B &, G Chrysler-Plymouth, Inc.,

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 282 (N.L.R.B. 1970)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B &, G Chrysler-Plymouth, Inc., and its successor Bill
George Chrysler-Plymouth, Inc. and District Lodge
71, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 17-CA-4068
October 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 6, 1970, Trial Examiner E. Don Wilson
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent and Charging Party filed
exceptions to the Trial Examiner's Decision together
with supporting briefs, and Respondent filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations2 of the
Trial Examiner, as modified below.
Order
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, B & G
Chrysler-Plymouth, Inc., and its successor Bill George
Chrysler-Plymouth, Inc., Kansas City, Kansas, its
officers, agents, successors , and assigns , shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.
I In his findings of fact, the Trial Examiner inadvertently states that the
Respondent , "maintains facilities at Kansas City, Kansas, and Kansas
City, Missouri ." However , the record shows that Respondent is a Kansas
corporation and its only place of business is located in Kansas City,
Kansas, at 1244-1245 Minnesota , where the unfair labor practices here
involved occurred . See Case 17-RC-035, Decision and Direction of
Election in the related representation case.
2 The Charging Party moves the Board to grant its request that the
backpay remedy for discriminatee , D. Loughery, be augmented by a cost-
of-living adjustment to reflect the decline in the value of the dollar due to
inflationary pressures since Loughery was discharged in violation of
Section 8(a)(3). In his disposition of this request , the Trial Examiner
recommends that the Board award, "at least 9-percent interest to
Loughery, in connection with money due and owing to him ." We note that
the General Counsel takes no position with respect to this issue . Under the
circumstances, we do not agree that our practice of awarding interest on
backpay pursuant to our decision in Isis Plumbing & Heating Co., 138
NLRB 716, should now be amended. Accordingly, we hereby deny the
Charging Party's request for a cost-of-living adjustment to the
discriminatee's backpay. We also reject the Trial Examiner 's recommenda-
tion that we increase the amount of interest to be added to the backpay
award.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge filed on
September 11, 1969, by District Lodge 71, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein the Union, the General Counsel of the
National Labor Relations Board, herein the Board, issued a
complaint dated December 23, 1969, alleging that B & G
Chrysler-Plymouth, Inc.,',2 violated Section 8(a)(1) and (3)
of the National Labor Relations Act, herein the Act.
Pursuant to due notice, a hearing in this matter was held
before me at Kansas City, Missouri, on January 29 and 30,
1970. The parties fully participated. General Counsel's and
Respondent's briefs have been received and considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the sale , service,
and leasing of new and used automobiles . It maintains
facilities at Kansas City, Kansas, and Kansas City,
Missouri.
In its business operations , Respondent annually purchas-
es goods valued in excess of $50,000 originating outside the
States where it does business and annually sells goods and
services valued in excess of $500 ,000. At all material times,
Respondent has been an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
About March 1969,3 the Union began an organizational
drive, among retail auto salesmen in the Kansas City,
Kansas, and Missouri areas and according to Counsel for
General Counsel the Union filed at least 50 petitions for
elections beginning in March or April. Most of the auto
I Name of Respondent appears as amended at hearing.
2 Note supra that there is a successor as named in the caption.
3 Hereinafter all dates refer to 1969 , unless otherwise specified.
186 NLRB No. 45
B & G CHRYSLER-PLYMOUTH, INC. 283
dealers were members of the Kansas City Auto Dealers
Association, including Respondent. Numerous unfair labor
practice charges were filed. About July, the Union was
granted a new Local charter for the Auto Salesmen Union
in the area. From April through July there was considerable
open and nonconcealed talks and activity at Respondent
about various phases or activities of the Union. I find as a
fact that Respondent was well aware of Delbert Loughery's
union activities from the date in April when he signed a
card for the Union until he was discharged on July 31, or
August 1.
Loughery had been employed as a new- (and sometimes
used-) car salesman for about a little more than a year,
beginning June 16, 1968.
At the time of and until his discharge he had been an auto
salesman for at least 20 years. He was 60 years old. He
signed a union authorization card on April 9, and almost
immediately made the fact known to members of
management . The Union filed a petition for an election on
April 29 and he was the sales employee witness for the
Union at the Board hearing on June 11. From the time he
signed his card until his discharge it was well known that he
was the most active supporter of the Union at Respondent.
General sales manager of Respondent, Charles E. Burris,
an agent, testified that from April until his discharge on
August 1, he considered Loughery the leading and most
outspoken advocate of the Union. He found this demoral-
ized the morale of Respondent's employees. He found that
Loughery, through his union activities, was interfering very
much with the success of Respondent's business. That was
one of the reasons4 for Loughery's termination. As
Respondent puts it in his brief, "Loughery voluntarily and
constantly told the sales manager and others about his
union activities so that it became a matter of general
knowledge."
After Loughery and Respondent's witnesses testified at
the RC hearing on June 11, the Regional Director, on July
3, directed an election to be held, but the Union filed an
8(a)(5) charge on July 16, which successfully blocked the
scheduled election. The 8(a)(5) charge was dismissed on
August 26, and there has been no election. While
Respondent's service employees have had bargaining with
Respondent, through a union for about 10 years, Respon-
dent has never bargained with a union for its sales
employees.
B. The Alleged 8(a)(1) Violations
1. The complaint alleges five separate violations of
Section 8(a)(1). I shall endeavor to consider them in order.
In paragraph 5(a) of the complaint, it is alleged that Burris,
whom I find to a supervisor and agent of Respondent, told
employees during May through July, at the new and used-
car vacilities of Respondent,5 that they would not be hired
by Kansas City area automobile dealers if they were active
in behalf of any labor organization and would have to leave
the city.
Burris is supposed to have made such threat in June,
while speaking to employees Loughery and Walter Liddle.
Allegedly, he also stated that the Local's president (Harper)
would have to go out of town to work.
Liddle named an employee, Orem, 6 as being present at
this conversation in June in Burris' office with Loughery
also present. According to him Burris, Loughery, Orem,
and he talked about different things" and employers losing
elections with the Union. Burris allegedly stated that, if
anyone got tied up too "tight" with the Union, the Dealers'
Association wouldn't let them work. He allegedly said
Harper? and a few others had done that and they couldn't
work. Burris did not say an employee could lose his job but
did say the Association would stick together and the
employee couldn't get another job. Burris added the Union
lost too many elections. Liddle worked for Respondent
from April 30 to July 10.8
On cross, he quoted Burns as saying that, if an employee
got too strong for the Union, he would not be hired by a
member of the Association.
Loughery testified that one time Burris told Liddle and
him, in June, that any salesman involved in the union drive
would not be able to work for a dealer in Kansas City.
Liddle allegedly said nothing. Loughery allegedly said he
didn't believe such could happen.
Burris categorically denied the truth of the above
testimony.
I found Burns, on the whole to be a frank and honest
witness. Were the issue solely between him and Loughery as
to credible testimony, I think I would credit Burris. But
Liddle impressed me as a sincere and honest witness with
no axe to grind, and I unhesitatingly credit his truthful
testimony as corroborated by Loughery.
I find General Counsel has, with a preponderance of the
credible testimony, established the truth of his paragraph
5(a) of the complaint. I am not impressed to the contrary by
the testimony of Bums that he hired two men who had been
active in the Union, one of whom had filed an 8(a)(3)
charge against his ex-employer.9
2. In paragraph 5(b) of the complaint it is charged that
Burris, in July, questioned an employee concerning the
outcome of the pending election.
As pointed out, Loughery's prounion sympathies were
widely self-broadcast. There was no need for Burris to
interrogate him in this regard after April.
General Counsel seems to claim in his brief that, on one
occasion in June, Bums asked Loughery if the election
came up which way he thought it would go. He also claims
that Bums admitted he asked other employees as to which
way they thought the election would go.
First, and foremost, the entire record reveals to me that
the subject of unionization or how the election would go
was a matter of common and free and unconcealed
discussion among the employees and management.
Loughery testified that he, a well-known most active
union member, on one occasion in June, was asked by
Bums, if there were an election , how he thought it would
go. Loughery answered by saying he had no way of
knowing. He then volunteered that all the salesmen had
signed cards. Bums admitted that when the men, without
4 The prime reason . T The Local's president.
b Located across the street from each other. 8 When he voluntarily quit his job.
6 Orem did not testify . 9 At the end of July.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concealment , were discussing the Union , he would join in
and ask them how they thought the election would go. He
did not express his opinion as to how he thought it would go.
He truthfully fixed the time as April and May. He did not
tell employees how to vote , or ask them how they as
individuals intended to vote . These inquiries occurred in a
natural atmosphere with no hint of coercion . The record
indicates no more than an expression of natural curiosity
by Burris , free from hostility . I do not find that a violation
of Section 8(a)(1) was proved by General Counsel's
evidence in support thereof . The one or more innocuous
inquiries as to how employees thought the election would
go, in the circumstances of this case , where union activities
and proclivities were freely discussed by the employees in
the presence of management , were not violative of Section
8(a)(1).
3. In paragraph 5(c) of the complaint it is alleged that
Respondent's agents William George and George Powell
threatened an employee with reprisals because the employ-
ee attended and testified at an R case hearing involving
Respondent.
I have read General Counsel's brief very carefully, more
than several times, but I find no reference to this
allegation.'°
Respondent , through Burris, freely gave Loughery
permission to attend the Board for an R case hearing.
When Loughery came back from the hearing he simply
made a "passing remark" " before George Powell and
others and said he had been told that afternoon by the
Local President Harper that they had mailed him a subpena
to appear at the Board, and he remarked that it must have
been mailed to him at his home on the farm . He said he
hadn ' t gotten it . No one in management had objected to his
testifying at the hearing . Powell12 merely remarked to
him 13 when they both came back from the hearing, and in
the presence of others "You should have said you haven't
received a subpoena and you shouldn ' t have gone."
Loughery clearly and explicitly testified that Powell did not
threaten him with any reprisals because he testified on
behalf of the Union . I find that Powell 's testimony as to
what was said on this occasion is more accurate . Powell told
Loughery that , if it had been he, he would not have honored
a subpena , "until it got into my hands."
I find there is insufficient probative and substantial
evidence that Respondent violated Section 8(a)(1) of the
Act as alleged in paragraph 5(c) of the complaint. I find
definitely that Loughery was threatened with no reprisals
by anyone for appearing and testifying at the R case
hearing.
4. Paragraph 5(d) of the complaint alleges that William
George14 violated Section 8(a)(1) of the Act by telling an
employee how he was going to vote and threatening him
with reprisals for voting for the Union (in July).
Loughery testified that on one occasion , Respondent's
agent , Bill George , said to him , "Del, you worry me."
Loughery asked , "Why?" George allegedly said , "I know
how you are going to vote ." 15 Loughery replied, "You
10 1 concede I may have overlooked it.
11 According to Loughery.
12 An agent of Respondent.
13 According to Loughery.
14 An agent for Respondent.
should know , I have told you before my attitude... .
Allegedly George replied , "Del, I really have no objections
to the Union , but I don't want to be first." That was that.
As Loughery testified , they knew he was a union member
and he had told them as far back as April . During this
alleged conversation , George told him he had heard him
voice his opinion that the Union was badly needed. All
George said was that he had no objection to the Union but
he didn't want to be first . Loughery had told all of
Respondent 's agents that he had joined the Union back in
April. He volunteered this information . Before this
conversation with George about July 15, he had put all of
Respondent 's agents on notice that he would vote for the
Union . George clearly denied any such statement, as
alleged by General Counsel , and, based on his demeanor, I
credit his testimony , but I think this is irrelevant because I
find , assuming arguendo that I credited Loughery in this
regard , George's statements would have been protected by
Section 8(c) of the Act , and contained neither interference,
restraint , or coercion in violation of Section 8(a)(1) of the
Act. George , from April on , knew that Loughery was the
union leader in the shop and must have assumed he'd vote
for the Union .16 Loughery admitted that at the time of this
alleged conversation with George , several dealers had
already lost elections to the Union . George must have
known this . He would have known he would not be "first"
under any circumstances.17
I find insufficient probative evidence to support a finding
of violation as alleged in paragraph 5(d) of the complaint.
5. Paragraph 5(e) of the complaint alleges that George
Powell , an agent of Respondent , questioned employees as
to whether they filed unfair labor practice charges against
Respondent.
General Counsel 's Exhibit 3 shows that , on July 16, the
District Lodge of the Union, as plainly set forth in the
charge , filed an 8(a)(5) charge against Respondent.
Loughery is nowhere mentioned in the charge.
Loughery testified that , on July 17, he had a conversation
with George Powell in Powell 's office . According to
Loughery Powell asked him, "Did you file unfair labor
charges at" the Board . According to Loughery, Powell
added , "If you did , I want you to know I will not stand for
it." Loughery allegedly denied that he had filed the charges.
Powell admitted that he had received the charge and he
didn't understand it and "we" inquired around and nobody
made any comments . Slightly later he called the firm which
was representing him and was told in effect not to worry
about it because many charges had been filed and to send
theirs to them . He truthfully denied that he questioned
Loughery or any other employee as to whether he had filed
a charge , because there was no individual employee's name
on it. He probably told Loughery, as well as other
employees , that the machinists had filed an 8(a)(5) charge
and asked him if he knew anything about it. No one seemed
to know what the charge was about . I credit Powell. I find
no violation of the Act in Powell making such general
inquiries as to what the charge was about . He did not ask
15 At all times, beginning in April, Loughery made it plain to all that he
was for the Union.
16 Loughery had made this clear.
17 Such a conversation simply would not have taken place.
B & G CHRYSLER-PLYMOUTH, INC.
any individual employee if he had filed the charge. General
Counsel has failed to prove by a preponderance of the
probative and substantial evidence that Respondent
violated Section 8(a)(1) of the Act as alleged in paragraph
5(e) of the Act.18
The 8(a)(3) allegation with respect to Loughery
While from time to time I have not credited Loughery's
testimony , I do find Respondent 's witnesses' testimony
against their substantial interest to be true and correct and
substantial evidence establishing a violation of Section
8(a)(3) and ( 1) with respect to Loughery's discharge.
The record reveals in its substance that Respondent was
opposed to union organization in its sales dealership.
Respondent was definitely opposed to being organized by
the Union so far as its salesmen were concerned. It is true
that I have found some of the alleged 8(a)(l) unproved by a
probative and substantial amount of the evidence. This was
due to the lack of substantial evidence. I find ample proof
of the 8(a)(3) and ( 1) violations as admitted by Respon-
dent's witnesses . 19 I consistently advised witnesses that I
did not wish to put words in the witnesses' mouths, but that
General Counsel on cross-examination might do so.
We are here dealing with the alleged discharge of
Loughery by Burris and his superiors, and refusal to
reinstate since "July 31" or "August 1.- 20
First may I find that Respondent did not wish the Union
to represent the Respondent 's sales employees . Loughery
made Respondent know according to Respondent 's brief
(p. 21) that the Union was a "badly needed thing."
Respondent in its brief states (p. 21) that the Union "was
unstable and would not be conducive to sound labor
relations."
Liddle truthfully testified that Burns, in front of himself,
Loughery, and Orem,21 said that an employee who got too
tied up with the Union would not be employed by any
member of the Association. This was in June.
I credit Liddle's testimony that at this time , Loughery,
Orem, and he were told the Association would stick
together and was much against the Union.
It might appear on its face that, when Loughery's sales of
cars dipped to four or five in July, Respondent discharged
him for this reason but not for union or protected concerted
activities.
For Loughery, I find to the contrary. Respondent itself
made clear and abundantly clear that Loughery was
discharged for union and other protected concerted
activities.
I find all of Loughery's ^supervisors^ or Respondent's
agents knew he was a union agent or activist at all material
times. They all knew at or about the time he signed the card
for the Union in April that he was active for the Union.
Before July 25, he had put all of his Employer's agents on
notice as to his voting intentions. Loughery had made it
16 Noted particularly I do not credit Loughery's testimony in this
regard
19 Particularly Burris who played the most prominent role in the
discharge
20 I find the actual date of discharge was August 1
21 In the unit
22 Even at company sales meetings
285
clear to Respondent that he was attending union
meetings . 22 Burris admitted he considered Loughery "the
leading and most outspoken advocate of the Union."
Burris testified that Loughery by his union activities was
interfering very much with the success of Respondent's
business . "This" was one of the reasons he was terminated.
There was no termination by mutual agreement.
Burris admitted that one of the reasons Loughery had
been discharged was that he had been telling his fellow
employees that things had deteriorated so that the only way
the men could work successfully would be to unionize.
Loughery would go to the union meetings and come back
and report to the men and Burris would overhear the
conversations. Loughery would phone the union president
(Harper) about union problems. Bums was aware of this.
Burris admitted that he knew Loughery had been telling
the men that things had so deteriorated that the only way
the men could successfully earn a living would be to
"organize ." Loughery had conversations along these lines
with a much later hired employee, Guy Smith.23
Burris testified unhesitatingly that Loughery was a "good
retail salesman . . . a professional retail salesman."
According to Bums, Loughery was discharged mostly
because of his "attitude" and secondly because of his
"sales."
According to Burns, he laid off a "boy" 24 who claimed
"he could not work with Loughery who" demoralized him.
It appears these remarks were made before 1969 and the
"boy" quit or was terminated before 1969.
Powell admitted knowledge that Loughery was active in
behalf of the Salesmen's Union since April. It "was a fairly
open subject to discussion around the business show floor
area and sort of grouping together of the salesmen and
conversations being tossed back and forth." Union
membership , etc., was an open area of discussion before the
scheduled and canceled election. Loughery's activities in
behalf of the Union were well known to employees and
Respondent 's agents.
When Burris terminated Loughery and said, according to
him, "I guess you know why you are in here," 25 Burris
admitted that at that time he considered Loughery as a
good retail salesman-a professional retail salesman.
Burris, as did others of the management group, found
Loughery kept other employees away from doing a good
job of selling by his union activities.
Burris testified he terminated Loughery (1) because of
mostly his "attitude" and (2) poor production, in July.26
Loughery received plaques as "salesman of the month" in
March, April, and May27 from Respondent. Of all eligible
new-car salesmen for those months, Loughery sold the most
cars. Burris believed he had five salesmen in March and in
April about three or four and he "thought" they had three
in April. When Bums discharged Loughery, he did not
mention his "attitude," 28 but only "poor" production.
Burris knew that Loughery was telling his fellow
23 Hired a couple of days before Loughery was discharged
24 Loughery was 60
25 1 find Loughery was not there
26 He sold four or five cars
27 It is common knowledge that even the best of salesmen can have
"bad" months
28 Which was allegedly the prime reason for the termination
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that car salesmen work had so deteriorated over
the last several years that the only way salesmen
successfully could earn a living would be to unionize. I find
Burris considered this to be a bad attitude and was included
in the "prime" reason for his discharge. Allegedly,
Loughery had similar conversations with a new employee,
Guy Smith.29 It appeared from company records examined
by Burris that Smith was hired on July 28. He hired another
allegedly union man who had been walking a picket line,
DeAtlay, on July 29.
Bums admitted that in that business a "good salesman"
could have a poor month of selling. Loughery was
terminated mostly because of his "attitude" in demoralizing
the other salesmen. "Part of his attitude was that he would
sit down with the men and tell them about how things have
been deteriorating over the years and they should join
together and get themselves regular wages." He was
discharged, at least partly, according to Burris because he
had been telling fellow salesmen "the men should get
themselves organized so that they could get a regular good
pay." Burris found Loughery's attitude bad and demoraliz-
ing, "because he was actively attempting at work, and
maybe when he was off from work to organize the employees
into the machinist union because he was telling them things
have deteriorated in his opinion." 30 Burris further testified
that Loughery would state that in his opinion "they needed
a union to represent them and that if they didn't have such
representation, things would go from bad to worse." I find
this all part of Loughery's "bad attitude" for which he was
similarily discharged. Bums found Loughery's outspoken
advocacy of the Union was demoralizing the morale of his
employees, and that his union activities were interfering
very much with the success of Respondent's business, and
that was at least one of the reasons for termination of
Loughery.
Partner William George testified he knew Loughery was
the union leader in the shop. They (his partner, Powell and
Bums, and he) decided to terminate Loughery about 2 days
before his discharge. Burris had told him he had a salesman
who was demoralizing the other men and falling down in
his own efforts, because he was spending too much time
trying to organize the other men and explaining to them
"that if they had a Union in there they could get a regular
wage." George didn't remember the name of the man
(obviously Loughery) but he told Burris to get rid of the
man.31
Incidently, I do not credit Burris in his testimony that he
had a person-to-person conversation with Loughery on the
day of the latter's discharge 32 I credit Loughery's
testimony to the contrary. The termination was not by
"mutual agreement," but Burris told Loughery, by
telephone, he was being laid off for selling only five cars in
July.
I consider it immaterial, but Respondent seemed to set
great store by it, that Guy Smith testified that, out of the
presence of any supervisor, Loughery remarked to him that
29 Smith allegedly had been fired for union activities by another car
dealer.
30 He had been a car salesman for about 20 years. Further there is no
evidence of a no-solicitation rule at Respondent, and the Union was a
common topic of conversation among employees and management on the
premises.
business was bad, and Smith had replied that business was
also bad at his former employer.
Also, I note that it appears to me from the entire record
that in addition to Loughery Respondent had but one other
new car salesman in July 33 until its near end when they
hired two more, probably in contemplation of Loughery's
termination.34 Perhaps I am merely speculating but since
the number of salesmen decreased from five to no more
than two in a few months, that not only Loughery's
business but Respondent's business decreased. But for the
admitted discriminatory reasons, Respondent would have
held on to a very good, professional salesman. Bums
admitted more than several times that the main reason for
discharging Loughery was that he was vigorously endeavor-
ing to organize his fellow employees into the Union. It is
just too bad if Burris and the big bosses thought this was
demoralizing to Loughery and his fellow employees. If
Loughery's union activities were demoralizing other
employees, which I decline to decide, that is "the price
which must often be paid in order that the rights
guaranteed by Section 7 may be preserved." El Mundo, Inc.,
92 NLRB 724, 726. It was protected union activity, and his
discharge for such violated Section 8(a)(3) and (1) of the
Act. His alleged poor production was a mere pretext. Out of
his past 5 months of employment he was three times
awarded a lovely plaque as "salesman of the month."
As Respondent admits in its brief, Respondent was of the
opinion that the Union was unstable and would not be
conducive to sound labor relations. Such opinion is by no
means violative of the Act but it is with this background
that I evaluate Respondent's admissions of discharge for
engaging in union activities as evidence of 8(a)(3) and (1)
violations even if it thought that such protected activities
"demoralized" other employees and Loughery.
Around July 1, George talked about the disadvantages of
the Union at a general sales meeting, saying it was on the
"wrong foundation" and they "were strike happy," and
Loughery said "it is a badly needed thing for the retail car
salesmen in Kansas City." I find Respondent displayed
union animus.
I find, without hesitation, that Loughery was discharged
by Respondent because of his union and other protected
concerted activities in violation of Section 8(a)(3) and (1) of
the Act.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. At all times material, Respondent has been an
Employer engaged in commerce within the meaning of the
Act.
2. At all times material, the Union has been a labor
organization within the meaning of the Act.
3. Some time during May through July, Burris,
Respondent's agent, told employees that they would not be
31 George subsequently testified he knew the man Bums was talking
about was Loughery. He subsequently denied some of his earlier
incriminatory testimony.
32 August 1.
33 And perhaps no other.
34 They may have been disenchanted union members.
B & G CHRYSLER-PLYMOUTH, INC. 287
hired by Kansas City Automobile Dealers if they got tied
up "too tight" with the Union, since the Association would
not let them work. He told these employees that this is what
happened to the Local's president and a few others. Any
employee who got "too strong" for the Union couldn't
work for an Association employer.35 These statements were
violative of Section 8(a)(1) of the Act.
4. By discriminatorily discharging Loughery on July 31
or August 1, and by failing and refusing to reinstate him
since such time, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. General Counsel has failed to establish by a fair
preponderance of the credited evidence that Respondent
committed any other unfair labor practices as alleged in
General Counsel's complaint, within the meaning of the
Act.
THE REMEDY
The unfair labor practices found to have been committed
by Respondent, particularly the discharge of and failure to
reinstate Loughery,36 strike at the very heart of the Act.37
Respondent will be ordered to reinstate Loughery to his
former or substantially equivalent employment and to
make Loughery whole for any loss of pay he may have
suffered because of the discrimination against him, by
paying to him a sum of money equal to the amount he
would normally have earned from August 1, the date of the
discrimination against him to the date Respondent makes a
firm and good-faith offer of reinstatement to him.38 He
shall be made whole in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest computed
in the manner described in Isis Plumbing & Heating Co., 138
NLRB 716.39
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein, it is recommended
that Respondent, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively telling employees that they would not be
hired by other dealers particularly fellow members of the
Association to which they belong, if they got tied up "too
tight" with the Union since the other dealers would not let
them work, and that this had already happened to other
union activists.
(b) Discouraging membership in the Union or any other
labor organization by discharging or in any other manner
discriminating against its employees with regard to their
hire or tenure of employment, or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to join
the Union or be active in the Union, or assist the Union or
any other labor organization or otherwise engage in
activities protected by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to immediately reinstate Loughery to his former
job or, if his job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges and make him "whole" in the
manner set forth in the Remedy portion of this Decision for
any loss of earnings by reason of Respondent's discrimina-
tion against him.
(b) I note that Loughery is at least 60 years of age, but I
nonetheless direct Respondent to notify Loughery, if
presently serving in the Armed Forces of the United States,
of his full right to reinstatement upon application in
accordance with the Selective Service Act, and the
Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
(c) Preserve and upon request, make available to the
Board or its agents all records necessary to determine the
amount of backpay due under this Recommended Order.
(d) Post at its Kansas City, Kansas, and Kansas City,
Missouri, facilities, copies of the attached notice marked
"Appendix." 40 Copies of said notice on forms provided by
the Regional Director for Region 17, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily displayed. Respondent shall
take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.41
35 Respondent belonged to the Association.
36 His discharge was precipitous and without any warning
37 A J Krajewskl Manufacturing Co, Inc, 180 NLRB No 173
38 Interim earnings, etc, should be deducted
39 The Charging Party moves that the interest paid should be more than
6 percent so as to be more in keeping with our inflationary economy I can
see much justice in this request but I have no Board precedent for granting
Charging Party's motion I recommend to the Board that if it should review
this case it might well grant the Charging Party's motion and award at least
9-percent interest to Loughery, in connection with money due and owing to
him
40 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading, "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
41 In the event that the Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
You are free to join or not to join any Union of your
choice.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE DO NOT have the right to interfere with, restrain,
or coerce you in your choice.
WE WILL NOT coercively tell any of our employees
that they will not be hired by other automobile dealers,
particularly fellow members of the Automobile Dealers'
Association to which we belong, if they get tied up "too
tight" with District Lodge 71, International Association
of Machinists and Aerospace Workers, AFL-CIO, or
any other Union, and that such nonhiring had
happened to other employees.
WE WILL NOT discharge or in any other way
discriminate against any of our employees because of
their activities in or assistance to the above-named
Union or any other union or because of other protected
concerted activities.
WE WILL NOT in any other manner interfere with our
employees in exercising their rights to join or assist, or
to refrain from joining or assisting, any union, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as authorized by Section 8(a)(3) of the Act.
WE WILL offer to immediately and fully reinstate
Loughery to his former job or, if that job no longer
exists, to a substantially equivalent position of employ-
ment.
WE WILL pay Loughery any wages he lost because of
our discrimination against him with interest at 6
percent.
B & G CHRYSLER-
PLYMOUTH, INC., AND ITS
SUCCESSOR BILL GEORGE
CHRYSLER-PLMOUTH, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Delbert C. Loughery, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri, 64106, Telephone 374-5181.