s/ Subscribed and sworn to before me this ____ day of , 1983 Notary Public State of Indiana County of Clark My commission expires August 22, 1985 Worrall and Hacker circulated copies of this affidavit among Respondent's employees and managers and asked them to sign it. New-car salesmen Stanley Daniel Paige and Peary Wilson refused to sign the statement. Paige testified that he refused to sign because he believed the prepared statement was not true and Wilson refused to sign because he was not present at the November 26 sales meeting. Peary Wilson testified that somewhere between Janu- ary 10 and 15, 1983, Hacker called him into his office and handed Wilson the above-mentioned affidavit. He in- formed Wilson that the dealership needed some help; that he wanted Wilson to help him; and he wanted him to read the affidavit and to sign it. Wilson stated that he read the affidavit and told Hacker that he could not sign it because he was not there on that date, and if he signed the affidavit he would be perjuring himself. Hacker re- sponded, "You mean, you're not going to help me?" Wilson told Hacker that he could not do it. Wilson testi- fied that he had a premium demonstrator automobile be- cause he was the top salesman for the month of Decem- ber, and that he was going to turn his car in on the first of January, but Hacker had told him to keep on driving it as he was doing a good job. A premium demonstrator is a large expensive automobile, whereas average sales- men drive a small car like a Ford Escort. When he re- fused to sign the affidavit Hacker told him to turn in the premium demonstrator. Hacker told him to drive an Escort or nothing. Wilson testified that following his refusal to sign the affidavit he was no longer given any referrals of poten- tial sales by management and had to start making ap- proximately 25 phone calls a day, which he had not been doing at that time. Wilson testified that on January 31, 1983, he was working with a man and wife customer, who were inter- ested in purchasing a Ford pickup truck, called a Ranger. He said that the couple had come in from Indi- ana in a car and they wanted to purchase a truck. He said the couple wanted to trade in the car and a pickup truck that was back at the farm. They wanted to test drive the new Ford Ranger and in so doing would go to the farm and the wife would drive the pickup truck trade-in back. Wilson said that he explained this to Hacker, and Hacker said that it was all right. In the absence of the lot boy, Hacker also assisted him in getting the Ford Ranger ready, so the customers could test drive the vehicle.5 Wilson testified that after the couple left he went back to the used-car department to get the used-car manager to make an appraisal on the vehicle brought in by the couple. Sword was not there so Wilson took the keys up to Hacker. He stated that Hacker asked him to shut the door and said, "I want you to get your shit and get out of here." He said, "There's another salesman that's going to work these customers when they return." And "I want your stuff out of here." Wilson asked him what he meant and Hacker reiterated that he wanted his ass out of there. When Wilson asked what he had done Hacker responded, "Don't say any more," and asked Wilson for the keys to his demonstrator. Hacker then went to Wilson's office and took the keys to his demonstrator out of his desk and called the lot boy to get his demonstrator and to take Wilson home. Wilson testified that at no time did Hacker tell him why he was being discharged. When Wilson asked to speak to Kelley, Hacker responded, "You're not going to talk to any damn body," and "in fact, Mr. Kelley wasn't in and wouldn't be in all day long." Wilson said at this point Hacker went into a rage. Wilson did not leave the dealership immediately and when Hacker went into a rage he went upstairs to Wor- rail's office and asked Worrall if Kelley was there. When Worrall responded no, Wilson informed him that he had been discharged, and that he did not know why. At this time Hacker came to the top of the stairs and told Wilson that he had his stuff ready and to get out of there. As Wilson was leaving he stopped at Charlie Heck's office and told him what happened. Heck was surprised and responded, "You've got to be kidding." At this point Hacker was at the doorway and said, "I got your stuff ready and I want you to get out of here." The lot boy drove Wilson home. Wilson stated that later on that afternoon Heck called him to advise him that he should contact Kelley because Hacker was spreading rumors that he had been drinking with the customers that day, that he was drunk, and that 5 The truck that the couple was interested in was sitting on a tripod in front of the dealership Hacker helped Wilson get the truck off the tripod. CARRIAGE FORD 323 Hacker had found a bunch of whiskey bottles in his desk drawer Wilson contacted Kelley who informed him that he had not had a chance to check out the problem but right now it was out of his hands Wilson denied that he ever drank with a customer, that he was drinking with customers on that date, or that he ever drank while working Lonnie Hacker testified that he terminated Wilson be- cause several times he had smelled alcohol on Wilson's breath and on that particular day he was pretty well under the influence He said one time before he smelled alcohol on Wilson's breath, and he asked him about it and was told that it was some type of medication that Wilson was taking He stated that on January 31, 1983, Wilson was staggering and there was something about his speech, that it was different, and that he was shaking very badly and that his breath smelled of alcohol His eyes were glassy and red He confronted Wilson and told him that he felt like Wilson had been drinking, and that he was not going to tolerate it and that he was going to terminate his employment He said that he told Wilson to get his things together and leave Although Hacker had been told that Wilson was drinking on the job, he admit- ted that he never saw Wilson drink on the job Stanley Paige testified that he began working for the Respondent in October 1982 as a new-car salesman and that he worked there until February 23, 1983, that in the latter part of his employment Lonnie Hacker was his im- mediate supervisor Paige testified that, on the Wednes- day before Thanksgiving, he was walking by Hacker's office on the showroom floor and he heard Dave Kelley say, "What are we going to do about the problem in the used car department?" He heard Lonnie Hacker say, "that problem will be over with by Monday" At that point Hacker saw Paige and shut the door Paige also testified that around January 10, 1983, Bob Worrall, the business manager, came into his office and told him that he needed his help and that he wanted him to sign a document Worrall handed him a copy of the prepared affidavit, as set forth above, and after Paige looked it over he told Worrall that he did not agree with it and that he would not sign it Worrall asked him to think about it, at which point Paige told him to leave it and that he would think about it Later that day about 5 or 6 p m, Lonnie Hacker called Paige into his office and told Paige that he wanted to read him something and he read a copy of the affidavit to Paige Hacker slid it across the desk and told Paige to read it, and then asked him if he understood it, and said, "I need you to help me, I need you to sign it" Paige responded, "Well I can't do that," and advised that he did not agree with it and he did not want to sign something that he did not believe was true Hacker told Paige that he hoped he would reconsider Paige testified that, following this meeting with Hacker, his treatment by management changed in that he was no longer given any call-ins by management, he had to make phone calls, he was not given any of the so-called bones, and that he had to start making cold-marketing telephone calls Paige testified that later on around January 17 or 18, Hacker called him into his office again and told him to shut the door Hacker told Paige that he was having problems with Peary Wilson in that he was not a team player and that he was not part of his team Paige asked what he meant, and when Hacker would not elaborate, Paige stated that Wilson was the hardest working salesman at the dealer- ship and he did not understand the problem Hacker said, "Well, I've got problems with him He's just not part of my program" Paige testified that prior to Wilson's discharge he had a conversation with Charles Heck in which Heck told him, "You and Peary should be looking for something because both of you are going to be down-the-road motors" (According to the testimony of the witnesses in this proceeding this means fired or pressured to resign ) Heck explained only that the subject came up at a man- ager's meeting and that was the plan Paige further testified that also around January 20 he had a conversation with Hacker which he initiated He said he was telling Hacker about his treatment by the Company and about Hacker's wanting him to help train some new salesmen, that he was working extra hours, and he was through doing extra work without getting any compensation for it Hacker told him that he did not do what was important to help Hacker, and when he asked what he was talking about, Hacker responded, "the lawsuit" Page responded he did not want to get in- volved and that he was not going to commit perjury for Hacker At this point Hacker got ugly and Paige left his office Paige also testified that the day after Wilson was terminated he had a conversation with Kelley, initiated by Paige, relating to his request for a transfer to the used-car department When he was pressured by Kelley as to why he wanted to transfer he told Kelley that Hacker was eventually going to terminate him Kelley told Paige that he thought he was wrong, that Hacker had big plans for Paige Paige stated that Kelley might be right but he would prefer to work in the used-car de- partment because he did not want to work for Hacker because he felt that he was being set up Kelley asked why he felt that way, and Paige responded, "Well, the way Peary Wilson was treated, how am I supposed to feel?" He said that Wilson had worked himself to death and he was terminated, and why should he feel secure Kelley stated that Hacker had said that Peary Wilson was a bad influence on Paige and had influenced Paige not to help them When Paige said, "What are you talk- ing about?" Kelley responded with the statement, "You know, with the lawsuit" Paige testified that in the morning on February 23 he was called to Hacker's office Hacker told him that he needed him to sign a paper stating that he understood they were having a reduction in force and that he was going to be laid off indefinitely Paige said he told Hacker that it was utterly ridiculous, that "in the car sale business you do not lay people off, you might lay off hourly people," but not salesmen who work on commis- sions Hacker responded that they were having a reduc- tion in force, that it was out of his hands, and that he, Paige, was one of the people selected When Paige asked when he would be recalled, both Hacker and Sword merely laughed He was told to clear out his desk and that the lot boy would drive him home 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paige testified that, to his knowledge, no salesman had ever been laid off while he worked there, that it was not the practice to lay off salesmen who worked for a com- mission. Paige testified that after the layoff he had a conversa- tion with Hacker who told him that he had to lay Paige off, that it came from higher up, that he had no choice. Paige further testified that he had several conversations with Heck, one immediately after Peary Wilson was ter- minated, in which Heck told him that he would be next. In a later conversation, after Paige's termination, Heck asked him if he would like to return to Carriage; that he could if he signed a waiver for what had transpired in the past. This record clearly shows that at the time of and shortly after the so-called reduction in force and layoff of Paige, Respondent hired new employees. Respond- ent's response to the reason it chose to lay off Paige rather than a salesman with less experience was merely that Paige did not have the proper attitude. Discussion and Conclusions The General Counsel argues that the used-car sales- men were discharged or constructively discharged be- cause they concertedly raised objections over the Em- ployer's change of the working hours. The General Counsel also argues that both Wilson and Paige were discharged because they refused to sign affi- davits in connection with the charges filed by the used- car salesmen and therefore were discharged in violation of Section 8(a)(4) of the Act. The Respondent, on the other hand, argues that the used-car salesmen walked out of their own volition be- cause they objected to the change in hours by the Re- spondent and that the Respondent did not discharge them and certainly did not discharge them for concerted activities. With regard to both Wilson and Paige, the Re- spondent contends that Wilson was discharged for drink- ing on the job and that Paige was indefinitely laid off and not terminated, and denies that it committed any unfair labor practices. As it appears from my recitation of the facts concern- ing the used-car salesmen above, it is clear that I have concluded that the used-car salesmen did not walk off the job but were, in fact, told to leave by Kelley, which is tantamount to termination. At the same time Kelley took their demonstrator automobiles from them indicat- ing that they were finished. To the extent that there is a difference in testimony between Respondent's witnesses and the car salesmen, I have credited the testimony of the car salesmen and have concluded that the Respond- ent discharged these employees because of their protect- ed concerted activities, in violation of Section 8(a)(1) of the Act. I have carefully evaluated the testimony of all of the Respondent's witnesses with regard to the termination of both Wilson and Paige. Particularly, I have evaluated the testimony of Hacker as opposed to these two employees. I have concluded that both Wilson and Paige testified straightforwardly and their testimony had a ring of truth, whereas the testimony of Hacker and the other witnesses of management who testified did not have that same ring of truth. In fact, when pressed, testimony of the manage- ment officials with regard to both Wilson and Paige became very wishy-washy and it became very obvious that the Respondent was trying to cover up an otherwise unlawful discharge of one employee and an unlawful ter- mination of another employee guised as a layoff. Hacker's reason for discharging Wilson was because Wilson was intoxicated on the day of his discharge. This certainly does not hold water. Hacker himself testified that he had never seen Wilson drinking on the job, that he only suspected Wilson of drinking, and, on the one time that he had confronted Wilson, he had been in- formed that Wilson was on medication. There is no evi- dence in this record to indicate that Wilson was not on medication. None of the management officials testified that they had ever seen Wilson drinking on the job, or that they had ever thought he was drunk. On the con- trary, the evidence indicates that Wilson was under med- ical care and was taking some form of medication. Thus, it is my conclusion that the discharge of Peary Wilson was because of his refusal to sign the affidavit submitted to him by the Respondent and to cooperate with the Re- spondent in the investigation of the charge filed by the used-car salesmen. There is no other real explanation. Wilson's record was good up to the date of his dis- charge. So far as I can determine, he had never been reprimanded for drinking on the job, although he had been questioned one time and that had been satisfactorily explained, in that he was under medication. Wilson was a car salesman and had made some very outstanding records. There does not appear to be any valid reason Wilson would have been discharged by the Respondent other than the fact that he had not cooperated with the Respondent in the investigation. In fact, on the day that he was discharged he was making a sale of a Ford truck. Therefore, it is my conclusion that the Respondent's ter- mination of Peary Wilson was because of his refusal to sign , an affidavit favorable to the Respondent in the in- vestigation of the charge filed by the used-car salesmen. The Respondent's reasons assigned were purely pretex- tual and a subterfuge, and I do not credit Respondent in this regard. Similarly, the termination of Paige appears to be paral- lel with that of Wilson. Paige, too, refused to cooperate in the investigation of the charge and sign an affidavit in support of the Respondent. It is quite apparent from the reading of this record that there was no need to lay off any new-car salesmen, that under any form of seniority or otherwise, Paige would have been the last employee laid off because he was a good salesman, had a good record, and there were other employees junior to him. Furthermore, from the credited testimony of Paige, it is quite clear that the Respondent discharged Paige because he refused to cooperate in connection with the investiga- tion of the charge filed by the used-car salesmen. There- fore, it is my conclusion that Wilson and Paige were dis- charged and permanently laid off because they refused to assist the Respondent during the investigation of the unfair labor practice charge in Case 9-CA-19149. The Respondent wanted Wilson and Paige to sign sworn statements which it intended to use to respond to the CARRIAGE FORD 325 unfair labor practice charges Both refused to sign such statements This resulted in the Respondent's considering them not to be "on his team" and it therefore discharged Wilson and permanently laid off Paige These employees refused to sign the statements because, in Wilson's case, it would have been patently false because he was not at the meeting and had no knowledge of the incident and, in Paige's case, he clearly concluded that the statement was false The Board has held that the protection of Sec- tion 8(a)(4) not only protects employees from discharge or discrimination because they filed charges or gave tes- timony under the Act, but also extends to the investiga- tory stage of the charge and extends to employees who without malice refused to give testimony voluntarily against a fellow employee Most certainly the protection of the Act would extend to employees who refused to give false testimony to support an employer's position in connection with the investigation of a charge filed pursu- ant to the Act Certainly, the Act protects these two em- ployees and I so find Therefore, it is my conclusion that the Respondent's discharge of Wilson and permanent layoff of Paige because they refused to assist the Re- spondent during the investigation of charges is clearly violative of Section 8(a)(4) of the Act 6 III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth above, occurring in connection with the Respondent's oper- ations, 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 ob- structing commerce and the free flow of commerce IV THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act As I have found that the Respondent discharged John Morrison, Charles Rogers, Raymond Mayfield, Harold 6 See Teamsters Local 420, 257 NLRB 1306 (1981), and C E Wilkinson & Sons, 255 NLRB 1367 (1981) Daugherty, Carl Pisacnta, and Edward Vanover because they concertedly complained to Respondent regarding the changes in hours and working conditions in violation of Section 8(a)(1) of the Act, and that the Respondent discharged Peary Wilson and permanently laid off Stan- ley Daniel Paige because Wilson and Paige refused to give false testimony in the form of an affidavit which was to be used by the Respondent in connection with the Board's investigation of the charge in the instant case, I shall recommend the that the Respondent be ordered to offer these employees immediate and full reinstatement, unless reinstatement has already been offered, to their former jobs or, if their jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the Respondent's discrimination and other un- lawful conduct against them until such time as the Re- spondent makes them a valid offer of reinstatement with interest See F W Woolworth Co, 90 NLRB 289 (1950), Florida Steel Corp, 231 NLRB 651 (1977) On the foregoing findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1 Carriage Ford, Inc , the Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 By discharging John Morrison, Charles Rogers, Raymond Mayfield Harold Daugherty, Carol Pisacnta, and Edward Vanover because they concertedly com- plained to the Respondent regarding the hours and working conditions, the Respondent has violated Section 8(a)(1) of the Act 3 By discharging Peary Wilson and permanently laying off Stanley Daniel Paige because they refused to give false testimony to the Respondent in the form of an affidavit which was to be used by the Respondent in connection with the Board's investigation of the current charge, the Respondent has violated Section 8(a)(4) and (1) of the Act The above-described unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication I